Petitioner commenced this holdover summary proceeding seeking possession of Apartment No. 4 located at 250 12th Street, Brooklyn, New York, upon the grounds that the Respondent, Robert Gates, vacated the subject premises and his licensee, Valerie Scott's, right to occupy that premises has expired. At trial, petitioner moves for summary judgment. For the reasons set forth below, petitioner's motion is denied.

Petitioner alleges that the premises is a deregulated SRO hotel. In support of that contention, petitioner submits "I-Cards" (Initial Inspection Cards) from the NYC Department of Housing Preservation and Development ("HPD") which are stamped with the legend: "Heretofore Converted B." It is petitioner's contention that the I-Cards show that alteration plans were filed converting the subject premises to a Class B rooming house, deregulating the premises. The stated reliance on HPD's I-Cards is misplaced. "Heretofore Converted" designates a building: "Originally erected as a one- or two-family dwelling, and converted prior to April 18, 1929 to a multiple dwelling, and classified as a converted dwelling as per MDL § 4.10." (See, Dept. Of Buildings, PW-1: Multiple Dwelling Classifications, February 22, 2006).

The petitioner further alleges that the premises are exempt from the Rent Stabilization Code ("RSC") pursuant to Section 2520.11(g) which exempts: "rooms or other housing accommodations in hotels where such housing accommodations (1) are used for transient occupancy; (2) were rented on May 31, 1968 for more than $350.00 per month or $88.00 per week; or (3) are contained in a hotel which was constructed after July 1, 1969." If the premises were rented for less than $350 per month or $88 per week on May 31, 1968 and are occupied by a "permanent tenant" they will be subject to Rent Stabilization. (See Scherer, Residential Landlord-Tenant Law in New York, § 4:47). Petitioner maintains: "that the rent was never lower than $350 per month" but offers no evidence in support of that statement. Having resided at the premises for eight years, the status of respondent(s) as "permanent tenants" has not been challenged.

Petitioner placed in evidence a DHCR Building Rent Roll for the year 2003 filed March 1, 2004 showing the building status as "Permanently Exempt" due to a substantial rehabilitation, and a number of Hotel Register receipts indicating that a daily rent of $100 was charged and paid. There was, however, no evidence submitted in support of the accuracy of such registration or the amount of rent charged.

Respondent contends that Apartment 4 is subject to Rent Stabilization, claims that she has an independent possessory right to continue to reside in the premises and asserts a "Braschi" defense to counter petitioner's licensee claim. Respondent further alleges that hotel status not having been established, and the required hotel services not having been provided, petitioner's claim that the premises are deregulated must be based on its allegation of substantial rehabilitation. Respondent refers to RSC § 2520.11(e) which specifically exempts housing accommodations in buildings substantially rehabilitated as family units on or after January 1, 1974, with certain exceptions.

In support of her argument, respondent submits an individual DHCR Apartment Rent History for Apartment 4 for the years 1984 through and including 2004. While there is no record of an Initial (1984) Apartment Registration, Apartment 4 was registered as Rent Stabilized for the years 1985 through and including 1995. For the years 1996 and 1997 the apartment was registered as Vacant.Notably, in 1985 the apartment was registered at $325.00 per month. The 1985 registration, combined with Rent Stabilized registrations for the years 1985 through 1995 raises a question as to the exemption alleged as of 1968: if the rent was $350 per month or higher as of May 31, 1968, how could the rent be $325 per month in 1985; and why would the unit be treated as Rent Stabilized for two and a half decades? Respondent's individual Apartment Rent History shows a listing of Apartment 4 as "Permanently Exempt" as of 1998 (filed March 1, 2004) due to a substantial rehabilitation.

Respondent points out that to qualify for exemption pursuant to a substantial rehabilitation, certain criteria must be met. At least seventy-five (75%) per cent of building-wide and individual apartment systems must have been replaced, including plumbing, heating, gas supply, electrical wiring, intercoms, windows, roof, elevators, incinerators or waste compactors, fire escapes, interior stairways, kitchens, bathrooms, floors, ceilings and wall surfaces, pointing or exterior surface repair as needed , and/or all doors and frames including the replacement of non-fire-rated items with fire-rated ones. Respondent also claims that there is no evidence in the record or Department of Buildings files that the premises has been substantially rehabilitated on or after January 1, 1974.

The court notes that such extensive work as is required to qualify as a substantial rehabilitation, if performed in or around 1998, would have necessitated an application to the Department of Buildings for, and the subsequent issuance of a Certificate of Occupancy. Both sides agree that the subject premises has no Certificate of Occupancy. This raises a question of fact as to the sufficiency of the substantial rehabilitation exemption claimed by petitioner. Accordingly, petitioner's motion is denied without prejudice to renew upon submission of evidence in support of its claim that the premises is or was deregulated as the result of a substantial rehabilitation. [*2]

This constitutes the decision and order of the court.

Dated:Brooklyn, New York

June 30, 2008

_________________________________ANTHONY J. FIORELLA, JR., J.H.C.