GREGORETTI v. 92 MORNINGSIDE AVENUE LLC (2018)

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered April 7, 2017, which granted defendants' motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff seeks to be restored, as a rent-stabilized tenant, to occupancy of apartment 71 in defendants' building, in which he had resided until a fire rendered the building uninhabitable in 2002.

The record demonstrates that the building was “effectively demolished” by a second massive fire in 2012 and that therefore there is no longer an apartment 71 to which to restore plaintiff (see Quiles v. Term Equities, 22 A.D.3d 417, 421, 802 N.Y.S.2d 679 [1st Dept. 2005];  Lepore v. 65 Whipple LLC, 61 Misc.3d 1202(A), 2018 N.Y. Slip Op. 51319[U], 2018 WL 4470862 [Civ. Ct., Kings County 2018] ).  Defendants established prima facie that, following the second fire, the building was essentially an empty shell.  They submitted evidence that the building had no windows and was completely boarded up, that its interior, including floor joists and the stairwell, had completely collapsed, that it was impossible to make one's way into the building beyond what had been the lobby, and that the building had no boiler, copper piping, or any other functioning systems.  Plaintiff submitted no evidence in opposition.

Plaintiff relies on a finding adverse to the building's prior owners that was made in an action brought following the first fire.  However, the factual findings of the court in the prior action were rendered irrelevant by the second fire.