THURMAN v. SULLIVAN PROPERTIES (2024)

Order, Supreme Court, New York County (Suzanne J. Adams, J), entered June 6, 2023, which denied defendants’ motion pursuant to CPLR 3211(a)(1) and (a)(5) to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff, a market-rent tenant, commenced this action against his landlord, asserting several claims, stemming from the allegations that the landlord illegally deregulated the apartment, after the rent-controlled tenant vacated the premises.

We find that, in support of their motion to dismiss based on a defense founded on documentary evidence, defendants properly submitted documents, namely leases and a so-ordered stipulation settling a housing court case, through the affidavit of an employee familiar with the files (see Basis Yield Alpha Fund [Master] v. Goldman Sachs Group, Inc., 115 A.D.3d 128, 134 n 4, 980 N.Y.S.2d 21 [1st Dept. 2014];  DeLeon v. Port Auth. of N.Y. & N.J., 306 A.D.2d 146, 146, 761 N.Y.S.2d 54 [1st Dept. 2003]).  The leases qualify as documentary evidence (see 150 Broadway N.Y. Assoc., L.P. v. Bodner, 14 A.D.3d 1, 5, 784 N.Y.S.2d 63 [1st Dept. 2004]).  The documentary evidence demonstrated that the last rent-controlled tenant vacated the apartment on or about June 30, 2005, and that defendants then entered into a lease with another tenant for a monthly rental in excess of $2000, the threshold for luxury decontrol (see former Rent Stabilization Code [RSC] [9 NYCRR] § 2520.11[r][4]).  Nevertheless, the documents themselves do not utterly refute plaintiff's allegations that the apartment was wrongly or fraudulently removed from rent regulation, and thus the motion to dismiss was properly denied (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002]).

Defendants correctly argue that, regardless of whether they provided RR–1 notices, pursuant to RSC 2522.3 under the pre-Housing Stability and Tenant Protection Act, a fair market rent appeal (FMRA) would need to be filed within four years of the last rent-controlled tenant's vacancy or by June 30, 2009 (see Matter of Park v. New York State Div. of Hous. and Community Renewal, 150 A.D.3d 105, 113–114, 50 N.Y.S.3d 377 [1st Dept. 2017], lv denied 30 N.Y.3d 961, 64 N.Y.S.3d 662, 86 N.E.3d 555 [2017]).  However, this action is not a fair market rent appeal and the apartment's rental history may be examined beyond four years to determine its rent-stabilization status (see Rosa v. Koscal 59, LLC, 162 A.D.3d 466, 74 N.Y.S.3d 746 [1st Dept. 2018];  Olsen v. Stellar W. 110, LLC, 96 A.D.3d 440, 441–442, 946 N.Y.S.2d 128 [1st Dept. 2012], lv dismissed 20 N.Y.3d 1000, 959 N.Y.S.2d 683, 983 N.E.2d 761 [2013]).  It is well settled that a tenant may challenge the ostensibly deregulated status of a dwelling at any time during their tenancy (see Gersten v. 56 7th Ave. LLC, 88 A.D.3d 189, 199–200, 928 N.Y.S.2d 515 [1st Dept. 2011];  East W. Renovating Co. v. New York State Div. of Hous. & Community Renewal, 16 A.D.3d 166, 167, 791 N.Y.S.2d 88 [1st Dept. 2005]).  To the extent that a different conclusion was reached in (3505 BWAY Owner LLC v. McNeely, 67 Misc.3d 583, 125 N.Y.S.3d 223 [Civ. Ct., N.Y. County 2020], aff d 72 Misc.3d 1, 148 N.Y.S.3d 601 [App. Term, 1st Dept. 2021]), that case is not controlling, and we decline to follow it.

We have considered defendants’ remaining arguments and find them unavailing.