82 Thomas Street Realty Corp. v. Robert Harding

(Civ. Ct. N.Y. Cty. 11/18/04)

We represented: Petitioner-Landlord

Timmie Erin Elsner, J.H.C.



Upon the forgoing papers, the Decision/Order of this Court is as follows:


     Petitioner, 82 Thomas St. Realty Corp. (petitioner) seeks possession of the premises known as and located at 140 West Broadway, apartment 2A (premises) on the basis that the lease for the tenant of record, Robert Harding, (respondent) expired by its own terms on February 28, 2004. Respondent alleges he is a rent stabilized tenant entitled to a renewal lease. Respondent moves to dismiss the proceeding pursuant to CPLR 3211 (a)(7) for failure to state a cause of action. Petitioner cross-moves for summary judgment.


     In or about 1973, respondent moved into the premises with his former wife. The pair separated in 1976 and respondent vacated the premises. On August 3, 1979, respondent surrendered all rights, title mad interest in the premises to his former wife as part of a formal written separation agreement.

     In 1983, the premises were found to be subject to Article 7-C of the Multiple Dwelling Law (Loft Law) by the New York City Loft Board (Loft Board). The building was registered as an interim multiple dwelling, mad petitioner undertook steps to legalize the premises in order to comply with code requirements. A residential certificate of occupancy was issued for the premises on December 9, 1988, at which time the premises were deemed "legalized". Thereafter, on November 13, 1989, the petitioner filed an application with the Loft Board for a post-legalization rent adjustment, to set rent stabilized rents for the premises as well as all other covered units in the building.

     On February 7, 1994, file respondent's former wife, her current husband and respondent entered into an agreement whereby they sold the rights and fixtures in the unit to petitioner. As set forth in the agreement, in pertinent part:

"10. Robert Harding hereby represents that he withdraws any claim he has to occupancy of the subject premises and/or to claim rights under Article 7-C of the Multiple Dwelling Law and/or any other form of rent regulations.

11. Simultaneously with the execution hereof, Robert Harding and landlord execute a rent stabilized vacancy lease agreement for the subject premises...for a term of two years commencing February 1, 1994 and ending February 28, 1996 at a rate of $2,000.00 month and Robert Harding shall pursuant to said lease pay simultaneously with execution hereof, the first month's rent and deposit $2,000.00 with the landlord as security under said lease.

12. The parties hereto agree that this agreement constitutes a post-June 21, 1982 waiver of any and all rights which tenants and Robert Harding may have pursuant to Multiple Dwelling Law section 286 (6) and section 286(12) and constitutes a purchase by the landlord of any such rights which the tenants and Robert Harding may have with respect to the aforementioned fixtures and/or improvements for the consideration set forth herein.

14. In consideration for the (sic) Robert Harding's surrender of any and all right, title and interest he may have in the fixtures and improvements contained in the subject premises, if any, pursuant to MDL section 286(6) and 286(12) or in occupying said premises as an Article 7-C tenant and his full and continued compliance with all of the terms, conditions and obligations of the Lease for the subject premises...as well as all applicable statute (sic) and regulations of the Federal, State, and municipal agencies, landlord agrees to pay Robert Harding the sum of $6,000.00 in monthly installments of $250.00 commencing February 1, 1994 through February 1, I996."

     All parties to the agreement were represented by counsel. The court further notes that respondent was represented by counsel separate and apart from that of his former wife and her husband.

     Upon execution of the agreement, the respondent and petitioner signed a two-year lease, the terms of which were memorialized on a pre-printed form. At no point did the parties execute any stabilized rider. No initial rent registration was generated nor were the premises registered as stabilized with the New York State Division of Housing and Community Renewal.

     A copy of the agreement, together with its exhibits, which included the lease between petitioner and respondent, was filed with the Loft Board for review on February 10, 1994. As of that date, the Loft Board had not yet issued its ruling with respect to the post-legalization rent adjustment request submitted in 1989.

     By order, dated October 20, 1994, which bears a stamp indicating that it was mailed November 4, 1994, the Loft Board ultimately addressed the issues raised in the rent adjustment request, including but not limited to, the regulatory status of covered units in the building. As set forth therein:

"It is hereby ordered that the owner's application, under docket #LE-0067, requesting that code compliance rent adjustments be set pursuant to the owner's mad tenants' agreements is wanted. The initial regulated rents for units 2B, 3B, 5A, and 5B are set according to the schedule set forth above, and these rents, including any subsequent RGB increases shall be registered forthwith with the Division of Housing and Community Renewal (DHCR). It is further ordered that unit 2A is a rent-deregulated residential unit, pursuant to the Sales Record filed February 7, 1994." (emphasis added)

The Order also set forth a timetable for reconsideration of its determination.

"A party aggrieved by a determination of the Loft Board may file an application for reconsideration of a determination. In accordance with 29 RCNY 1-07 Co), "(t)he reconsideration application must be received by the Loft Board within 30 days of the date of mailing of the final determination to the parties... Filing of an application for reconsideration shall not toll the statute of limitations for purposes of initiating an Article 78 Proceeding."

     Neither petitioner nor respondent herein filed a request for reconsideration or commenced an Article 78 proceeding challenging the Loft Board's specific ruling that the premises were exempt from any regulatory coverage. The premises were never registered with DHCR as rent stabilized and respondent at no point filed a complaint with the agency alleging stabilized status. Over the years, petitioner and respondent entered into renewal leases with rent increases equivalent to those set by the Rent Guidelines Board. The last lease expired on February 28, 2004.


     29 RCNY 1-07, which sets forth the rules and regulations governing the Loft Board's reconsideration of its determination, provides in pertinent part:

(a) The Loft Board, upon the application of a party aggrieved by a determination of the Board, may, ha its sole discretion, reconsider such determination ....

* * *

(b) ... To be considered timely, a reconsideration application must be received by the Loft Board within 30 days of the date of mailing by the Lot Board of the determination sought to be reconsidered ....

* * *

(d) A Loft Board determination pursuant to section 1-06 of these rules shall be the final agency determination for the purpose of judicial review, unless a timely application for reconsideration of the determination has been filed ....

     The court's function is to determine if there exists a triable issue, or if arguably there is a genuine issue of fact. (S.J. Capelin Assoc. lnc. v Global Mfg. Corp., 34 NY2d 338, 341 [1974]; Color by Pergament, lnc. v Pergament, 241 AD2d 418 [P_ Dept 1997].) In this instance, no issues of fact exist and the matter is, therefore, proper for summary disposition. (See Domen Holding Co. v Aranovich, 1 NY3d 117 [2003] citing, Frank v Park Summit Realty Corp., 175 AD2d 33, 34 [1st Dept 1991].)

     The record clearly reflects that the respondent failed to timely apply for a reconsideration of Loft Board Order, dated October 20, 1994, which determined that the premises were "a rent-deregulated" unit. Moreover, respondent failed to timely challenge said determination by commencing an Article 78 proceeding within the four-month statute of 1imitations from the date of the Left Board's determination. (See CPLR 217; Matter of Zabari v New York City Loft Bd., 245 AD2d 200 [1st Dep't 1997].) The law is clear that once the Loft Board has made a determination, the court must defer to the Loft Board's sound discretion in the absence of arbitrary and capricious action and lacks jurisdiction to review the determination in the first instance. (See Morris & Ezra Missry d/b/a Victoria Realty v Ehlich & Yumi Miyanishi d/b/a St. Marc Studio, 765 NYS2d 176 [2003] citing Matter of Perlrose Realty Corp. v New York City Loft Bd., 145 AD2d 159, 161 [1st Dept 1989]; Suraci v. Mucktar, 187 Misc2d 848, 850 [Civ Ct NY County 2000].) Based upon the foregoing, the Court can not consider respondent's claims that he is subject to rent regulation.


     Petitioner's motion seeking dismissal of respondent's affirmative defenses, awarding summary judgment and for related relief, is granted. Petitioner is awarded a final judgment of possession which along with a warrant of eviction, shall issue forthwith. Execution of the judgment and warrant are stayed through January 31, 2005 provided respondent pays use and occupancy in an amount to be determined by the court no later than the fifth of each month during the pendency of the stay.

     This matter is restored to the Part F calendar, December 8, 2004, for the purposes of scheduling a hearing to determine the market use and occupancy as well as the amount of attorneys fees to be awarded to petitioner as the prevailing party. Although respondent's claims, relating to breach of warranty of habitability, do not constitute a valid defense to this holdover proceeding (see Goethals Mobile Park, lnc. v Staten Is. Meadowbrook Park Civic Assn., lnc., 208 AD2d 896 [2d Dept 1994]), they may be asserted as a defense to petitioner's claims relating to market use and occupancy. (see Evens v Charap, NYLJ, Dec. 18, 1991 at 23, col. 1 [Civ Ct NY County].)

     This constitutes the Order and Decision of this court.

Dated: New York, New York
     November 18, 2004