DIRENNA v. CHRISTENSEN (2008)

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 14, 2008, which, in an action alleging unlawful rent overcharges, denied defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the amended complaint, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendant dismissing the amended complaint.

 Plaintiff subtenant's action is time-barred since the first overcharge alleged by him occurred in April 2003 and this action was not commenced until September 2007 (see Mozes v. Shanaman, 21 A.D.3d 854, 804 N.Y.S.2d 3 [2005], lv. denied 6 N.Y.3d 715, 823 N.Y.S.2d 356, 856 N.E.2d 920 [2006];  CPLR 213-a).   Plaintiff may not avoid the applicable four-year statute of limitations by amending his complaint to withdraw his claim for earlier months of rent overcharge (see e.g. Reddington v. Staten Is. Univ. Hosp., 11 N.Y.3d 80, 87-88, 862 N.Y.S.2d 842, 893 N.E.2d 120 [2008];  Bones v. Prudential Fin., Inc., 54 A.D.3d 589, 863 N.Y.S.2d 368 [2008] ).