Stecher v. 85th Estates Co.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered August 29, 2005, which insofar as appealed from as limited by the briefs, granted defendants’ motion to dismiss the second and third causes of action for breach of contract, reversed, on the law, without costs, the motion denied and such causes of action reinstated.

The motion court erroneously dismissed the second and third causes of action, which it stated are based on a purported 1992 agreement, as time-barred. Such causes, however, are based on defendants’ refusal to offer plaintiff a renewal lease when his original lease expired on January 31, 2004. It was this refusal that was the breach that triggered the running of the statute of limitations. Thus, this action, which was commenced some four months later, was timely commenced. We also find no merit to defendants’ claim that the March 4, 1992 letter bars the present action.

With regard to the separate dissents, plaintiff has not appealed the dismissal of his first cause of action for specific performance of the alleged 1992 agreement, the same relief sought by the plaintiff in Drucker v Mauro (30 AD3d 37 [2006], appeal dismissed 7 NY3d 844 [2006]), and an injunction barring defendants from maintaining a holdover proceeding against him on the ground that the apartment is no longer his primary residence. Thus, it is not the subject of this appeal and has been relegated to Civil Court for determination. Nor does he appeal from the dismissal of the fourth cause of action for recovery of an alleged $50,000 illegal rent overcharge. Rather, he limits his appeal to the dismissal of the second and third causes of action. Nevertheless, the dissenters, although agreeing that plaintiff may assert his purported right to a renewal lease in defense of the pending holdover proceeding where the enforceability of the parties’ agreement, an issue raised for the first time on appeal, will be decided, both seek to prejudge the issue.

In any event, even though a violation of public policy may be raised for the first time on appeal and defendants have raised the issue of unenforceability on that ground in their brief, this case is readily distinguishable from Drucker v Mauro since, as already noted, plaintiff’s cause of action for specific performance of the alleged agreement has been relegated to Civil Court for determination and is not the subject of this appeal. There is also no claim that plaintiff obtained anything more than a valid rent stabilized lease and neither party seeks reformation or rescission of the alleged contract, which was freely entered into and acquiesced in for more than 10 years before being finally challenged, as the tenants sought to do in Schultz v 400 Coop. Corp. (292 AD2d 16 [2002]). Rather, plaintiff, in his second and third causes of action, is seeking damages for defendants’ refusal to renew or extend his lease of the subject rent stabilized apartment. As noted by this Court in 390 W. End Assoc, v Baron (274 AD2d 330, 333 [2000]), even where a lease is void, a tenant may pursue a claim with respect to profits obtained by a landlord in violation of the Rent Stabilization Law. Concur—Andrias, Marlow and Malone, JJ.