800 LLC v. JOHN DOE JANE DOE (2026)

Recitation, as required by the CPLR 2219 (a), of the papers considered in the review of Petitioner's motion for summary judgment and to dismiss defenses and counterclaims, and Respondent's cross-motion for summary judgment to dismiss the petition or, in the alternative, for leave to conduct limited discovery.

PAPERS NYSCEF DOC.

Notice of Motion & Affidavits Annexed 8-43

Notice of Cross-Motion & Affidavits Annexed 44-53

Answering Affidavits to Cross-Motion 54-55

Answering Affidavits to Motion 56-58

Reply Affidavits on Motion 59-60

Reply Affidavits on Cross-Motion 61-62

Upon the foregoing cited papers, the decision and order of the motions is as follows:

Procedural History and Factual Background

Petitioner, 800 Fifth Avenue Property Owner LLC, brought this holdover proceeding against Respondent, Penny Trenk, tenant of the subject premises, and Respondents-Undertenants, "John Doe," and "Jane Doe," on the basis that Petitioner elected not to renew Respondent's allegedly unregulated tenancy, and that Respondent is not covered by the protections of the Good Cause Eviction Law ("GCE"), pursuant to RPL § 214 (15) (monthly rent greater than 245 percent of the fair market rent published by US HUD) (NYSCEF 1).

Respondent, through counsel, interposed a verified answer with counterclaims (NYSCEF 5), asserting various defenses, including that the unit is still subject to rent stabilization, giving rise to defenses related to the monthly rental amount charged, failure to plead the regulatory status, and failure to state a cause of action. Her counterclaims, including for rent overcharge, also stem from this status challenge.

Petitioner then filed this motion (Motion Seq. 1), seeking summary judgment in its favor, dismissal of the defenses and counterclaims, and a hearing for use and occupancy and attorney's fees. In support of summary judgment, Petitioner argues that the apartment was properly deregulated following the expiration of the benefits pursuant to Real Property Tax Law ("RPTL") § 421-a in 1989. Further, Petitioner argues that a prior corporate tenant, Joseph Trenk & Sons ("JTS"), had been the named tenant on every lease, from 1981 through 2008. Subsequently, in 2010, Respondent Penny Trenk signed her first lease for the subject premises. Petitioner argues that the first lease between the prior owner, as landlord, and Respondent, as tenant, constitutes a "vacancy" that results in the deregulation of the subject premises pursuant to Rent Stabilization Code (RSC) (9 NYCRR) § 2520.11 (p) (1). Petitioner asserts that with the regulatory status proven, its other documentary evidence provide the elements of its prima facie case, sufficient to support its entitlement to a judgment against Respondent, as a matter of law.

Simultaneously, Respondent filed this cross-motion (Motion Seq. 2), seeking summary judgment in her favor, and a hearing on her counterclaims, or, in the alternative, leave to conduct discovery. In support, Respondent argues that the New York State Homes and Community Renewal Division of Housing and Community Renewal ("DHCR") rent registration history for the subject premises shows a previously rent stabilized apartment suddenly registered as exempt. Respondent argues that the DHCR registration history does not support the registration of the subject premises, in 1987, as a permanently exempt condominium or cooperative unit, and that Petitioner simply disregarded the rent stabilization laws and regulations. Respondent argues that this registration is fraudulent.

Additionally, Respondent vigorously disputes that her tenancy began in 2010. Respondent states that she has lived in the apartment for over forty years and asserts that the first lease executed solely in her name was a result of the death of her husband, David Trenk, in February 2010, following more than 30 years of co-residence in the subject premises as a married couple. Further, because the apartment was subject to rent stabilization, via the RPTL 421-a benefits prior to July 3, 1984, only a vacancy could lead to deregulation (compare RSC § 2520.11 [p] [2]; pre- July 3, 1984 vs post- July 3, 1984 regulation). The crux of Respondent's argument then, is that no vacancy occurred, and that changing the name of the tenant of record does not constitute a vacancy. If Respondent's analysis is correct, and no vacancy occurred, then regardless of the expiration of the tax benefits, she would remain a rent stabilized tenant, not subject to a holdover proceeding on the basis asserted in the pleadings. Regarding the alleged corporate tenancy, Respondent argues that even temporary exemption, for the duration of exclusive non-residential use by the corporation, is unavailable if the premises is subject to rent stabilization solely as a result of the 421-a tax abatement benefits.

In opposition, Petitioner argues that since the corporate leases never identified Respondent Penny Trenk as an intended occupant of the subject premises, she does not have rent stabilized tenancy rights under those leases. Petitioner cites Fox v 12 E 88th LLC, 160 AD3d 401 (1st Dept 2018), in support of the notion that a physical vacancy is not required to be considered a vacancy under the RSC. Additionally, Petitioner argues that the cases cited by Respondent are distinguishable as they involve additions of parties to leases, rather than substitutions.

In turn, Respondent argues that whatever the terms of the purported agreement with the former corporate tenant, agreements to waive protections of the rent stabilization code are void. Further, Respondent repeats her allegation that there simply was no condominium or cooperative conversion in 1987, pointing out that by its own admission, Petitioner currently plans a condominium conversion. Respondent repeats that she executed a lease in her name only by necessity, following the passing of her husband. Indeed, Respondent alleges that her so-called application for a lease listed the subject premises as her primary residence for the preceding 32 years.

Respondent elaborates on her arguments regarding the meaning of a vacancy under the relevant statute, citing 132132 LLC v Strasser, 19 Misc 3d 658 (Civ Ct, New York County 2008), affd 24 Misc 3d 140(A), 2009 NY Slip Op 51694(U) (App Term, 1st Dept 2009) and 200 Haven Owner, LLC v Drachman, 73 Misc 3d 1207(A), 2021 NY Slip Op 50970(U) (Civ Ct, New York County 2021), affd 80 Misc 3d 16 (App Term, 1st Dept 2023), for the proposition that there must be an actual physical vacancy, or at least a hiatus in possession, to trigger deregulation. Since neither occurred, Respondent concludes that the subject premises remains subject to rent stabilization. Respondent further notes that any purported issue that the prior owner had with her husband David Trenk, about non-primary residence, was never determined by a court and cannot be the basis for exemption from rent stabilization. Citing Kuzmich v 50 Murray St Acquisition LLC, 34 NY3d 84 (2019) (a RPTL § 421-g case), Respondent argues, by analogy, that deregulation for units subject to rent stabilization because of 421-a benefits can only occur as provided by RPTL § 421-a (2) (f) and RSC § 2520.11 (p); other avenues to deregulation are prohibited.

In reply, Petitioner cites Matter of Gavrielov v Unger Consulting Group Ltd., 173 AD3d 443 (1st Dept 2019) to further substantiate its contention that the 'physical vacancy' or 'hiatus in possession' tests are inapplicable to wholesale substitution of parties on leases, creating vacancies under the RSC, and allowing for deregulation of the subject premises.

In her reply papers, Respondent argues that Petitioner has admitted, by not opposing her contentions, that she has continuously resided in the subject premises since 1978. Respondent also highlights the assignment of the security deposit, initially held under the corporate lease, to her, as evidence of her continuous residence in the subject premises, and the lack of a vacancy. Respondent attempts to distinguish Fox, 160 AD3d 401 (1st Dept 2018), as applicable only as to a transfer to a corporate entity after expiration of tax abatement benefits, not from a corporate entity. Respondent relies on Veltri v Joy, 55 AD2d 529 (1st Dept 1976), affd 43 NY2d 660 (1977) for the proposition that being named or listed on the prior lease is not dispositive of her claim that no vacancy occurred.

As a matter of policy, Respondent argues that it would create perverse incentives for landlords to be able to manufacture legal vacancies for the purposes of deregulation, at the expiration of tax benefits, by issuing new leases under new (personal not corporate) names to existing occupants regardless of continuous possession. Respondent reiterates her contention that Petitioner has failed to offer sufficient proof of deregulation in admissible form, irrespective of the validity of its theory of deregulation.

For the reasons stated below, both motions are denied in their entirety.

Discussion

Petitioner's Motion for Summary Judgment

CPLR 3212 provides that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." Summary judgment is a drastic remedy (Andre v Pomeroy, 35 NY2d 361, 364 [1974]), appropriate only when there is "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Deleon v New York City Sanitation Dept, 25 NY3d 1102, 1106 [2015]; Alvarez v Prospect Hosp, 68 NY2d 320, 324 [1986]). "On a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' " (Vega v Restani Constr Corp, 18 NY3d 499, 503 [2012], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). The function of summary judgment is issue finding, not issue determination (Sillman v Twentieth Century Fox Film Corp, 3 NY2d 395, 404 [1957]). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010], internal quotation marks and citation omitted).

Petitioner fails to prove all the elements of its prima facie case (RPAPL § 711 [1], 741; RSC § 2520.11 [p] [1]). First, the Conciliation and Appeals Board of the City of New York ("CAB") was the predecessor to DHCR (see Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]) and had the jurisdiction to adjudicate the prior landlord's application not to renew the rent stabilized lease based on non-primary residence. Petitioner's documents show that the prior owner filed such a complaint, in 1981, against Respondent's late husband, David Trenk (NYSCEF 17). Respondent's husband answered the complaint, in sum, denying the allegations set forth (NYSCEF 18). Petitioner then offers a letter purportedly sent by the prior owner's counsel, in November 1981, that itself references a letter sent to CAB withdrawing the non-primary residence complaint (NYSCEF 20). Setting aside issues of authentication, the text of the letter advises of the enclosure of a fully executed lease in the corporate entity's name (Joseph Trenk & Sons), notes the refund of the security deposit, and specifies the landlord's letter, sent to CAB, withdrawing its CAB proceeding. The letter does not purport to "settle," "resolve," or "determine" the issue of primary residence. While the exchange of a lease for withdrawal of the CAB complaint may be inferred, the letter offers no clue as to why such agreement was made. In other words, it does not contain any admission of wrongdoing on Respondent's husband's part. Therefore, this letter cannot satisfy the requirements for exemption based on, "housing accommodations which are not occupied by the tenant, not including subtenants or occupants, as his or her primary residence as determined by a court of competent jurisdiction" (RSC § 2520.11 [k] [emphasis added]). As such, this could not have been the legal basis for deregulation of the subject apartment.

Second, there are additional issues with the corporate leases and attendant agreements. The initial corporate lease (NYSCEF 19) purports to be for a three-year term, and contains a rider that references the RPTL, the Rent Stabilization Law (RSL) (Administrative Code of City of NY) § 26-504 et seq., and Rent Guidelines Board increases (id. at p. 8), appearing to be a rent-stabilized lease. Next comes the 1986 agreement offered by Petitioner as a stipulation of settlement (NYSCEF 22). This out-of-court agreement between the former owner and JTS purports to settle a "proceeding" and, inter alia, contains three paragraphs purporting to waive rent stabilization protections, including the right to renewal leases. Curiously, it contains a provision that, "(s)hould the tenant, in the future, change its position and maintain the captioned premises as its primary residence, it will not reinstate tenant's rights under Rent Stabilization" (id. at p. 3, ¶3). Such an agreement or stipulation would be deemed void (see RSC § 2520.13 ["An agreement by the tenant to waive the benefit of any provision of the RSL or this Code is void"]; Reichenbach v Jacin Invs Corp, 237 AD3d 446, 448 [1st Dept 2025]).¹ Later, in Thornton v Baron, the Court of Appeals held, "[a] lease provision purporting to exempt an apartment from rent regulation in exchange for an agreement not to use the apartment as a primary residence is against public policy and void" (5 NY3d 175, 179 [2005]). Therefore, it appears the subject premises would have remained rent stabilized subsequent to this purported agreement or stipulation (see Ruiz v Chwatt Assocs, 247 AD2d 308, 308 [1st Dept 1998] ["Rent stabilization coverage is a matter of statutory right and cannot be created by waiver or estoppel"]).

The Court also notes that Petitioner executed subsequent leases with JTS containing explicit but differing riders. The 1988 and 1990 leases state that the subject premises was decontrolled due to nonprimary residence (NYSCEF 24: 1988 lease; and NYSCEF 25: 1990 lease). These riders lead to the conclusion that the purpose of the "stipulation" was to agree to a deregulated rent and other lease terms. However, the proper resolution of disputes over nonprimary residence in a rent regulated apartment is either maintenance of the unit as a primary residence or return of possession to the landlord by surrender or judgment and eviction. The 1992 lease contains a rider that refers to the expiration of the 421-a benefits in 1989 (i.e., prior to the execution of the 1990 lease) as well as the prior "stipulation" between the parties (NYSCEF 26). The 1996 lease has annexed two separate riders: one claiming deregulation due to expiration of the tax abatement (NYSCEF27, p. 9), the second claiming deregulation due to nonprimary residence and the 1986 agreement (id. at p. 10). It is puzzling that Petitioner's predecessor in interest continued to assert that the apartment was deregulated, once in 1986 and again in 1989. The 1998 (NYSCEF 28) and 2000 (NYSCEF 29) renewal leases retain these separate, apparently contradictory, riders. The 2002 renewal lease drops the nonprimary residence rider (NYSCEF 30). Such omission continues in the 2004 (NYSCEF 31), 2006 (NYSCEF 33), and 2008 (NYSCEF 35) renewal leases. Therefore, the theory of deregulation, as per the leases, is neither clear nor proven.

Respondent Penny Trenk's 2010 lease contains a rider purporting to acknowledge exemption from rent stabilization solely due to the expiration of the 421-a benefits (NYSCEF 38, p. 12). The only cogent theory of deregulation, therefore, is by reason of vacancy under RSC § 2520.11 (p) (1). Petitioner's papers, however, do not address the effects of the potentially improper assertion of deregulation prior to the expiration of the 421-a benefits. Respondent's analogy to the holding in Kuzmich, 34 NY3d at 93, is apt, as that court held that the language of RPTL 421-g (6), which is almost identical to that of RPTL 421-a (2) (f), prohibits decontrol by any other method during the benefits period. RSC § 2520.11 (p) (1) provides for deregulation if the premises "w[as] subject to the RSL pursuant to section 421-a and became vacant subsequent to the end of the applicable restriction period." This raises the question of what happens if the premises was not subject to the RSL for the entire restriction period. As the Kuzmich Court observed, "[i]f defendants were correct that such units were already subject to decontrol under the RSL during the receipt of RPTL 421-g benefits, there would be no need to provide a mechanism to preserve the ability to implement decontrol after those benefits terminate" (34 NY3d at 93).

Even if Petitioner were correct in its interpretation of the holdings and the applicability of Fox, 160 AD3d 401, and Gavrielov, 173 AD3d 443, they would be inapposite to these facts, since the corporate, deregulated leases appear to have been void. "A void contract is no contract whatever. At no time and under no circumstances has it any effect" (In re Gilbert, 235 NY 390, 393 [1923]). The question becomes whether, after the death of David Trenk, Petitioner's offer of a deregulated vacancy lease to Respondent was proper. If the deregulation was improper, the remaining question would be one of succession rights, or occupancy from the inception. As discussed above, the issue of David Trenk's primary residence in the subject premises was not determined by CAB in 1981, and Petitioner offers no evidence that he surrendered possession.

On its motion for summary judgment, Petitioner asks this Court to infer surrender from the execution of the 1981 corporate lease and the 1986 preemptive "stipulation of settlement." Nowhere in these documents, or their attachments, is there a statement by Mr. Trenk surrendering his rights to possession. If, as she alleges, Respondent Penny Trenk entered into possession of a rent stabilized unit, while married to Mr. Trenk, "from the inception of the tenancy, [she would be] entitled to a renewal lease when the named tenant vacate[d] the premises" (Festa v Leshen, 145 AD2d 49, 51 [1st Dept 1989]; RSC § 2523.5 [b] [1]). Such a renewal lease is not a vacancy lease, for the purposes of deregulation of a pre-July 3, 1984 421-a unit (RSC § 2520.11 [p] [1]), even if Petitioner may have been entitled to a vacancy lease increase upon execution. With material issues of fact outstanding, Petitioner has failed to carry its burden, and summary judgment is, therefore, denied.

Petitioner's Motion to Dismiss Defenses

CPLR 3211(b) provides "A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." Answering parties are "entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed" (534 E 11th St Hous Dev Fund Corp v Hendrick, 90 AD3d 541, 542 [1st Dept 2011]). The movant "bears the heavy burden of showing that the defense is without merit as a matter of law" (Granite State Ins Co v Transatlantic Reins Co, 132 AD3d 479, 481 [1st Dept 2015]). "In addition, if there is any doubt as to the availability of a defense, it should not be dismissed" (Staropoli v Agrelopo, LLC, 136 AD3d 791, 792 [2d Dept 2016]).

The Court will address the defenses in the order pleaded:

First affirmative defense—rent stabilization—for the reasons discussed above, this defense is meritorious and stands.

Second affirmative defense—failure to plead regulatory defense—for the reasons discussed above, this defense is meritorious and stands.

Third affirmative defense—failure to state a cause of action—not subject to a motion to dismiss (Riland v Frederick S Todman & Co, 56 AD2d 350, 352-353 [1st Dept 1977]).

Fourth affirmative defense—essentially a combination and restatement of elements of the second and third defense, which stands.

Fifth affirmative defense—GCEL—stands as the regulatory status affects the legal rent and, therefore, the applicability of GCEL under the exemption claimed, and potentially inconsistent alternative pleadings are permissible (see Matter of Kern v Guller, 40 AD3d 1231, 1232 [3d Dept 2007]; Rockaway One Co v Califf, 194 Misc 2d 191 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2002]).

Sixth affirmative defense—retaliatory eviction—Respondent alleges sufficient facts to create a rebuttable presumption (RPL § 223-b [5]). Therefore, the defense stands as an available, potentially meritorious defense.

Seventh affirmative defense—rent overcharge—stands as meritorious given questions regarding the regulatory status and potential legal regulated rent.

First counterclaim—rent overcharge damages. Respondent raises substantial issues regarding the regulatory status and the rent registration history. The counterclaim, therefore, stands.

Second counterclaim—attorney's fees—potential reciprocal right to recovery (Solow Mgt Corp v Tanger, 19 AD3d 225, 226 [1st Dept 2005]; RPL § 234) with neither side having been adjudicated a prevailing party, and therefore stands.

Accordingly, that branch of Petitioner's motion seeking to dismiss defenses and counterclaims is denied.

Respondent's Cross-Motion for Summary Judgment

The same standard of review applies. As discussed above, the regulatory status of the subject premises is not solely determinative of Respondent's entitlement to judgment in her favor. Even in the event Petitioner is unable to prove the proper deregulation of the subject apartment in 1986/1987, Respondent still must establish a potential succession claim to David Trenk's tenancy, or occupancy from the inception, to avoid the vacancy requirement for deregulation per RSC § 2520.11 (p) (1). "To obtain summary judgment it is necessary that the movant establish h[er] cause of action or defense by tender of evidentiary proof in admissible form" (Zuckerman v New York, 49 NY2d 557, 562 [1980]). Respondent fails to tender a marriage certificate or any proof of residency in the subject premises other than her own testimony in her affirmation in support (NYSCEF 46). Whether Respondent seeks to demonstrate succession rights on the basis of one year of co-residency prior to Mr. Trenk's death in 2010 (as she appears to have been a senior citizen at that time), or as a spouse from the inception of the tenancy, she needs to produce more to obtain judgment in her favor. Accordingly, on this record and limited evidence presented, that branch of Respondent's motion seeking summary judgment is denied.

Respondent's Motion for Discovery

Discovery is permissible by leave of court in a summary proceeding (CPLR 408) to narrow the issues to be presented at trial. It requires the moving party to demonstrate ample need (Hughes v Lenox Hill Hospital, 226 AD2d 4 [1st Dept. 1996], lv denied 90 NY2d 829 [1997]; New York University v Farkas, 121 Misc 2d 643 [Civ Ct, NY County 1983]). In Farkas, the court outlined six factors to be considered in determining ample need for disclosure: (i) whether, in the first instance, the party seeking discovery has asserted facts to establish a cause of action; (ii) whether there is a need to determine information directly related to the cause of action; (iii) whether the requested for disclosure is carefully tailored and is likely to clarify the disputed facts; (vi) whether prejudice will result from the granting of an application of disclosure; (v)whether the prejudice can be diminished or alleviated by an order fashioned by the court for this purpose; and (vi) whether the court in its supervisory role can structure discovery so that pro-se tenants, in particular, will be protected and not adversely affected by a landlord's discovery requests (see Farkas supra; Georgetown Unsold Shares, LLC v Ledet, 130 AD3d [2d Dept 2015]). With regard to these factors, "not all [the factors] need to be present in every case" Mautner-Glick Corp v Higgins (64 Misc 3d 16, 18 [App Term, 1st Dept 2019]).

Respondent seeks leave to conduct discovery, in the form of a demand for document production and depositions, regarding documentation related to the 421-a benefits and leases for the subject premises, from January 1, 1978 to present (NYSCEF 52 & 53). However, Respondent fails to demonstrate ample need for the proposed discovery. The parties agree that the subject premises was subject to rent stabilization, pursuant to receipt of RPTL 421-a tax abatement benefits that expired in 1989. Respondent correctly presumes that "421-a paperwork would presumably consist of New York City Department of Finance (DOF) and/or Department of Housing Preservation and Development (HPD) records" (NYSCEF 45, ¶48). The Court agrees that these would be the salient records. However, these records can be subpoenaed from the respective city agencies with relative ease. As for the leases, Petitioner has exhibited every lease from 1981 through 2025. Petitioner does not dispute that David Trenk entered into a rent stabilized lease in 1978, as further evidenced by the exhibited CAB complaint which attests to the monthly rental amount. Examination of rent registration history cannot go back prior to its creation in 1984. The Court is at a loss as to what more information Respondent could gain from Petitioner, especially given her ability to obtain records via subpoena.

Accordingly, that branch of Respondent's motion seeking discovery is denied.

Conclusion

Accordingly, it is ORDERED that Petitioner's motion (Motion Seq. 1) is DENIED in its entirety; and it is

ORDERED that Respondent's motion (Motion Seq. 2) is DENIED in its entirety; and it is

ORDERED that the proceeding is ADJOURNED for all parties to appear on September 24, 2026, at 9:30AM, in Part A, Room 526, for settlement or transfer to Part X for trial assignment.

This constitutes the decision and order of the Court,

Date: September 1, 2026

Hon. Eleanora Ofshtein

Housing Court Judge

ENTERED

September 1, 2026

Civil Court of the City of New York

FOOTNOTES

1.   Although 9 NYCRR § 2520.13 (Waiver of Benefit Void), which states that "[a]n agreement by the tenant to waive the benefit of any provision of the RSL or this Code is void ", was added in May 1987, a pre-1987 case, Lee v Christie, analyzed a 1983 amendment to the RSL which specified that ""no action or proceeding based on non-primary residence of a tenant may be commenced prior to the expiration date of his lease" (RSL § YY51-6.0, subd c, par [14], cl [c])" (123 Misc 2d 244, 245 [Civ Ct, New York County 1983]). Additionally, the Court in Christie noted that "(a)s stated in Baumrind v Majid (NYLJ, March 17, 1981, p 7, col 2, Price, J.), '[a]n allegation that a dwelling is not a tenant's primary residence only goes to the issue of whether a landlord is required to offer a renewal lease'. It is not grounds for eviction" (123 Misc 2d at 246, citing 815 Park Owners, Inc. v W. LB Admin., Inc., 119 Misc 2d 671 [Civ Ct, New York County 1983]). Christie went on to state that the landlord had other remedies, including to refuse to renew the lease when it expired (id.).

Eleanora Ofshtein, J.