2904 ATLANTIC AVENUE LLC v. HOYTE (2024)

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent's motion to reargue and renew the court's March 7, 2024 decision (motion seq. 2), and any other relief as the court may find appropriate:

Papers Numbered

Notice of Motion with affidavits and exhibits 1 (NYSCEF #52-53)

Affirmation in Opposition and exhibits 2 (NYSCEF #58-61)

Affirmation in Reply and exhibits 3 (NYSCEF #62-63)

The procedural history of this non-payment proceeding is recounted in the court's previous order dated March 7, 2024. In the March 7, 2024 decision, the court granted in part and denied in part respondent's motion for summary judgment and adjourned the matter to March 27, 2024 for a pre-trial conference to pick a hearing date on damages on the overcharge claim. Respondent now moves for re-argument/renewal relief stating that the court misapprehended the law. The parties, both represented by counsel, fully briefed the issue. On May 17, 2024, the court heard argument and reserved decision.

Motion to Reargue/Renew (Seq. 2)

A motion to re-argue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion” (CPLR § 2221[d][2]). Respondent moves to reargue on the basis the court misapprehended Regina (Regina Metropolitan Co. v. New York State Division of Housing and Community Renewal, 35 NY3d 332 [2020]) when deciding respondent's motion for summary judgment. Respondent argues that Regina does not bar respondent from seeking overcharge damages that petitioner was already liable for at the time the Housing Stability and Tenant Protection Act (“HSTPA”) was adopted. Respondent furthers argues her motion to reargue should be granted because the court did not consider the Division of Housing and Community Renewal (“DHCR”) regulation that was promulgated on November 8, 2023. Petitioner opposes the motion on the basis that respondent did not refer to all the prior papers in this instant motion. Petitioner further opposes the motion reargue on the basis the court correctly applied Regina as it relates to respondent's overcharge claim.

A motion to renew requires a “reasonable justification” for failure to present those facts prior in the original papers. Respondent is seeking to renew her motion for summary judgment on the basis that the court did not consider the DHCR's regulation that was promulgated on November 8, 2023, which was after the initial motion for summary judgment was filed. Respondent posits if the court had considered DHCR's regulation, the court would have found in favor of respondent and found the lookback period for recovery of ordinary damages to be March 21, 2017 and of treble damages to be June 15, 2017. Petitioner also opposes the motion renew arguing that the change of law happened prior to the court issuing its March 7, 2024 decision, and respondent concedes that point. Petitioner's opposition that respondent should have raised the new DHCR regulation is unavailing as the DHCR regulation had not yet been promulgated at the time respondent filed her motion for summary judgment. Even if respondent were to have raised this DHCR regulation in her reply papers, the court would not have considered that as the purpose of reply papers is not to raise new arguments for the relief sought in the movant's motion but rather to address arguments made in opposition to the movant's position. (USAA Fed. Sav. Bank v. Calvin, 145 AD3d 704 [2d Dept 2016]).

The court rejects petitioner's argument that respondent's motion should be denied due to technical defects. As there is no prejudice to petitioner resulting from respondent's failure to attach the pleadings as exhibits to respondent's motion for summary judgment, the court will decide the instant motion on its merits. Further, CPLR § 2001 allows the court to ignore technical non-prejudicial errors. The court chooses to exercise its discretion to do so here. As respondent was unable to raise the newly promulgated DHCR regulation as part of her original motion for summary judgment, the court grants respondent's motion for re-argument and renewal. Having granted re-argument and renewal, the court takes into account the DHCR regulation promulgated on November 8, 2023. The DHCR regulation regarding rent overcharge states the proposed amendments are consistent with the legislature's requirements and Regina. The DHCR regulation language regarding rent overcharge is substantially similar to RSC § 213-a. However, the court finds that this regulation is inconsistent with the finding in Regina regarding the lookback period for overcharge charge claims that arose prior to the passage of the HSTPA. The court also finds respondent's argument unavailing as to the interpretation of Regina. As such, the timeframe for overcharge is March 21, 2019.

Conclusion

The court grants respondent's motion to reargue and renew for the reasons set forth above and adheres to its March 7, 2024 decision. This proceeding is adjourned to July 25, 2024 at 10:00am for in-person pre-trial conference and picking of a trial date on the issue of damages only. Should the parties agree to mark this proceeding off calendar pending the appeal of the March 7, 2024 decision, the parties should do so by stipulation and upload it to NYSCEF as well as notifying the court via email. This constitutes the Decision and Order of the Court.

Sergio Jimenez, J.