| Altschuler v Jobman 478/480, LLC. |
| 2016 NY Slip Op 00035 [135 AD3d 439] |
| January 7, 2016 |
| Appellate Division, First Department |
[*1]
| Lane Altschuler, Respondent, v Jobman478/480, LLC., Appellant. |
Belkin Burden Wenig & Goldman, LLP, New York (Magda L. Cruz ofcounsel), for appellant.
Bernstein Liebhard LLP, New York (Christian Siebott of counsel), forrespondent.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered January 18,2013, which, to the extent appealed from as limited by the briefs, denied defendantlandlord's motion for summary judgment dismissing plaintiff tenant's rent overchargeclaim, and granted plaintiff's cross motion for summary judgment as to liability on thatclaim; order, same court and Justice, entered April 14, 2015, which, to the extentappealable, denied defendant's motion to renew the prior motions for summary judgmentand plaintiff's motion for a so-ordered subpoena; order, same court (Geoffrey D. Wright,J.), entered June 8, 2015, which granted plaintiff's motion for summary judgment in theamount of $818,157.30 on his rent overcharge claim; and order, same court and Justice,entered August 20, 2015, which, among other things, directed the entry of judgment inplaintiff's favor in the amount of $876,619.10, plus interest, unanimously affirmed, withcosts. Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered October1, 2013, which, among other things, granted plaintiff's motion for a so-ordered subpoenadirecting the Division of Housing and Community Renewal (DHCR) to producedocuments sufficient to determine the apartment's proper base rent, unanimouslydismissed, without costs, as abandoned and moot.
Supreme Court correctly found that defendant improperly deregulated the apartmentwhile it was receiving J-51 tax benefits, entitling plaintiff to rent-stabilized status for theduration of his tenancy and to collect any rent overcharges (see 72A Realty Assoc. v Lucas,101 AD3d 401, 401-402 [1st Dept 2012]). We reject defendant's contention that itproperly deregulated the apartment in reliance on a 1996 DHCR advisory opinion. TheCourt of Appeals rejected that opinion in Roberts v Tishman Speyer Props., L.P. (13 NY3d 270[2009]). In any event, defendant failed to show that its deregulation of the apartment wasproper under the advisory opinion, as the record indicates that the apartment was rentstabilized solely because of the receipt of J-51 tax benefits (see id. at 281).Defendant's arguments otherwise are improperly raised for the first time on appeal, andwe decline to consider them (see DiLeo v Blumberg, 250 AD2d 364, 366 [1stDept 1998]). As an alternative holding, we reject them on the merits.
Plaintiff claimed that defendant engaged in a "fraudulent scheme" to deregulate theapartment by increasing the 1995 rent of $422.04 to over $2,000 in subsequent years,executing market rent leases during a time it was receiving J-51 tax benefits, failing toprovide him with a lease rider, and failing to file the required annual registrations withDHCR during his tenancy. Defendant failed to refute these allegations of fraud. Itsargument that the apartment was deregulated because it was renovated in 1995 isunavailing, as it fails to support it with sufficient evidence. The affidavit of its leaseadministrator, stating that at least $6,296.14 of individual apartment capitalimprovements were performed prior to plaintiff's first lease, is insufficient, as [*2]it was unsupported by "bills from a contractor, anagreement or contract for work in the apartment, or records of payments for the [claimedimprovements]" (Lucas, 101 AD3d at 402-403).
Because plaintiff established a colorable claim of fraud, Supreme Court properlydisregarded the rent charged four years prior to the filing of the rent overcharge claim,and properly examined the entire rent history to determine the legality of the base rent(see Matter of Grimm v State ofN.Y. Div. of Hous. & Community Renewal Off. of Rent Admin., 15 NY3d358, 366 [2010]). Further, the application of DHCR's default formula waswarranted, given the unreliability of the rental history since 1995, due to defendant'sfailure to file a number of the annual rent registrations prior to the commencement of thisaction (see Levinson v 390 W.End Assoc., L.L.C., 22 AD3d 397, 400-401 [1st Dept 2005]).
Supreme Court properly imposed a rent freeze on the apartment, since defendantcollected the unlawful rent overcharges before filing late rent registrations (see Matterof Hargrove v Division of Hous. & Community Renewal, 244 AD2d 241 [1stDept 1997]). Supreme Court also properly awarded treble damages, because defendantfailed to establish, by a preponderance of the evidence, that the overcharge was notwillful (id.).
A trial is not required, as there are no undisputed facts or unresolved issues (seeAdria Realty Inv. Assoc. v New York State Div. of Hous. & CommunityRenewal, 270 AD2d 46 [1st Dept 2000]).
To the extent the issue has not been abandoned on appeal (see McHale v Anthony, 41AD3d 265, 266-267 [1st Dept 2007]), Supreme Court properly denied defendant'smotion to renew, since defendant did not provide a reasonable justification for its failureto present the new affidavit on the earlier motions (see CPLR 2221 [e] [3]; Whalen v New York City Dept. ofEnvtl. Protection, 89 AD3d 416, 417 [1st Dept 2011]).
Defendant's appeal from the order granting plaintiff's motion for a so-orderedsubpoena is deemed abandoned, as defendant failed to raise any arguments on appealwith respect that order (see McHale, 41 AD3d at 266-267). Alternatively, theappeal has been rendered moot by DHCR's subsequent submission of the requesteddocuments to plaintiff (seeNathanson v Tri-State Constr. LLC, 48 AD3d 373, 374 [1st Dept 2008]).
We have considered defendant's remaining contentions and find them unavailing.Concur—Acosta, J.P., Andrias, Manzanet-Daniels and Kapnick, JJ. [PriorCase History: 2013 NY Slip Op 30208(U).]