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Reich v Belnord Partners, LLC

Supreme Court of New York, Appellate Division, First Department

 January 15, 2019, Decided ; January 15, 2019, Entered

7212, 159841/16

Opinion

 [*482]  [**411] Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered September 14, 2017, which granted defendants' motion to dismiss the claim for rent overcharges and denied plaintiffs' cross motion for summary judgment pursuant to CPLR 3211 (c), unanimously affirmed, without costs.

Plaintiffs' claim for rent overcharges based on defendants' failure to charge rent stabilized rents while receiving J-51 tax benefits was correctly dismissed pursuant to CPLR 213-a. Consistent with both Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal (164 AD3d 420, 425-426, 84 NYS3d 91 [1st Dept 2018], lv dismissed 32 NY3d 1085, 90 NYS3d 633, 114 NE3d 1086 [2018]) and Taylor v 72A Realty Assoc., L.P. (151 AD3d 95, 105-106, 53 NYS3d 309 [1st Dept 2017]), there was no basis for considering the subject apartment's rental history more than four years before the commencement of the overcharge claim. In Matter of Regina Metro. Co., LLC (164 AD3d at 425-426), we held that fraud is the only exception to the four-year look back period to determine the legally regulated rent on the base date. There is no fraud here. In Taylor v 72A Realty Assoc., L.P. (151 AD3d at 105-106), we permitted a longer look back period under certain circumstances not necessarily indicative of fraud. Those circumstances [***2]  are not present, where, as here, the tenant received a rent stabilized lease and the landlord registered the rent with DHCR more than four years before any rent overcharge complaint was filed.

In view of the dismissal of the rent overcharge claim, plaintiffs' motion for summary judgment on that claim and the dependent claims for treble damages and attorneys' fees was correctly denied. Plaintiffs abandoned their application for summary judgment on the claims for declaratory and injunctive relief by failing to make any arguments in support thereof on appeal. Concur—Renwick, J.P., Gische, Kahn, Kern, Moulton, JJ.

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168 A.D.3d 482 *; 91 N.Y.S.3d 410 **; 2019 N.Y. App. Div. LEXIS 232 ***; 2019 NY Slip Op 00220 ****; 2019 WL 191462

 [****1]  Elizabeth Reich et al., Appellants, v Belnord Partners, LLC, et al., Respondents.

Subsequent History: Motion granted by Elizabeth Reich v. Belnord Partners, LLC, 34 N.Y.3d 1033, 2019 N.Y. LEXIS 3500, 138 N.E.3d 1101 (Dec. 17, 2019)

Affirmed by, Certified question answered by Matter of Regina Metro. Co., LLC New York State Div. of Hous. & Community Renewal, 2020 N.Y. LEXIS 779, 2020 NY Slip Op 02127 (N.Y., Apr. 2, 2020)

CORE TERMS

rent, overcharge, summary judgment, plaintiffs', claim for rent, four year, circumstances, defendants', stabilized, correctly