MYERS v. FRANKEL

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Supreme Court, Appellate Division, Second Department, New York.

Shirley MYERS, et al., Appellants, v. Christian A. FRANKEL, et al., Respondents.

Decided: March 25, 2002

A. GAIL PRUDENTI, P.J., FRED T. SANTUCCI, SONDRA MILLER, and WILLIAM D. FRIEDMANN, JJ. Timothy O'Donnell, New York, N.Y., for appellants. Sperber Denenberg & Kahan, P.C., New York, N.Y. (Jacqueline Handel-Harbour and Steven B. Sperber of counsel), for respondents. Rosenberg & Estis, P.C., New York, N.Y. (Jeffrey Turkel and Bari A. Steinholz of counsel), for Rent Stabilization Association of New York, Inc., amicus curiae. John C. Gray, Brooklyn, N.Y. (Edward Josephson, Jennifer Lee, Elisabeth Fiekowsky, and Ragini Shah of counsel), for Metropolitan Council on Housing and N.Y. Tenants and Neighbors Coalition, amici curiae. Marcia P. Hirsch, New York, N.Y. (Martin B. Schneider of counsel), for New York State Division of Housing and Community Renewal, amicus curiae.

In a summary proceeding to recover possession of real property, the plaintiffs appeal, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated April 7, 2000, which, inter alia, affirmed so much of an order of the Civil Court of the City of New York, Kings County (Reichbach, J.), dated September 25, 1998, as denied their motion for summary judgment dismissing the defendants' counterclaim for rent overcharges and modified the order by granting the defendants' cross motion for summary judgment on their counterclaim for rent overcharges in the sum of $139,220.

ORDERED that the order of the Appellate Term is modified, on the law, by (1) deleting the provision thereof affirming the denial of the plaintiffs' motion for summary judgment dismissing the defendants' counterclaim for rent overcharges and substituting therefor a provision granting the motion, and (2) deleting the provision thereof granting the defendants' cross motion for summary judgment on their counterclaim for rent overcharges and substituting therefor a provision denying that cross motion;  as so modified, the order is affirmed, with costs to the plaintiffs.

 We agree with the plaintiffs' contention that the defendants' counterclaim to recover damages for a rent overcharge, which accrued in April 1990, when the defendants first entered into possession of the rent-stabilized apartment at issue and paid an allegedly excessive rent, was time-barred as it was not filed until April 1995. The four-year Statute of Limitations applicable to rent overcharge claims commenced running with the first overcharge alleged, and Rent Stabilization Law § 26-516 (Administrative Code of City of N.Y. § 26-516), as amended by the New York Rent Regulation Reform Act of 1997 (L. 1997, ch. 116, § 33) precludes examination of the rent history of the apartment prior to the four-year period preceding the filing of the rent overcharge claim (see Payne v. New York State Div. of Hous. & Community Renewal, 287 A.D.2d 415, 731 N.Y.S.2d 729;  Silver v. Lynch, 283 A.D.2d 213, 724 N.Y.S.2d 734;  Matter of Sessler v. New York State Div. of Hous. & Community Renewal, 282 A.D.2d 262, 722 N.Y.S.2d 864;  Matter of Brinckerhoff v. New York State Div. of Hous. & Community Renewal, 275 A.D.2d 622, 713 N.Y.S.2d 56).

In light of our determination, we do not reach the plaintiffs' remaining contentions.

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