Opinion
17547-, 17548 Index No. 154592/22 Case Nos. 2022-04163, 2022-05634
03-21-2023
Brett WISE, Plaintiff–Respondent–Appellant, v. 1614 MADISON PARTNERS, LLC, Defendant–Appellant–Respondent.
Sidrane, Schwartz–Sidrane, Perinbasekar & Littman, LLP, Rockville Centre (Arun Perinbasekar of counsel), for appellant-respondent. Newman Ferrara LLP, New York (Roger A. Sachar of counsel), for respondent-appellant.
Sidrane, Schwartz–Sidrane, Perinbasekar & Littman, LLP, Rockville Centre (Arun Perinbasekar of counsel), for appellant-respondent.
Newman Ferrara LLP, New York (Roger A. Sachar of counsel), for respondent-appellant.
Kapnick, J.P., Kern, Gesmer, Moulton, Higgitt, JJ.
Orders, Supreme Court, New York County (Arlene P. Bluth, J.), entered August 29, 2022 and December 7, 2022, which, respectively, denied defendant's motion to dismiss the putative class action complaint asserting claims for rent overcharges and related declaratory relief and, to the extent appealed from, upon granting plaintiff's motion for class certification, limited the class to those tenants who reside in or formerly resided in the subject premises on or after May 27, 2018, unanimously affirmed, without costs.
The court correctly denied defendant's motion to dismiss, as the complaint adequately alleges that defendant improperly manipulated the initial legal regulated rents of apartments in the building through the offering of concessions to the tenants (see Rent Stabilization Code [9 NYCRR] § 2521.1[g]; Chernett v. Spruce 1209, LLC, 200 A.D.3d 596, 597, 161 N.Y.S.3d 48 [1st Dept. 2021] ). The court providently exercised its discretion in declining to consider defendant's untimely reply papers (see CPLR 2214[c] ; Bacchus v. Bronx Lebanon Hosp. Ctr., 192 A.D.3d 553, 554, 146 N.Y.S.3d 3 [1st Dept. 2021] ). In any event, the documents submitted on reply did not utterly refute the allegations that certain purported construction concessions were in fact not to reimburse the tenants for inconveniences arising from construction work, but rather, were part of a fraudulent scheme to register the initial rents charged at inflated amounts (see CPLR 3211[a][1] ; Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ). Defendant's reliance on ( Flynn v. Red Apple 670 Pac. St., LLC , 200 A.D.3d 607, 161 N.Y.S.3d 35 [1st Dept. 2021] ) and ( Matter of Century Operating Corp. v. Popolizio , 60 N.Y.2d 483, 470 N.Y.S.2d 346, 458 N.E.2d 805 [1983] ) is misplaced, as those cases are distinguishable on the facts and inapposite.
As the court found, the class period should commence on May 27, 2018, rather than May 27, 2016, as argued by plaintiff. The court correctly determined that the four-year statute of limitations under the former CPLR 213–a governed the rent overcharge claims, which accrued prior to the enactment of the Housing Stability and Tenant Protection Act (see Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, 35 N.Y.3d 332, 363, 130 N.Y.S.3d 759, 154 N.E.3d 972 [2020] ; Austin v. 25 Grove St. LLC, 202 A.D.3d 429, 430, 162 N.Y.S.3d 342 [1st Dept. 2022] ).
We have considered the remaining arguments and find them unavailing.