Tenant Rights Overcharge Claims

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of my case was dismissed with this order— PROCEDURAL IIISTORY AND I}ACK(;IIOUND This is a summary holdover proceeding commenced by petitioner against ****arcelo Romano ("respondent") based upon respondent's breach of a substantial obligation ofhis tenancy, and upon respondent's illegal use his apartment on the first floor of the building. The first floor of the premises is not zoned for residential use. Petitioner, the owner ofthe building since *, claims that "[i]t has recently come to the Landlord's attention that you are wrongfully using and occupying the subject premises for residential purposes in violation of the [c]ertification of fo]ccupancy for the subject building." Q'JYSCEF Doc No. *, respondent's exhibit A, notice to cure at *-*.) Petitioner claims that respondent's use of his apartment tbr residential purposes violates a substantial obligation of his tenancy, and further violates the certificate ofoccupancy which allows only for commercial, nonresidential use ofthe first floor. Both parties previously moved prior to completion of discovery for summary judgment. Petitioner's prior motion was denied. (NYSCEF Doc No. * at *, decision and order dated January *, *, motion [sequence *] ["petitioner has failed to show in its motion papers and t This amended decision and order is issued to correct non-substantive Brammatical and citation style errors * of * INDEX NO. LT-*-*/NY [HO] FILED: NEW YORK CIVIL COURT - L&T */*/* *:* A**** NYSCEF DOC. NO. * RECEIVED NYSCEF: */*/* exhibits fbr summary judgment that as a matter of law summary judgment is warranted in its l'avor, nor has it shown that it truly exhausted its remedies to have the building's certificate of occupancy amended or that it would be unduly burdensome to do so"].)* Likewise, respondent's original motion for summary judgment was denied on the basis that there were issues of fact regarding the regulatory status of the building. (NYSCEF Doc No. * al6-* , decision and order, motion fsequence *].) Discovery has since concluded, and the following motions for summary judgment ensued. Respondent has eliminated issues olthe regulatory status fiom his current motion, and has moved for partial summary judgment and dismissal of the petition on the sole basis that respondent is not violating his residential lease. (NYSCEF Doc No. *, respondent's notice of motion Isequence *].) Respondent argues that, notwithstanding the certificate of occupancy, petitioner began renting the first-floor apartments for residential use as early as *. OJYSCEF Doc No. *, respondent's exhibit H, redacted residential leases.) Respondent took occupancy of the apartment pursuant to a residential lease in * with petitioner. That Iease and his renewal leases have since expired, and he is now a month-to month tenant. (NYSCEF Doc No. * at *, respondent's exhibit A, petition u *.) Respondent argues that he is not in breach ofhis lease which states that "[t]he [a]partment is to be used for a private [a]partment and for no other reason." (NYCEF Doc No. * at l, respondent's exhibit I fl *.) The rider to the lease cautions: "Tenant's use of premises is for residential purposes only," and "Occupancy ofthe demised premises is specifically limited by the Landlord to the use ofthose named on the lease." (ld. aI3, lltl *, *.) Regardless, respondent argues, petitioner has not exhausted its administrative remedies to legalize the apartment and, thus, the proceeding is premature. Petitioner opposes respondent's motion for summary judgment, and cross-moves for summary.judgment. OIYSCEF Doc No. *, petitioner's notice of cross-motion Isequence *].) Petitioner claims that it is undisputed that respondent's residential tenancy violates the certificate ofoccupancy, and that, based on an atfidavit and a letter from an architect, petitioner has, in fact, exhausted its administrative remedies to Iegalize respondent's apartment. (NYSCEF Doc No. , her denying While not the sole basis for the instant decision and order, the Hon. Frances Ortiz noted in decision petitioner's first motion for summary judgment that petitioner had not submitted a copy of the certificate of occupancy upon which petitioner relied in admissible form. {ld. n *.) Curiously, petitioner has not submitted any copy of the certificate of occupancy in support of its second motion for summary judgment. Rather, petitioner references exhibits annexed to a prior motion {NYSCEF Doc No.*, petitioner's exhibit B, motion lsequence *] ) which Judge ortiz found not to be admissible. * of * INDEX NO. LT-*-*/NY [HO] FILED: NEW YORK CIVIL COURT - L&T */*/* *:* A**** NYSCEF DOC. NO. * RECEIVED NYSCEF: */*/* *. petitioner's attorney's affirmation in support tlfl l-* ["It is manifestly clear that the premises cannot be legalized and the petitioner is entitled to a judgment ofpossession"l; Id. !l *.*) In support of its inability to legalize the apartment and exhaustion of administralive remedies, petitioner submits an afTidavit from an architect which adopts the opinion he issued in a letter dated ****arch *,*, to wit: "[T]he first floor ofthe building is unable to allow for residential use per the zoning code." Both the letter and the affidavit conclude that plans to legalize the premises will not be approved because ofzoning and unspecified "egress issues." (NYSCEF Doc No. *, Akerman letter dater ****arch22,*; NYSCEF Doc No. *, Akerman affidavit'lJ *.) Petitioner further points to a "notice of objection" from the New York City Department of Buildings C'DOB') dated January *,* which rejected petitioner's application to convert the space on the ground floor to residential use on the basis that the first floor ofthe building is commercially zoned. Q,JYSCEF Doc No. *, petitioner's exhibit B.) Finally, petitioner argues that no valid Iease could have been created between petitioner and respondent because the Iease violates the certif-rcate ofoccupancy; thus, any residential lease between petitioner and respondent "unlawful and unenforceable by this court." (NYSCEF Doc No. * at *, petitioner's attorney's affirmation fl *.) In reply and opposition respondent refers to the notice ofobjection issued by DOB in January * and the letter and affidavit from the architect. Respondent states that the notice of objection comprised zoning objections only, and specifically stated "none" under the objections heading "egress." Respondent argues that the notice ofobjection is not a final determination, and that the administrative comment at the end ofthe notice of objection makes this plain. "Plan review will be continuing after resolving the zoning objections." Q'JYSCEF Doc No. * at *, notice ofobjection.) Respondent also argues that issues regarding the regulatory status oithe premises preclude summary judgment. Petitioner, in reply, repeats that it has eliminated all possibility oflegalizing the apartment to comport with the lease, and objects to respondent having argued issues ofrent stabilization and substantial rehabilitation. Based on the relief sought in respondent's notice of motion, the court agrees with petitioner's objcction and decides these motions on the discrete issue of whether respondenl is in breach of a substantial obligation of his tenancy or his expired lease by utilizing the premises for residential purposes in violation olthe certificate of * of * INDEX NO. LT-*-*/NY [HO] FILED: NEW YORK CIVIL COURT - L&T */*/* *:* A**** NYSCEF DOC. NO. * RECEIVED NYSCEF: */*/* occupancy.* The court directs the parties' attention to the Part F rules which state: "Ifany discrepancy arises between the relief sought in the notice of motion and the relief sought in the supporting papers, the notice of motion controls." (Resolution Part F Rules allYt see also Rosenblatt v St. George Health and Racquetball Associutes, LLC,I l9 AD3d * [*'t Dept *] (the court cannot address a dispositive issue not raised by the partiesl.) DISCIISSION A court may employ the drastic remedy of summary judgment only where there is no doubt as to the absence oltriable issues. (Andre v Pomeroy,* NY2d *,* [*].) On such a motion, a court's function is to find, rather than to decide, issues of fact. (Southbridge Towers, lnc. v Renda,2l ****isc 3d * *[A], * NY Stip Op * *[U] [Civ Ct, NY County *], citing Epstein v Scally,* AD2d * [st Dept *].) The facts must be considered "in the light most favorable to the non-moving party." (Ortiz v Varsity Holdings, LLC,* NY3d *, * *].) Only upon a prima.facle showing of entitlement to summary judgment, does the burden shift to the non-moving party to establish material issues offact requiring a lrial. (Vega v Reslani Clonst. Corp., * * NY3d *, * [* ] *] [internal citations and quotation marks omitted].) As both parties have moved for summary judgment, the court will review each motion separately, in the light most favorable to the non-moving party. Ilespondent's ****otion Ibr Summarv Judsmcnt There is no dispute that a residential leases existed between the parties as early as *. That the terms ofthe expired lease extend into respondent's month to month tenancy is a matter of law. (See Park Summit Realty Corp. v Fronk, * ****isc 2d318,* [App Term *. affd, * AD2d * [1st Dept l98l], affd,56NY2d * [*]; New YorkTchrs. Hous. Corp. v Perez, * ****isc. 3d 12231A),* NY Slip Op * [ttl [Civ Ct, New York County *].) The plain language ofthe lease indicates that respondent must use the premises for residential purposes only, and that upon failing to do so, respondent will be in breach of the lease. Respondent has not breached a substantial obligation olhis tenancy by using the apartment as his residence; he is simply adhering to the explicit requirement oithe lease. * At the outset, the court notes that petitioner has, in part, commenced this proceeding on the basis of respondent's illegal use of the premises. "[A]s a resu lt of your wrongful and imperm issible use of the subject premises for residential living purposes . . . upon information and belief, violations exist in the subject premises which subject your Landlord to both civil and criminal penalties." (NYSCEF Doc No. * at *, notice to cure ) However, petitioner has proffered no proof of fines or penalties have been exacted a8ainst petitioner based on the illegal use of the apartment and, thus, no cause of action could be stated for same at this iuncture [* * of * INDEX NO. LT-*-*/NY [HO] FILED: NEW YORK CIVIL COURT - L&T */*/* *:* A**** NYSCEF DOC. NO. * RECEIVED NYSCEF: */*/* The burden having shifted to petitioner, petitioner has failed to raise triable issues of fact. It is simply not dispositive in the context of this proceeding that the premises is undisputedly zoned for commercial use. The inquiry at this juncture is whether petitioner has stated a cause of action against respondent os a tenctnt in viololion ofa substantial obligation of his residential tenancy. On the narrow issue before the court, respondent has not breached its obligations under its contract with petitioner. This alone warrants summary judgment in favor of respondent. ****oreover, petitioner does not point to any specific lease clause, conditional limitation, or tenancy obligation that of which respondent is in violation. Petitioner relies entirely on the use of the apartment in violation olthe cerlificate of occupancy.a In an attempt to eliminate issues of l'act regarding whether petitioner has exhausted all administrative remedies to legalize the apaftment, petitioner mischaracterizes the notice of objection, in concefi with the opinion of its current architect, as demonstrating that it has exhausted its administrative remedies. The notice ofobjection allows for petitioner to request a review ofthe submitted plans after resolution o/'the zoning lssre. Petitioner has come forth with no evidence that it has challenged the commercial zoning designation of the premises. Rather, petitioner submits a letter and an affidavit from an architect who simply repeats the obvious: that the subject apartment is commercially zoned, and refers, without specificity or detail, to a purported "egress problem [that is] unresolvable." Q'{YSCEF Doc No. *, Akerman affidavit fl *.) The architect states that "[mloreover, due to the egress issues, irrelevant to the zoning issues cited by the Department of Buildings, the conversion to residential use ultimately would not be approved by the Depafiment of Buildings." ('NIYSCEF Doc No. *, Akerman letter.)j Petitioner is, in essence, arguing that it would be futile to exhaust its administrative remedies, but it is the administrative process which provides final determinations, not an architect who "was retained by the Petitioner to determine whether the Petitioner could change the use of apartment 1A from commercial use to residential use." Q{YSCEF Doc No. *, Akerman affidavit fl *.) The architect's "expeft" alfidavit in opposition to respondent's motion for summary judgment is not probative. Petitioner's architect has provided no foundation lor its expertise in * use when it knew, or should have known, that the apartment is not zoned for such use. "[A] wrongdoer should not be able to take refuge behind the shield of his own wrong." lcen. Stencils, lnc. v Chioppo,lS NY2d I25,* I1s66l.) s lt is ironic, indeed, that petitioner itself created this illegality by renting the premises exclusively for residential Of interest is that the architect who has submitted the letter and the affidavit herein (Jeff Akerman) is not the same architect who submitted the conversion plans to the DOB (Jon Libasci). * of * INDEX NO. LT-*-*/NY [HO] FILED: NEW YORK CIVIL COURT - L&T */*/* *:* A**** NYSCEF DOC. NO. * RECEIVED NYSCEF: */*/* zoning. Indeed, the architect expertly dodges the issue of administrative exhaustion, choosing to aver instead that "petitioner has exhausted its ability to convert the premises from commercial to residential use." (/d. fl *.) No detail is provided as to what the egress issue could be. "In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions . . . setting forth an explanation of the reasoning and relying on specifically cited evidence in the record (intemal citations and quotes omitted)." (****ony v Lossef, I * AD3d * , * |st Dept *].) While an architect may be presumed to have some knowledge of zoning and egress issues, ofparticular import here (given that the notice ofobjection from DOB finds no Lssue with egress) is the zoning issue. "****ere conclusory assertions, devoid ofevidentiary facts, are insufficient [to defeat a well-supported summary judgment motion], as is reliance upon surmise, conjecture, or speculation (intemal citations and quotes omitted)." (Grullon v City of Nev, York,* AD2d261,*-* [l't Dept *].) Accordingly, respondent is entitled to summary judgment. Petitioner's Cross-****otion for Summarv Judsment Petitioner has not met its burden of demon straling a prima.facie entitlement to summary judgment as a matter of law in this breach oflease holdover summary proceeding. Petitioner's argument rests on respondent's use ofthe premises in violation ofthe certificate ofoccupancy, not in violation ofa substantial obligation ofhis tenancy as pleaded in the notice to cure and notice ol termination. ****oreover, petitioner's argument that no residential tenancy agreement exists between the parlies because the lease is unlawful and unenforceable and thus is void ab irllio proves too much. There is no cause here for relbrmation or recission of the lease. Perhaps this is why petitioner artfully did not specilically argue reformation or recission. A cause of action lbr reformation of contract, a "must be based either on mutual mistake or tiaudulcntly induced unilateral mistakc . . . A clainr lor rescission ofa contract mlrst bc predicated on the sarne grounds." (Goldberg v ****anufacturers Lde lns. Co.,* AD2d *,* ['t Dept *),lv denied * NY2d * [*].) In order for a court to rescind a contract on the basis of unilateral mistake, the moving party must establish, al a minimum, that (l) it entered into a contract under a mistake of material fact, and that (*) the other contracting pa(y either knew or should have known that such mistake was being made. (De sote v Knoedler Gallery, LLC,l37 F Supp 3d *,* [sD NY *]; see also I225 Realty owner LLC v ****ocal Enterprises, Inc., * * of * INDEX NO. LT-*-*/NY [HO] FILED: NEW YORK CIVIL COURT - L&T */*/* *:* A**** NYSCEF DOC. NO. * RECEIVED NYSCEF: */*/* AD3d * [st Dept *] [holding that a contract cannot be reformed on the basis ofunilateral mistake absent a showing offraud by the other party].) An agreement may be vacated ifa party can show that there existed a mutual mistake at the time of the stipulation that is so substantial that the stipulation does not represent a true meeting of the minds. (****atter of Gould t, Board oJ Education (* NY2d *.* [*].) The facts here do not support refbrming or rescinding the lease, or treating it as a nullity. Petitioner either knew or should have known that the premises is commercially zoned and aflirmatively offered respondent a contract to live in the premises for exclusively residential purposes. Respondent. however, had no reason to believe his apartment was not a legal residence, and petitioner does no1 suggest that the parties were laboring under a mutual mistake. Indeed, consistent with the lease and respondent's reasonable expectations, petitioner lreated respondent as a residential tenant, suing respondent fbr nonpayment ofrent due under the lease and averring in swom court documents that respondent is a residential tenant. QIIYSCEF Doc No. *. respondent's exhibit J, notice ofpetition and petition, Index No. */*.) Petitioner has not alleged any wrong-doing on respondent's part; nor does petitioner claim that respondent fraudulently induced it into renting him the apartment for residential use. CONCLUSION Accordingly, it is ORDERED that respondent's motion for summary judgment on the basis that he has not violated a substantial obligation of his tenancy is GRANTED, without prejudice to any remaining claims respondent may have; and it is fufiher ORDERED that petitioner's motion for summary judgment is DENIED, without prejudice to exhausting its adminisfative remedies, or commencing an appropriate proceeding; and it is further ORDERED that respondent shall serve this amended decision and order upon petitioner and file proof of service on NYSCEF. This constitutes the decision and order of this court.

why the judge ignored the counter claims

is there any situation that an appeal can be made after 1year?

But you mean to vacate judgement only or to continue the case

ok. By the court order I sent you. If there is newly discovered evidence and I want to continue on my counterclaim is it possible

what about if a claim medical issue. Like cancer treatment

On my case I wanted to continue solely on my counterclaims where the landlord allegations were already dismissed. So I don’t want it to nullify. I want to continue on my counter claims as it was noted on the order

my counter claim is rent overcharge and rent stabilization status

I already do as counterclaim on the case I showed you.

ok. So how could I inform the court that I want to continue the case solely on my counterclaims.

how long do I have to file this after decision order?

give me examples on how different

yes.

based on my case solely

Is my lawyer abandoning the case right after the decision a reasonable excuse?

What specific circumstance could be.

You said your lawyer abandoned your case right after the decision, it could potentially be considered a "reasonable excuse" for a delay. However, this is highly dependent on the specific circumstances of your case. What are the possible reasonable excuses you are talking about

So draft this motion. You have the specifics of the case already. The reasonable excuses are The sudden unavailability or misconduct of my attorney. ****istakes made in good faith, misunderstood a deadline as from what I was told and understood from judge order I could continue on my counter claim alone without prejudice and being on ongoing cancer treatment, also landlord harassment impacting my ability to operate normally given repeatedly disturbances

whay I want is a example with those details

I don’t want you to draft any legal document. Just how it would look like

what more details it would need? ****ore formal?

What do you mean by that? “ Certification of good faith: A statement that you have made a good faith effort to resolve the issue before resorting to court action.” there is nothing to be resolved out of court

I thought that the certification of good faith was to state that I missed the deadline due to misunderstanding the deadline. So it was a mistake in good faith