Opinion
100761/08.
Decided September 18, 2009.
Plaintiff was represented by James B Fishman, Esq., of Fishman Neil, LLP, New York, NY.
Defendants were represented by Judith M. Brener, Esq., New York, NY.
Plaintiff Fabian Obispo (Obispo) moves to reargue a prior order which denied Obispo's motion to strike defendants' answer and granted defendants' cross-motion to dismiss the complaint (Prior Order, dated March 16, 2009, annexed to the notice of motion at Exh. 5). This motion is denied for the reasons below.
The facts are set forth in the Prior Order as follows:
On January 17, 2008, plaintiff commenced this action to enforce a New York State Division of Housing and Community Renewal ("DHCR") fair market rent appeal ("FMRA") order. On January 19, 1990, a DHCR Administrator issued an order finding that the initial fair rent for the premises was $136.75 and awarded plaintiff $40,633.36 in overcharges. At the time of this determination, defendant Solil Management Corp. was plaintiff's landlord. On May 9, 1997, a Deputy Commissioner of the DHCR affirmed the prior finding that plaintiff was overcharged, but reduced the amount owed to $40,131.24 in overcharges. Plaintiff received a copy of this determination. It contained a statement, which read: "This Order may, upon expiration of the period for seeking review of this Order and Opinion pursuant to Article Seventy-eight of the [CPLR], be filed and enforced as a judgment." (DHCR Order and Opinion, attached as Exh. 7 to Affirmation of Blair Hofherr.) The landlord filed an Article 78 petition in this Court to challenge the Deputy Commissioner's determination, and on March 11, 1998, I denied the petition and dismissed the proceeding. Thereafter, the building was transferred to defendant 423 Madison Avenue L.L.C.
In his Amended Complaint, plaintiff seeks a judgment against defendants in the amount of $40,131.24 pursuant to the DHCR decisions, plus reasonable attorney's fees. . . .
Prior Order, 1-2.
Defendants' cross-moved for summary judgment in reliance upon the six year statute of limitations applicable to an action to enforce a FMRA order (CPLR 213, and see Sciarra v 531 East 83rd St. Owners Corp. , 8 AD3d 159 [1st Dept. 2004]). The Prior Order stated that the time from which the statute of limitations is measured began to run no later than upon entry of the March 11, 1998 denying the landlord's Article 78 petition (Prior Order, 3-4).
On reargument, Obispo contends that the court overlooked or misapprehended his argument as to why the statute of limitations does not bar this action. He argues that he only learned of the dismissal of the landlord's Article 78 proceeding in December 2007, so the statute of limitations should be measured from then under CPLR 203(g). CPLR 203(g) provides that
where the time within which an action must be commenced is computed from the time when facts were discovered or from the time when facts could reasonably be discovered, the action must be commenced within two years after such actual or imputed discovery or within the period otherwise provided, computed from the time the cause of action accrued, whichever is longer. Obispo argues that he was prevented from learning of the existence of his claim by the landlord's fraud and deception, and therefore he is entitled to an "equitable tolling" of the statute; that the statute of limitations should not apply to him because he was not represented by counsel withing the statutory period; and that enforcement of the statute of limitations on a FMRA claim is against public policy.
In his reply on the prior motion, Obispo alleged that he was aware of his claim against the landlord when the FMRA was decided in his favor, but held off on enforcing that determination. He claims that he called the landlord's office periodically to ask about the status of his rent overcharge claim, but was not provided with relevant information. He says he "may have called DHCR to check on what was happening with my FMRA", but has no specific recollection of when he called, or what they told him. After many years, he grew "tired of waiting for the landlord to repay" him, and retained counsel to pursue the claim. He denies knowing that the landlord had filed an Article 78 petition challenging the FMRA.
Obispo's contention that his landlord used fraud and deception to hide the existence of his claim rests on the fact that he did not receive a copy with notice of entry of the Court's decision denying the Article 78 petition. He only learned of that decision after he consulted with a lawyer, who obtained a copy. However, Obispo was not a party to that proceeding and was not entitled to receive service of a copy of the decision (which is a public document), so the landlord's failure to serve a copy of on him is not evidence of deception or fraud. There is no indication that the landlord hid the outcome, or that Obispo would have been unable to learn of the decision through the exercise of ordinary diligence. Moreover, if Obispo was unaware of the Article 78 petition, it cannot be said that he held off on seeking judicial enforcement of the FMRA until the Article 78 petition was decided.
Obispo's argument that it is against public policy to enforce the statute of limitations with regard to a rent overcharge claim, made without resort to any published authority, is without merit ( see, Sciarra, 8 AD3d 159). There also is no merit to the argument that the limitation period does not begin until after a party consults a lawyer.
Obispo's description of the years spent waiting to receive payment from his landlord shows that he knew he had a claim. This is not a case where a plaintiff was unaware of a claim, or where a defendant affirmatively hid facts regarding the existence of a claim from the plaintiff. Accordingly, Obispo is not entitled to an equitable tolling of the statute of limitations, and the "discovery" rule in CPLR 203(g) does not apply because he could have discovered that his claim was ripe through reasonable diligence ( see, Seigel, New York Practice § 43, at 59-60 [4th Ed.]).
In light of the foregoing, that part of Obispo's motion that seeks reargument of the denial in the Prior Order of his motion to strike the answer for defendants' failure to provide a bill of particulars is denied as moot.
It hereby is
ORDERED that plaintiff's motion to reargue is denied.