PINEWOOD APARTMENT ASSOCIATES v. WILCOX (2008)

In an action, inter alia, for a judgment declaring that the plaintiff is entitled to charge the defendant a vacancy allowance increase pursuant to the Emergency Tenant Protection Act of 1974 (McKinney's Uncons. Laws of N.Y. § 8626 [g] ), the plaintiff appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered March 2, 2007, as denied that branch of its motion which was for leave to renew its motion for summary judgment on the first cause of action, and the defendant cross-appeals, as limited by her notice of appeal and brief, from so much of the same order as denied her cross motion for an award of an attorney's fee and the imposition of sanctions.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

On a prior appeal in this matter, we held that the plaintiff was not entitled to charge the defendant a vacancy allowance increase pursuant to the Emergency Tenant Protection Act of 1974 and attendant regulations (see McKinney's Uncons. Laws of N.Y. § 8621, et seq;  9 NYCRR 2500.1, 2500.13;  Pinewood Assoc., Inc. v. Wilcox, 29 A.D.3d 881, 815 N.Y.S.2d 706).   We observed that, “[u]nder the plain meaning of the statute, such [vacancy allowance increase] is payable only by each second succeeding tenant” and that, because “the defendant is only the first succeeding tenant ․ no vacancy allowance increase is owed” (id. at 882, 815 N.Y.S.2d 706).

Subsequent to our decision on the prior appeal, the plaintiff moved in the Supreme Court for leave to renew that branch of its motion which sought a declaration that it was entitled to a vacancy allowance increase.   The motion was based on a footnote appearing in an unrelated determination by the Deputy Commissioner of the Division of Housing and Community Renewal (hereinafter the DHCR).  The Supreme Court properly denied the plaintiff's motion for leave to renew.   Although our determination was consistent with Rent Administration Fact Sheet # 30 issued by the DHCR, it was based upon our own reading of the statute, and we did not defer to any interpretation by the DHCR. Thus, any alleged change in the DHCR's interpretation of the relevant statutory and regulatory provisions reflected in the footnote would not change the prior determination (see CPLR 2221[e][2] ).

The parties' remaining contentions are without merit.