Dixon v. 105 West 75th Street LLC

Gesmer, J.,

dissents in part in a memorandum as follows: I agree with the majority’s finding that the landlord defendants (landlord) are not entitled to legal fees and costs, and join in that portion of the memorandum. However, because I do not *631agree that the landlord submitted sufficient documentation in admissible form (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Advanced Global Tech., LLC v Sirius Satellite Radio, Inc., 44 AD3d 317, 318 [1st Dept 2007]) to “utterly refute [ ]” plaintiff’s claims and establish a defense as a matter of law (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]), I respectfully dissent from the balance of the majority opinion. Specifically, the vast majority of the documents on which the landlord relies are neither certified (CPLR 4518 [c]), identified as business records (CPLR 4518 [a]), nor otherwise authenticated by a competent witness (AQ Asset Mgt. LLC v Levine, 128 AD3d 620, 621 [1st Dept 2015] [unsworn email list not authenticated by the defendants’ affiants was inadmissible hearsay]).

The landlord is the owner of a building at 105 West 75th Street. It is undisputed that it registered apartment 5B in the building with the Division of Housing and Community Renewal (DHCR) as rent stabilized through 2004, with the last regulated rent listed as $1,117, and with the apartment registered as “vacant” in 2003 and 2004. It is further undisputed that the landlord did not register the apartment with the DHCR again until August 2014.

On April 4, 2013, plaintiff entered into a one-year lease for the apartment at a monthly rent of $3,200. The lease provides that the apartment is not subject to rent stabilization. On March 1, 2014, he signed a one-year renewal, titled “decontrolled apartment lease renewal” (capitalization omitted).

In or about June 2014, plaintiff obtained the rental history for the apartment from the DHCR. On or about August 14, 2014, plaintiff, through counsel, wrote to the landlord requesting that it provide him with a rent-stabilized lease and reimburse him for rent paid in excess of the regulated rent in effect on the date of the last registration filed with the DHCR. On or about August 18, 2014, the landlord filed a DHCR registration form alleging that the apartment is exempt from rent stabilization due to “[m]ajor capital improvements” and a “new duplex apartment,” explaining that a “penthouse and terrace [were] added to [the] apartment making it a new duplex apartment with terrace entitling owner to a first rent.”

On October 7, 2014, plaintiff commenced this action, in which he claims, inter alia, that “the extension purportedly added to the subject apartment already existed in the apartment before the alleged renovations and therefore did not result in increased dwelling space or improvements.” In his affidavit, plaintiff claims that the existing rooftop structure differs from *632the structure described in the landlord’s plans. Plaintiff seeks a declaratory judgment that the apartment is illegal because the certificate of occupancy in effect at the time listed 9 units, rather than 10; an order directing the landlord to legalize the apartment by amending the certificate of occupancy; a declaratory judgment that the apartment is rent stabilized, and that the rent charged exceeds the lawful rent; an order directing the landlord to offer him a rent-stabilized lease at the legal rent, and to register the apartment with the DHCR; money damages for rent overcharge; and counsel fees.

In response, on or about December 9, 2014, the landlord filed a motion to dismiss the complaint based on documentary evidence. In support of the motion, the landlord submitted only two certified documents: (1) the Landmarks Preservation Commission’s December 10, 2002 Certificate of No Effect, permitting construction of a “one-story rooftop addition . . . ; [the] install [ation of] a glass skylight and metal railing at the roof; and the demolition and construction of interior non-bearing partitions and finishes”; and (2) architectural drawings of the “4th floor plan” and “penthouse & roof plan” (capitalization omitted), which do not show clearly how the configuration of the apartment allegedly changed, and which plaintiff alleges do not conform to the actual dimensions of the apartment as it exists today. Although the landlord did not authenticate the remaining documents it attached, plaintiff does not dispute the authenticity of the DHCR printout showing the apartment’s rental history, his lease and renewal, and the August 14, 2014 DHCR registration statement. He also acknowledges that the certificate of occupancy existing at the time he moved in listed the building as containing 9 units, when, in fact, there are 10.

On April 13, 2015, the motion court issued its decision and order on the landlord’s motion, finding that the unit is “a newly created duplex apartment which did not previously exist,” and that the landlord spent approximately $200,000 in renovation costs, entitling it to raise the legal rent to over $2,000 per month, the threshold for rent deregulation for apartments that were vacant prior to June 24, 2011 (9 NYCRR 2520.11 [r] [4]). The motion court based its finding on the certificates of occupancy issued before and after renovation of the apartment, Department of Buildings work permits, and contractor’s and plumber’s invoices and canceled checks submitted by the landlord. None of these documents was certified or otherwise authenticated.

On June 23, 2015, plaintiff moved to renew and reargue, and for a stay of the Housing Court holdover proceeding the *633landlord had commenced against him, leave to file an amended complaint, sanctions, and an order directing that the DHCR decide the rent-stabilization status of the apartment. In his motion, plaintiff argued that the landlord had not submitted sufficient documentary evidence to prove its defenses as a matter of law, and claimed that the Department of Buildings had issued violations against the landlord and determined that the certificate of occupancy was issued in error because the roof structure does not comply with the plans submitted and violates provisions of the Multiple Dwelling Law.

On August 11, 2015, the motion court issued its decision and order denying plaintiff’s motion in all respects.1 He now appeals from both orders of the motion court.

A motion for dismissal based on documentary evidence under CPLR 3211 (a) (1) “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen, 98 NY2d at 326). Documentary evidence sufficient for dismissal under CPLR 3211 (a) (1) must be in admissible form (Advanced Global Tech., LLC, 44 AD3d at 318).

Section 2522.4 (a) (1) of the Rent Stabilization Code, cited by the majority, provides: “An owner is entitled to a rent increase where there has been a substantial increase, other than an increase for which an adjustment may be claimed pursuant to paragraph (2) of this subdivision,[2] of dwelling space or an increase in the services, or installation of new equipment or improvements, or new furniture or furnishings, provided in or to the tenant’s housing accommodation .... In the case of vacant housing accommodations, tenant consent shall not be required.” Where the landlord meets its burden (Matter of West Vil. Assoc. v Division of Hous. & Community Renewal, 277 AD2d 111, 113 [1st Dept 2000]), it may increase a tenant’s rent by one-fortieth of the cost of the “substantial increase” created prior to September 24, 2011, exclusive of finance charges (9 NYCRR 2522.4 [a] [1], [4]). A landlord who is entitled to a rent increase based upon the installation of new equipment, or new furniture or furnishings is not entitled to a further rent increase “based upon the installation of similar equipment, or new furniture or furnishings within the useful life of such new *634equipment, or new furniture or furnishings” (9 NYCRR 2522.4 [a] [11]). In addition, a landlord’s request for a rental adjustment under this section shall not be granted if, inter alia, there exist any “immediately hazardous violations of any municipal, county, State or Federal law which relate to the maintenance of such services” (9 NYCRR 2522.4 [a] [13]). Furthermore, “[t]he determination of the appropriate adjustment of a legal regulated rent shall take into consideration all factors bearing on the equities involved, subject to the general limitation that the adjustment can be put into effect without dislocation and hardship inconsistent with the purposes of the RSL, and including as a factor a return of the actual cost to the owner, exclusive of interest or other carrying charges, and the increase in the rental value of the housing accommodations” (9 NYCRR 2522.4 [a] [6]). The “substantial increase” provision is not the same as the much narrower policy governing the determination of a landlord’s right to charge a “first” or “free market rent.” The latter is “an administratively created policy implemented by DHCR in its capacity as the administrative agency which regulates residential rents. The policy applies only when the perimeter walls of the apartment have been substantially moved and changed and where the previous apartment, essentially, ceases to exist, thereby rendering its rental history meaningless” (Matter of 300 W. 49th St. Assoc. v New York State Div. of Hous. & Community Renewal, Off. of Rent Admin., 212 AD2d 250, 253 [1st Dept 1995]). The landlord has the burden to show “reconfiguration plus obliteration of the prior apartment’s particular identity” (Matter of Devlin v New York State Div. of Hous. & Community Renewal, 309 AD2d 191, 194 [1st Dept 2003], lv denied 2 NY3d 705 [2004]; see also Matter of Myers v D'Agosta, 202 AD2d 223, 224 [1st Dept 1994] [noting DHCR’s 1987 ruling to this effect]).

Here, the landlord has not submitted sufficient documentation in admissible form to establish conclusively, as a matter of law, that it is entitled to a rental increase and deregulation based on either a “substantial increase” or reconfiguration and obliteration of the prior apartment.

There are at least three problems with the landlord’s claim to a rent increase based on an alleged “substantial increase.” First, it has offered no documentation establishing the configuration of the apartment prior to renovation, making it impossible to know whether or how the apartment’s living space has increased. There is no affidavit by anyone with personal knowledge as to the original and post-construction configurations. Although the landlord repeatedly refers to the *635rooftop structure as a “penthouse,” it is not clear from any of the documents proffered what rooftop structure was added, since plaintiff claims that the existing rooftop structure does not match the structure outlined in the plans.3 Second, the copies of the contractor’s and plumber’s invoices and canceled checks are not certified or otherwise authenticated. There is no affidavit by anyone that the invoices were “made in the regular course of . . . business and that it was the regular course of such business to make [them], at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter” (CPLR 4518 [a]). Finally, even if these documents were in admissible form, they do not provide enough documentation to justify a rent increase. The unauthenticated bill from Bonanno Construction for a non-itemized total of $184,000 lists the “[d]eposit[ ]” paid as “0,” yet all but three of the unauthenticated canceled checks (totaling just $26,000) submitted by the landlord predate the bill. Moreover, it is not clear from the documents submitted what sums are attributable to the subject apartment, rather than the apartment next door, which the landlord claims it was also renovating at the same time, or, for that matter, to work on other units or common spaces of the building. Nor do these documents establish whether any of the equipment installed replaced similar equipment that was “within the useful life of such . . . equipment” (9 NYCRR 2522.4 [a] [11]). Furthermore, plaintiff claims on his motion to renew and reargue that the work was conducted in violation of the Multiple Dwelling Law, raising a question as to whether the landlord is barred from collecting an increased rent under the Rent Stabilization Code (9 NYCRR 2522.4 [a] [13]).

The landlord’s claim of entitlement to a “first rent” is similarly problematic. Indeed, the landlord’s counsel concedes that “the perimeter of the existing 5th floor space was not altered.”4 Furthermore, the copies of the certificates of occupancy and DOB work permits relied upon by the motion *636court were not certified, and were thus an improper basis for dismissal based on documentary evidence (CPLR 4518 [c]; see also Morton v 338 W. 46th St. Realty, LLC, 45 Misc 3d 544, 553 [Civ Ct, NY County 2014] [the court could not determine from certificate of occupancy the scope of the work and whether the work performed qualified the únit for “first rent” status]). In addition, plaintiff claimed on his motion to renew and reargue that the DOB had determined that the certificate of occupancy contained errors, further calling into question its reliability.

While it may turn out that the landlord conducted renovations entitling it to remove the apartment from rent stabilization, I would find that the landlord has failed to meet its burden of proof based on the documentary evidence submitted. The cases cited by the landlord’s counsel in support of its claim that this Court and the Appellate Term have previously accepted similar documentation do not support that position, since both decisions cited were issued after a trial at which a full evidentiary presentation was made (Jemrock Realty Co., LLC v Krugman, 18 Misc 3d 15 [App Term, 1st Dept 2007], affd 72 AD3d 438 [1st Dept 2010], lv dismissed 15 NY3d 866 [2010]; 206 W. 104th St., LLC v Cohen, 41 Misc 3d 134[A], 2013 NY Slip Op 51858 [U] [App Term, 1st Dept 2013]).

. The landlord states in its appellate brief that plaintiff has since been evicted from the apartment. Since that is outside the record, we cannot consider it.

. 9 NYCRR 2522.4 (a) (2) permits landlords to “file an application” for rent increases based on specified building wide “major capital improvement[s]” under certain circumstances (9 NYCRR 2522.4 [a] [2] [i]).

. With its reply papers, the landlord submitted photographs purporting to show portions of the apartment and the affidavit of Carl Kissin, who claims he resided in the neighboring apartment prior to construction. However, the photographs are not properly authenticated in that no person with personal knowledge identifies them as an accurate representation of the subject apartment. Moreover, an affidavit that merely asserts the inaccuracy of plaintiff’s claims, much less one that does not make any claims about the subject apartment, is not “documentary evidence” for CPLR 3211 purposes (Solomons v Douglas Elliman LLC, 94 AD3d 468, 469 [1st Dept 2012]). Similarly, the landlord’s counsel’s reply affirmation is also insufficient to prove the claims made about the work performed.

. 446-450 Realty Co., L.P. v Higbie (30 Misc 3d 71, 73 [App Term, 1st Dept 2010]), cited by the majority, provides no facts, other than to state that *636“significant dimensional changes” were made in creating a duplex apartment from what had been a single floor unit, resulting in first rent status. In any event, that case does not alter the landlord’s burden to show that the alteration resulted in the “obliteration of the prior apartment’s particular identity” (Matter of Devlin, 309 AD2d at 194).