| Stulz v 305 Riverside Corp. |
| 2017 NY Slip Op 04066 [150 AD3d 558] |
| May 23, 2017 |
| Appellate Division, First Department |
[*1]
| Susan Stulz et al., Appellants, v 305 Riverside Corp.,Respondent. |
Sokolski & Zekaria, P.C., New York (Daphna Zekaria of counsel), for appellants.
Horing Welikson & Rosen, P.C., Williston Park (Niles C. Welikson of counsel), forrespondent.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered February 26,2016, which granted defendant's motion for summary judgment dismissing the complaint,unanimously affirmed, without costs.
As a result of the Court of Appeals decision in Roberts v Tishman Speyer Props., L.P. (13 NY3d 270 [2009]), atenant is entitled to rent-stabilized status for the duration of the tenancy and to collect any rentovercharges, where an apartment was improperly deregulated at a time when the landlord wasreceiving J-51 benefits (see 72A RealtyAssoc. v Lucas, 101 AD3d 401, 401-402 [1st Dept 2012]).
It was undisputed that defendant received J-51 benefits and deregulated plaintiff's apartmentin 2001, based on individual apartment improvements (IAIs). Defendant's answer conceded theimproper decontrol, which was based on the Division of Housing and Community Renewal'sthen policy, and it reimbursed plaintiffs for the overcharges, utilizing the rent on the base date offour years prior to the filing of the complaint to compute the overcharges (CPLR 213-a).
Plaintiffs argue that substantial indicia of fraud by defendant post-Roberts and inconnection with the IAIs permitted them to utilize the last legal rent paid by a rent-stabilizedtenant in the apartment for the calculation of the current legal rent and overcharges (see Altschuler v Jobman 478/480,LLC., 135 AD3d 439, 440 [1st Dept 2016], lv dismissed 28 NY3d 945[2016]).
The court properly disregarded the claimed evidence of fraud by defendantpost-Roberts as irrelevant, and the record does not reflect evidence sufficient to raise aquestion of fact as to defendant's stated reliance on DHCR's policy in decontrolling the apartment(see Todres v W7879, LLC, 137AD3d 597, 598 [1st Dept 2016], lv denied 28 NY3d 910 [2016]). Defendantprovided a construction contract, cancelled checks, and the testimony of the contractor tosubstantiate the IAIs.
Dismissal of the declaratory judgment and injunctive relief causes of action was appropriateas these claims were moot (see Amherst & Clarence Ins. Co. v Cazenovia Tavern,59 NY2d 983, 984 [1983]). The court did not improvidently exercise its discretion in denyingplaintiffs' claim for attorneys' fees, based on a finding that defendant's conduct was notwillful.
We have considered plaintiffs' remaining arguments and find them unavailing.Concur—Acosta, P.J., Renwick, Mazzarelli, Andrias and Manzanet-Daniels, JJ.