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FRIED v. Carmen Galindo, Respondent-Tenant, John Doe and Jane Doe Respondents-Undertenants. (2020)

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Civil Court, City of New York.

Joel FRIED, Petitioner, v. Isabel LOPEZ and Raul Lopez, Respondent-Tenant, John Doe and Jane Doe, Respondents-Undertenants. Joel Fried, Petitioner, Carmen Galindo, Respondent-Tenant, John Doe and Jane Doe Respondents-Undertenants.


Decided: January 13, 2020

Petitioner's attorneys: Wenig Saltiel LLP, 26 Court Street, Suite 1200, Brooklyn, New York 11242, (718) 797-5700 Respondent's attorneys: Communities Resist, Inc., 109 South Fifth Street, Brooklyn, New York 11249, (347) 770-5144

Recitation, as required by CPLR 2219(a), of the papers considered in the review of petitioner's motion for reargument

Papers Numbered

Notice of motion & Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed

Answering Affidavits 2

Replying Affidavits 3


Memorandum in opposition 4

Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:

This court, in each of the above entitled matters, issued a decision and order on July 31, 2019, granting respondents' motions and dismissing the proceedings (Fried v. Lopez, 64 Misc 3d 1025 [Civ Court Kings County 2019]; Fried v. Galindo, NYLJ 7/31/19). Petitioner now moves for reargument of those decisions. As the orders in both proceedings were identical in substance and the instant motions are identical in content, the court on its own motion, consolidates the motions for purposes of disposition.

The proceedings were brought to recover possession for the owner's use of more than one apartment at 325 Wallabout Street, in Brooklyn (Building). The court dismissed the proceedings in light of the passage of the Housing Stability and Tenant Protection Act of 2019 (HSTPA), and in particular, its provisions modifying the Rent Stabilization Law to permit the recovery of only one apartment by an owner who demonstrated immediate and compelling necessity for its recovery for use as the primary residence of the owner or a member of his or her immediate family (Administrative Code of the City of New York § 26-511[c][9][b] as amended by HSTPA Sess. Law News of N.Y Ch. 36, pt. I, § 2 [S. 6458] [McKinney's] ).

The gravamen of petitioner's motions is that the court “failed to address the due process deficiencies of the HSTPA raised in petitioner's opposition papers. It would appear that the court misapprehended the facially apparent unconstitutionality of this new and untested statute and reargument is appropriate herein.” The motions were initially returnable on September 24, 2019 and adjourned to October 24, 2019. On that day, petitioner confirmed that it had not complied with CPLR 1012[b][1] by notifying the Attorney General of the State of New York of the challenge to the constitutionality of the HSTPA. On October 24, 2019, this court accordingly issued an order pursuant to Executive Law § 71[1] directing that such notification be made. By letter dated December 17, 2019, the Office of the Attorney General issued a letter indicating its determination not to intervene in the proceeding.

It has been held that “[a] motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law.” (Foley v. Roche, 68 AD2d 558, 567 [1st Dept 1979]). It has been held that “a motion to reargue “is not an appropriate vehicle for raising new questions ․ which were not previously advanced” (People v. Bachert, 69 NY2d 593, 597 [1987] [internal quotation marks and citation omitted] ).

While petitioner fails to annex to the instant motion the affirmation submitted in opposition to respondents' motions to dismiss, respondents have annexed that affirmation. To the extent that petitioner's opposition to the motion to dismiss can be construed as having raised constitutional arguments, it did so in the course of four paragraphs, after first quoting in full Section 29 of the Statewide Housing Security and Tenant Protection Act of 2019, set forth as Part M of the HSTPA.

Petitioner asserted as follows:

“19. Thus to hold this commenced action accountable to the statutes effectuated via the act, which was passed well after this case commenced, rather than the prior law, would not only ignore the plain language of the statute, but would also violate petitioner's due process rights.

20. Due process includes the fundamental right to be heard by a court of law, a right which Respondent would like not to extend to Petitioner, because Respondent does not want the court to hear what he has to say. Respondent does not want the court to hear the truth: that at its core, the relief sought is not only one upon which relief can be granted [sic], but the relief sought is the right of one person to build a home for his family, on his own property.

21. Without regard for the explicit language of the statute to the contrary, Respondent essentially asks this court to diminish the rights of Petitioner, upset centuries of American legal practice, and flatly misconstrue the intent and scope of the Housing Stability and Tenant Protection Act of 2019 for its own gain, no, as Respondent would have this court believe, strict adherence to the laws passed by the State legislature.

22. Essentially, this court is asked to ignore the plain language of the statute, violate due process rights, and Ex Post Facto, cornerstone foundations upon which our jurisprudence is built."

The court's decisions of July 31, 2019 explicitly addressed petitioner's errant reliance on Section 29 of the Statewide Housing Security and Tenant Protection Act of 2019. That reliance was the basis of all of petitioner's constitutional arguments.

In contrast, petitioner's arguments in the instant motion make no mention of that statutory section. In contrast, petitioner quotes section 5 of Part I, of the HSTPA, which provides that “[t]his act shall take effect immediately and shall apply to any tenant in possession at or after the time it takes effect, regardless of whether the landlord's application for an order, refusal to renew a lease or refusal to extend or renew a tenancy took place before this act shall have taken effect,” (HSTPA, 2019 Sess. Law News of NY Ch. 36, pt. I § 5 [McKinney's] ), and urges that “[i]t would appear that this court misapprehended the facially apparent unconstitutionality of this new and untested statute and reargument is appropriate herein.” (Affirmation in support at pgh. 20). Petitioner then asserts, at length, arguments that the statute violates petitioner's substantive and procedural due process rights, that even if the statute is facially constitutional, its application in this case effects a violation of petitioner's due process rights, that the HSTPA effects a regulatory taking, and that enactment of the HSTPA unconstitutionally impairs the contractual relationship between petitioner and respondents.

Respondents, in opposition, assert that the scope of a court's review on reargument is limited to “matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion” (CPLR 2221). The constitutional arguments that petitioner sets forth at length and now asks this court to consider were nowhere set forth in opposition to respondents' motions to dismiss. Necessarily, where a new argument is presented on the motion, that argument could not have been “overlooked or misapprehended.” (People v. D'Alessandro, 13 NY3d 216, 219 [2009]). While it has been held that it was not an abuse of discretion for a court to consider arguments raised for the first time in reargument to address “questions of law raised for the first time by the court's initial decision and unforeseen by the parties at the time of submission of their initial papers” (Manocherian v. Lenox Hill Hosp., 229 AD2d 197, 202 [1st Dept 1997]), such circumstances do not exist here. Petitioner had the opportunity to set forth any or all of the arguments now being advanced and did not do so. It has been held that “[a] motion for reargument is not an appropriate vehicle for raising new questions, such as those now urged upon us, which were not previously advanced either in this court or in the courts below” (Simpson v. Loehmann, 21 NY2d 990 [1968]). Those circumstances do not exist here.

Even if the arguments advanced by petitioner were properly before this court, petitioner could not meet the requisite burden. It has been held that “legislative enactments enjoy a presumption of constitutionality” (Brady v. State, 80 NY2d 596, 602 [1992]). Petitioner “bear[s] the ultimate burden of overcoming the presumption [of constitutionality] by demonstrating the amendment's constitutional invalidity beyond a reasonable doubt” (Am. Economy Ins. Co. v. State, 30 NY3d 136, 149 [2017]). No opinion of the Court of Appeals has addressed the constitutionality of the HSTPA, nor has the Appellate Division, Second Department. The Appellate Term, Second Department, has addressed the matter only tangentially. In an opinion issued on December 29, 2019, after the submission of the instant motion, the court, after permitting supplemental briefs to address the impact of the HSTPA, held that “[b]ecause landlord failed to serve the New York State Attorney General with its supplemental brief, landlord's constitutional challenge to the HSTPA is not properly before this court” (97-101 Realty, LLC v. Sanchez, 2018-114 K C, 2019 WL 6765853, at *2 [App Term Nov. 29, 2019]). In a footnote, the court added that “in any event, the Appellate Division, First Department, has recently rejected a due process challenge to the relevant provisions of the HSTPA (see Dugan v. London Terrace Gardens, L.P., 177 AD3d 1, 110 N.Y.S.3d 3 [2019]).”Id. at *2 [fn1] ). In Dugan, the court held, in the context of a rent overcharge claim, found:

“no merit to defendant's claim that applying the amendments to RSL § 26—516 and CPLR 213—a to this pending litigation violates due process. To begin, the legislature expressly made the amendments applicable to pending claims, and legislative enactments carry “an exceedingly strong presumption of constitutionality” (Barklee Realty Co. v. Pataki, 309 AD2d 310, 311, 765 N.Y.S.2d 599 [1st Dept. 2003] [internal quotation marks omitted], appeal dismissed 1 NY3d 622, 777 N.Y.S.2d 20, 808 N.E.2d 1279 [2004], lv denied 2 NY3d 707, 781 N.Y.S.2d 288, 814 N.E.2d 460 [2004]). Further, it is well settled that absent deliberate or negligent delay, “[w]here a statute has been amended during the pendency of a proceeding, the application of that amended statute to the pending proceeding is appropriate and poses no constitutional problem” ( *11 Matter of St. Vincent's Hosp. & Med. Ctr. Of NY v. New York State Div. of Hous. & Community Renewal, 109 AD2d 711, 712, 487 N.Y.S.2d 36 [1st Dept. 1985], affd 66 NY2d 959, 498 N.Y.S.2d 799, 489 N.E.2d 768 [1985]; accord Matter of Kass v. Club Mart of Am., 160 AD2d 1148, 554 N.Y.S.2d 357 [3d Dept. 1990]; Jonathan Woodner Co. v. Eimicke, 160 AD2d 907, 554 N.Y.S.2d 630 [2d Dept. 1990]).”

(Dugan v London Terrace Gardens, L.P., 177 AD3d 1, 10-11 [1st Dept 2019]).

The holding of Dugan is equally applicable in the context of an owner's use holdover. It has been held that:

“[t]he HSTPA provides that these particular amendments were to “take effect immediately” and were expressly made applicable to “any tenant in possession at or after the time it takes effect” (HSTPA Part I § 5). “The inference to be drawn [from this language] is that if at any stage of the appeal process a tenant is lawfully in possession, he is entitled to the beneficial aspects of the statute” (Matter of McMurray v. New York State Div. of Hous. & Community Renewal, 135 AD2d 235, 239 [1988], affd 72 NY2d 1022 [1988]). “[B]ecause the legislature has made changes to the law that directly impact this case, and has made those changes applicable to this pending litigation, a remand is appropriate” (Dugan v. London Terrace Gardens, L.P., 177 AD3d 1, 10 [2019]).”

(Harris v. Israel, 65 Misc 3d 155(A) [App Term 1st Dept 2019]). While these opinions have all been rendered by courts in the First Department, they are binding on this court, in the absence of any precedent in the Second Department. It has been held that:

“[t]he Appellate Division is a single statewide court divided into departments for administrative convenience (see Waldo v. Schmidt, 200 NY 199, 202, 93 N.E. 477; Project, The Appellate Division of the Supreme Court of New York: An Empirical Study of Its Powers and Functions as an Intermediate State Court, 47 Ford L Rev 929, 941) and, therefore, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule (see, e.g., Kirby v. Rouselle Corp., 108 Misc 2d 291, 296, 437 N.Y.S.2d 512; Matter of Bonesteel, 38 Misc 2d 219, 222, 238 N.Y.S.2d 164, affd. 16 AD2d 324, 228 N.Y.S.2d 301; 1 Carmody-Wait 2d, N.Y.Prac., § 2:63, p. 75).”

(Mtn. View Coach Lines, Inc. v. Storms, 102 AD2d 663, 664 [2d Dept 1984]).

Precedent firmly establishes that there is no due process issue that arises from the application of the HSTPA to this proceeding nor from the language of the statute itself.

Petitioner has not demonstrated that there are “matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion” (CPLR 2221). There is no basis for reargument, and petitioner's motion is in all respects denied.

Pursuant to paragraph 14 of the Order and Judgment of the Hon. Remy Smith issued under index number HP 563/2019, appointing for the Building an administrator pursuant to Article 7A of the Real Property Actions and Proceedings Law, this proceeding is respectfully referred to the Hon. Remy Smith, to the extent there may be any further proceedings in this matter which now stands dismissed.

This is the decision and order of the court.

David A. Harris, J.

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