CAIN v. 42 WEST 65TH LLC (2024)

Order, Supreme Court, New York County (Suzanne Adams, J.), entered May 30, 2023, which denied defendant landlord's motion for summary judgment dismissing plaintiff tenant's complaint and for summary judgment on its counterclaims, unanimously reversed, on the law, without costs, the motion granted, and the matter remanded for further proceedings consistent with this decision.  The Clerk is directed to enter judgment accordingly.

Plaintiff alleges a fraudulent removal of the subject unit from rent regulation in 2009, and a related rent overcharge in his lease covering 2021–2022.  In support of its motion for summary judgment dismissing plaintiff's complaint, defendant submitted documentary evidence (work invoices and checks) of individual apartment improvements (IAIs) made to the unit in 2007–2008.

In opposition, plaintiff argued that an issue of fact requiring discovery exists concerning whether the deregulation was fraudulent because it was based on false claims and false evidence of IAIs. Plaintiff cited his affidavit that “[he] did not believe that defendant performed sufficient renovations to have deregulated the subject unit,” and “that the subject unit does not give the appearance of having been renovated to such a degree that the subject unit could have been deregulated.”  He further argued that the invoices and checks are facially inadequate to resolve all factual issues concerning the amount spent on the renovation.  In that regard, he argues that the invoices contain hand-written notes as to the work that was designated for the unit and the evidence does not otherwise prove that the payments were for renovation work on the unit.

Defendant made a prima facie showing of a nonfraudulent and valid deregulation of the subject unit.  Plaintiff fails to raise any factual issues as to the IAI evidence that would warrant discovery into whether the IAIs were legitimate proof of a valid deregulation.  Rather, the record here entitles defendant to summary judgment dismissing the complaint (see Gourin v. 72A Realty Assoc., L.P., 226 A.D.3d 475, 476, 209 N.Y.S.3d 21 [1st Dept. 2024]).  The mere possibility that discovery might result in evidence that undermines the documentary evidence here showing a valid deregulation is not sufficient to warrant denial of defendant's motion (see RSR Corp. v. Leg Q LLC, 214 A.D.3d 463, 465, 186 N.Y.S.3d 126 [1st Dept. 2023], lv denied 40 N.Y.3d 902, 2023 WL 6066633 [2023];  Breen v. 330 E. 50th Partners, L.P., 154 A.D.3d 583, 584, 61 N.Y.S.3d 902 [1st Dept. 2017]).

Because the record establishes that the deregulation of the unit was not fraudulent or improper, defendant is entitled to summary judgment on the counterclaims for a judgment of possession, a writ of assistance, and a hearing on arrears and related legal fees.