I. Behar, P.C. (Leon I. Behar), for appellant.
Brooklyn Legal Services (Nadya E. Rosen and Andrew A. Ortiz),
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P.
appeals from (1) an order of the Civil Court of the City of
New York, Kings County (Gary Franklin Marton, J.), dated
August 3, 2015, deemed in part from a final judgment of that
court entered April 1, 2016 (see CPLR 5501 [c]), and (2) an
order of that court dated June 17, 2016. The final judgment,
entered pursuant to so much of the order dated August 3, 2015
as granted a motion by tenant Suzette Hamilton, sued herein
as Hamilton "Doe, " for summary judgment, dismissed
the petition in a holdover summary proceeding. The order
dated August 3, 2015, insofar as directly appealed from,
denied as moot landlord's cross motion for use and
occupancy. The order entered June 17, 2016 denied
landlord's motion for leave to renew its opposition to
tenant's motion for summary judgment.
that the order dated August 3, 2015, insofar as reviewed on
direct appeal, the final judgment, and the order entered June
17, 2016 are affirmed, without costs.
as is relevant to this appeal in this holdover proceeding,
the notice of termination and petition allege that tenant
Suzette Hamilton, sued herein as Hamilton "Doe, "
is a month-to-month tenant pursuant to an oral agreement and
that the subject apartment is not rent stabilized. As the
basis for the claim that the apartment is not rent
stabilized, landlord alleged that the apartment had reached a
maximum legal rent exceeding $2, 000. Tenant's answer
asserts that the apartment is subject to rent stabilization.
Tenant moved for summary judgment dismissing the petition,
attaching printouts from the Division of Housing and
Community Renewal (DHCR) which, she claimed, demonstrated
that her apartment could not have lawfully reached a rent of
$2, 000. Annexed to tenant's papers was a copy of a
written lease for the subject premises for a one-year term
commencing on August 1, 2010, signed by Alex Varveris as
landlord. Tenant's affidavit asserted that Varveris was
the prior landlord and that she had paid rent to him.
opposed the motion, contending that the unit was subject to
high-rent deregulation, but did not contest tenant's
claim that she had entered into possession pursuant to the
proffered written lease. Landlord also cross-moved for an
award of use and occupancy.
order dated August 3, 2015, following a detailed analysis of
the DHCR printouts, the Civil Court concluded, based on the
owner-provided information contained in the printouts, that
the legal regulated rent for tenant's unit could not have
reached the then-applicable threshold of $2, 000 per month
and that the unit was, thus, rent stabilized. Accordingly,
the court granted tenant's motion for summary judgment
dismissing the petition. The court also denied as moot
landlord's cross motion. Landlord's notice of appeal
from the order dated August 3, 2015 is deemed in part to be
from a final judgment, entered pursuant to the order,
dismissing the petition (see CPLR 5501 [c]).
the entry of the final judgment, landlord moved for leave to
renew its opposition to tenant's motion for summary
judgment, asserting, for the first time in this proceeding,
that Varveris had not been authorized to execute a lease with
tenant and that landlord itself had never intended to create
a tenancy of any kind with tenant. By order dated June 17,
2016, the Civil Court denied landlord's motion for leave
to renew, noting, among other things, that landlord's
motion did not address the court's holding that the rent
for the premises had never crossed the then-applicable
deregulation threshold of $2, 000 per month. Landlord filed a
separate notice of appeal from the June 17, 2016 order, and
the appeals were consolidated by this court.
contention on appeal that, in support of her motion for
summary judgment, tenant did not establish a prima facie
showing that she had a valid lease, lacks merit. Thus, there
is no basis to disturb the final judgment on landlord's
direct appeal therefrom. In view of the dismissal of the
petition, landlord's cross motion for use and occupancy
was properly denied (see Esposito v Larig, 52
Misc.3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists
support of its motion for leave to renew, landlord was
required either to present new facts which were unavailable
at the time of its opposition to tenant's motion for
summary judgment or a reasonable justification for the
failure to have presented such facts on the prior motion
(see CPLR 2221 [e]; Deutsche Bank Natl. Trust
Co. v Matheson, 77 A.D.3d 883');">77 A.D.3d 883 ). As landlord
failed to provide either, and, as noted by the Civil Court,
failed to address the court's determination that the rent
for the premises had never crossed the deregulation
threshold, the court properly denied landlord's motion
(see Caraballo v Kim, 63 A.D.3d 976');">63 A.D.3d 976 ;
Dinten-Quiros v Brown, 49 A.D.3d 588');">49 A.D.3d 588 ;
Madison v Tahir, 45 A.D.3d 744');">45 A.D.3d 744 ).
note, in any event, that landlord's new theory-that no
tenancy ever existed-contradicts its notice of termination
and its petition. Since predicate notices cannot be amended
(see Chinatown Apts. Inc. v Chu Cho Lam, 51 N.Y.2d
786, 788 ), landlord's new theory fails to provide
a rationale for disturbing the Civil Court's grant of
summary judgment to tenant.
the order dated August 3, 2015, insofar as reviewed on direct
appeal, the final judgment, and the order ...