101 08 LLC v. RODRIGUEZ (2021)

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's motion to restore and for a default judgment, warrant, and related relief:

Papers Numbered

Notice of Motion & Affirmation/Affidavit/Exhibits Annexed 1 (NYSCEF No.4-8)

Notice of Hearing with Proof of Service 2 (NYSCEF #13)

Hearing Exhibits (A-C) 3 (NYSCEF #10-12)

Upon the foregoing cited papers and the hearing taken (via Teams) on November 24, 2021, the decision and order on petitioner's motion is as follows.

PROCEDURAL HISTORY

This nonpayment proceeding was commenced in February 2020. Petitioner made the instant motion to restore and for a default judgment and related relief in June 2021. The motion appeared on the HMP calendar on July 29, 2021 and September 1, 2021. Respondents failed to appear on those dates and the motion was adjourned to October 1, 2021 in Part E. After respondents failed to appear on October 1, 2021, the court reserved decision on petitioner's motion. On October 4, 2021, the court, by Decision/Order, granted the motion the extent of setting it down for a hearing as required by L 2021, ch 417, Part C, Subpart A, Sec. 5. The hearing was scheduled for November 3, 2021. On November 3, 2021, the petitioner's attorney requested an adjournment of the hearing. As respondents failed to appear, the application to adjourn was granted and the hearing was rescheduled for November 24, 2021.

On November 24, 2021, upon respondents’ failure to appear, the court conducted a hearing with petitioner's attorney and petitioner's witness, Joseph Yahudaii. After the hearing that day, the court reserved decision on the ultimate relief sought in petitioner's motion.

HEARING

Petitioner's attorney called Mr. Yahudaii as petitioner's sole witness. Mr. Yahudaii testified that he is the owner of the corporate petitioner. He stated that he is familiar with respondents and the subject premises. In response to the court's initial questions, Mr. Yahudaii stated that he had not received a COVID-19 hardship declaration from any respondent, nor had he received any ERAP application from any respondent. He also stated that no respondent was elderly, disabled, or infirm.

Mr. Yahudaii then testified that the subject premises is registered as a multiple dwelling. The court took judicial notice of a current multiple dwelling registration pursuant to Multiple Dwelling Law (MDL) § 328(3) after confirming the information on the Department of Housing Preservation and Development (HPD) website. Thereafter, Mr. Yahudaii authenticated the lease between the parties, which was admitted as petitioner's Exhibit A, as well as the rent breakdown, which was admitted as petitioner's Exhibit B.

Petitioner's attorney next requested that the court admit the attorney-certified deed for the subject building. The court did so after comparing it with the same document found on the ACRIS (Automated City Register Information System) website. Mr. Yahudaii then testified that respondents are still in possession and stated that he did not believe that respondents were in the military.

Finally, after questioning from the court, Mr. Yahudaii stated that the subject building has four (4) units and is rent stabilized via the 421-a tax abatement program. Thereafter, petitioner's attorney rested.

DISCUSSION & CONCLUSION

Upon due consideration of petitioner's motion and the hearing testimony and evidence, the motion must be denied without prejudice. Mr. Yahudaii's testimony at the hearing was that the subject premises are rent-stabilized through the 421-a program. Apartments in buildings where a 421-a tax abatement exists are subject to rent stabilization. See e.g. River Tower Owner, LLC v. 140 W. 57th St. Corp., 172 AD3d 537 [1st Dept 2019]. Since the petition alleges that the premises are not subject to rent stabilization and no allegation is made that the legal regulated rent is registered with the Division of Housing and Community Renewal (DHCR), the petition is defective as pled. See Cintron v. Pandis, 34 Misc 3d 152[A], 2012 NY Slip Op 50309[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012] [“Where a tenancy is subject to a specific form of regulation, the petition must set forth the tenant's regulatory status, because this status may determine the scope of the tenant's rights.”]; see also Henry v. Kingsberry, 66 Misc 3d 143[A], 2020 NY Slip Op 50175[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Migliaccio v. Childs, 65 Misc 3d 131[A], 2019 NY Slip Op 51575[U] [App. Term 2d Dept, 2d, 11th & 13th Jud Dists 2019]. A default judgment cannot be granted upon patently defective pleadings. See Gristmill Realty, LLC v. Roa, 2020 NY Slip Op 51358[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Lakeview Affordable Hous., LLC v. Turner, 66 Misc 3d 142[A], 2020 NY Slip Op 50163[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Kentpark Realty Corp. v. Lasertone Corp., 3 Misc 3d 28, 31 [App Term, 2d Dept, 2d & 11th Jud Dists 2004].

Should any future motion be made in this proceeding, it may be made returnable in Part E; provided, however, that petitioner's attorney must notify the court by email if another motion is filed. This Decision/Order will be filed to NYSCEF. Petitioner's attorneys shall serve a copy of this Decision/Order upon each respondent by first class mail no later than December 2, 2021.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Clinton J. Guthrie, J.