appeals from the order of the Supreme Court, New York County
(Nancy M. Bannon, J.), entered November 6, 2014, which, to
the extent appealed from as limited by the briefs, denied
plaintiff's motion for summary judgment on its first
cause of action and defendant's cross motion for summary
judgment dismissing the first, second, and fourth causes of
action. Defendant appeals from the order, same court and
Justice, entered on or about February 24, 2016, which denied
his motion to renew.
Burden Wenig & Goldman, LLP, New York (Magda L. Cruz,
Sherwin Belkin, Robert A. Jacobs and Matthew Brett of
counsel), for appellant-respondent.
Savona, D'Erasmo & Hyer, LLC, New York (Joseph F. X.
Savona and Raymond M. D'Erasmo of counsel), for
Tom, J.P., Dianne T. Renwick, Sallie Manzanet-Daniels, Judith
J. Gische, Troy K. Webber, JJ.
central issue in these appeals concerns the validity of a
1975 lease agreement for three combined apartments that
provided, inter alia, that the rent-regulated status of the
combined unit would be changed from rent-controlled to rent
stabilized. While we do not depart from longstanding
precedent holding that leases that attempt to circumvent the
rent laws or remove an apartment from rent regulation are
void as against public policy, statute, and code (see
Drucker v Mauro, 30 A.D.3d 37');">30 A.D.3d 37 [1st Dept 2006],
appeal dismissed 7 N.Y.3d 844');">7 N.Y.3d 844 ); 390 W.
End Assoc. v Harel, 298 A.D.2d 11');">298 A.D.2d 11');">298 A.D.2d 11');">298 A.D.2d 11 [1st Dept 2002]; Rent
Stabilization Code [9 NYCRR] 2520.13; Rent Control Law
[Administrative Code of City of NY] § 26-412), we find
the lease in this case, which explicitly contemplated the
possibility that the apartment would not be decontrolled and
expressly stated that the status of the apartment would be
determined by the appropriate authority, which will bind the
parties, to be valid.
about 1963, defendant moved into apartment 4B at 204 Columbia
Heights, Brooklyn, as a rent-controlled tenant. In 1966, he
also rented apartment 4C. He obtained permission from his
then-landlord, nonparty Columbia Terrace, Inc., to combine
apartments 4B and 4C and make certain improvements, such as
installing a shower/sauna in place of one of the bathrooms.
apartment 4A became vacant, defendant desired to rent it so
that he could eventually combine it with apartments 4B-C.
However, because the landlord had a couple ready to rent the
apartment, it was agreed that defendant would be the prime
tenant for that apartment and the couple would sublet the
unit and actually live in it.
defendant continued to have subtenants in apartment 4A
through 1975, at that point he was ready to combine all three
apartments. Accordingly, by a lease dated as of September 1,
1975 but not executed until July 19, 1977, Columbia Terrace
agreed to rent apartments 4A-C to defendant from September 1,
1975 to August 31, 1977 for $650 per month, with an option to
renew for an additional three years. The printed (form) part
of the lease says the following about repairs:
shall take good care of the demised premises... [A]t
Tenant's own cost and expense, Tenant shall make all
repairs thereto and to any other part of the building which
are necessitated by the misuse, negligence, carelessness,
neglect or improper conduct of Tenant [or] Tenant's
family.... If Tenant fails to proceed to make such repairs...
within 7 days after notice from Landlord, ... the same may be
made by Landlord at the expense of Tenant and the cost
thereof shall be collectible as additional rent."
printed part of the lease also contains the following
attorneys' fee provision:
"If tenant shall default in the observation or
performance of any term or covenant on tenant's part to
be observed or performed..., landlord may... perform the
obligation of tenant.... [I]f landlord, in connection
therewith..., makes any expenditures or incurs any
obligations for the payment of money, including...
attorney's fees, in instituting, prosecuting or defending
any action or proceeding, such sums so paid or obligations
incurred... shall be deemed to be additional rent
typewritten rider to the lease shows that it was contemplated
that apartments 4A-C would move from rent control to rent
"[T]he provisions of this lease respecting length of
term, renewal options and amount of rent, have been agreed
upon... on the express understanding that the former three
apartments comprising the area which is being leased to the
Tenant... will be recognized by the appropriate authority
having jurisdiction to be free of the restraints and
limitations of the provisions of the Rent Control Laws... and
to be subject only to the Rent Stabilization Act."
the parties also recognized that the entire apartment might
not be decontrolled. After two paragraphs (30[i] and [ii])
setting forth the rent for the renewal period if the premises
were decontrolled, paragraph 30(iii) states:
"[I]f... the parties are prohibited or precluded from
following the procedure described under (i) or (ii)... the
rent will be determined by treating the unit as though (a)
the separate decontrolled rent for former apartment 4A
... for the Basic Term [i.e., Sept. 1,
1975 - Aug. 31, 1977] is $270.00 per month and (b) the
monthly rent for the Renewal Term for that former apartment
4A would be $270.00 plus the maximum allowable increase under
Rent Stabilization... and (c) the rents for the former
apartments 4B and 4C shall be equal to the maximum
collectible rents that would be permitted... under the...
rent control laws."
31 of the rider, titled "Tenant Improvements"
explicitly provides defendant with permission to perform
certain renovation and alteration work in the combined
apartment, with the costs to be borne by defendant. That
paragraph also says, "Landlord shall be under no
obligation, of any kind, to make any repairs to any
equipment, fixtures, furnishings, or facilities constructed,
altered, [or] erected by the Tenant or installed by [him]...
or any repairs made necessary by reason of [his] acts or
omissions." Similarly, paragraph 33 says that after May
1975, "Tenant will... maintain all of [his] own
installations without any obligation on ...