Ruth Walton, Intervenor Plaintiff–Respondent, v. BP11 3915 LLC (2019)

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered July 19, 2017, which granted defendants GVS Properties II, LLC and Alma Realty Corp.'s motion for summary judgment to the extent of dismissing the third cause of action as against them, and denied the motion as to the remaining causes of action, unanimously modified, on the law, to grant the motion as to the remaining causes of action, and otherwise affirmed, without costs.  The Clerk is directed to enter judgment accordingly.

Defendants landlords demonstrated that the apartment leased by plaintiff Ecumenical Community Development Organization (ECDO) and occupied by intervenor plaintiff was not subject to rent regulation because the lawful monthly rent had increased to more than $2,000 (see Administrative Code of City of N.Y. § 26–504.2).  They established the base rent through the Division of Housing and Community Renewal's summary of the registered rents (see Bradbury v. 342 W. 30th St. Corp., 84 A.D.3d 681, 684, 924 N.Y.S.2d 349 [1st Dept. 2011] ), and made a prima facie showing of the claimed improvements by submitting a detailed invoice from the contractor identifying the apartment and itemizing all work done (see Lirakis v. 180 Seventh Ave. Assoc., LLC, 12 Misc.3d 1173(A), 2006 N.Y. Slip Op. 51211(U), *4–5, 2006 WL 1789049 [Civ. Ct., N.Y. County 2006], affd 15 Misc.3d 128(A), 2007 WL 852524 [App. Term, 1st Dept. 2007] ).  Intervenor plaintiff's conclusory claim that the renovations were not made failed to raise an issue of fact (see Taylor v. 72A Realty Assoc., L.P., 151 A.D.3d 95, 103–104, 53 N.Y.S.3d 309 [1st Dept. 2017] ).  The fact that the invoice from the contractor and the check paid to it were business records of defendants' predecessor is no bar to the documents' admissibility (see Bank of Am., N.A. v. Brannon, 156 A.D.3d 1, 8, 63 N.Y.S.3d 352 [1st Dept. 2017] ).

While defendants knew of intervenor's occupancy, they never affirmatively recognized her as a tenant (see Johny v. Tolbert, 8 Misc.3d 130(A), 2005 N.Y. Slip Op. 51043(U), 2005 WL 1592939 [App. Term, 2d Dept. 2005];  see also Matter of Jo–Fra Props., Inc., 27 A.D.3d 298, 299, 813 N.Y.S.2d 63 [1st Dept. 2006] [“coverage under a rent regulatory scheme is governed by statute and may not be created or destroyed by laches, waiver and estoppel”], lv denied 8 N.Y.3d 801, 830 N.Y.S.2d 9, 862 N.E.2d 88 [2007] ).

It is undisputed that ECDO, a nonprofit organization, leased the apartment from defendants' predecessor so that it could temporarily relocate intervenor plaintiff while it was renovating a separate residence for her.  Intervenor plaintiff never paid rent directly to defendants or their predecessors and her occupancy was solely pursuant to a written temporary relocation agreement.  Nor was this an illusory tenancy, because the prime tenant was not profiting from it, and there was no violation of the rent laws (see Primrose Mgt. Co. v. Donahoe, 253 A.D.2d 404, 676 N.Y.S.2d 585 [1st Dept. 1998] ).

Regardless of whether ECDO made a proper request for assignment of its one year temporary lease to the intervenor plaintiff, it was not unreasonable for defendants to withhold their consent in light of intervenor-plaintiff's inability to pay the rent.

In light of the foregoing, we need not reach plaintiff's remaining arguments.