Civil Court of the City of New York, Kings County, August 7, 2019

Make The Road, Brooklyn (Jennie Stephen-Romero of counsel), for Antonio Dominguez, respondent.

Wenig Saltiel LLP, Brooklyn (Meryl Wenig of counsel), for petitioner.

The decision and order is as follows:

In this nonpayment proceeding, respondent previously moved for summary judgment on his claim of rent overcharge asserting that there was a "fraudulent scheme" on the part of the petitioner to deregulate through the taking of improper rent increases.^[FN1] By decision and order dated May 9, 2019, this court denied respondent's motion for summary judgment and granted petitioner summary judgment on the issue of rent overcharge, dismissing all parts of respondent's answer alleging rent overcharge either as a defense or counterclaim. That decision and order dated May 9, 2019, is incorporated herein by reference as if fully set forth.

The court notes that it also declined to sign respondent's order to show cause seeking reargument on the foregoing decision and referred the matter back to the Trial Part for trial on this 2017 "summary proceeding." When the proceeding was scheduled for trial respondent submitted an order to show cause now seeking "renewal" rather than reargument. This court declined to sign the current order to show cause for reargument which has since been referred back by the Appellate Term for this court's review. For the reasons set forth hereafter respondent's request for leave to renew is denied and this matter is referred back to the trial judge, so it may proceed to trial.

The crux of respondent's request for renewal is the recent enactment of the Housing [*2]Stability and Tenant Protection Act of 2019 (L 2019, ch 36 [HSTPA]). Respondent relies on the{**65 Misc 3d at 420} expansion of the scope of inquiry under that act vis-à-vis—the scope of inquiry and the time frame for raising issues of an alleged fraudulent scheme.

In submitting this order to show cause, respondent initially ignores the clear language contained in the HSTPA (L 2019, ch 36, § 1, part F, § 7) regarding rent overcharge claims. There it states, "This act shall take effect immediately and shall apply to any claims pending or filed on or after such date." (Id.) Notably, respondent's claim of rent overcharge was filed prior to the effective date of the HSTPA and was not pending at the time of the HSTPA enactment, having already been dismissed by this court. Therefore, the HSTPA does not act as a basis for renewal with respect to the prior claim. To hold otherwise would give the HSTPA unintended retroactive effect, notwithstanding that the prior decision of this court was decided based upon the law existing at the time.

Furthermore, even if the HSTPA were applicable to the current situation, there would be no basis for renewal of the previously issued decision and order dated May 9, 2019. The HSTPA states in pertinent part "the courts, . . . in investigating complaints of overcharge and in determining legal regulated rents, shall consider all available rent history which is reasonably necessary to make such determinations." (Emergency Tenant Protection Act of 1974 § 12 [a] [9] [McKinney's Uncons Laws of NY § 8632 (a) (9) (L 1974, ch 576, sec 4, § 12), as amended by HSTPA, L 2019, ch 36, § 1, part F, § 2].) Even a cursory review of the May 9, 2019 decision and order demonstrates that the court did a step-by-step analysis of the entire rent history and could not find any issue of a fraudulent scheme to deregulate. In fact, the only error that the court found was an $11.90 error on the part of the petitioner.

In detailing its analysis this court took into account all the factors now being formalized in the HSTPA which the court determined were reasonably necessary to reach the court's decision and order. This court addressed the fact that no rent was registered until the 1990s due to owner occupancy by the prior owner—unrebutted. This court addressed all the increases undertaken by petitioner including vacancy increases and the individual apartment improvement increases (IAIs).^[FN2] Rather, it became abundantly clear that respondent was engaging in the{**65 Misc 3d at 421} proverbial "mud against the wall" assertion to overcome his failure to contest rent increases, valid or not, at the time they were taken by the landlord.

This court also noted the failure of respondent to meet his burden regarding his claim of a fraudulent scheme including presenting the court with an unsigned partial lease and no evidence of a familial relationship with the tenant he claims to have succeeded to (or proof that he co-resided with her) to have raised an issue back then of the invalidity of the vacancy increase. Also, as noted above, there was no evidence whatsoever of petitioner attempting to deregulate the subject premises. Renewal is not a second chance for parties because they did not exercise due diligence in making their first presentation (Matter of Setters v AI Props. & Devs. [USA] Corp., 139 AD3d 492 [1st Dept 2016]). As this court noted in its May 9, 2019 decision and order, respondent had the burden to establish his claim or defense (Jacobs v Zurich Ins. Co., 53 AD2d 524 [1st Dept 1976]).

Furthermore, the look back contained within the HSTPA, regarding an overcharge, as the rent six years prior to "the most recent reliable" annual registration statement, would not change [*3]the court's determination either. In the May 9, 2019 decision and order this court recognized that the last reliable registration statement was the most recent year and noted (315 Jefferson LLC v Dominguez, Civ Ct, Kings County, May 9, 2019, slip op at 3) all rent increases since 2010 (more than six years) simply reflect the guideline increases promulgated each year by the Rent Guidelines Board.

A motion for leave to renew must be based upon new facts, not offered on the original application (see Analiese Home Corp. v Mannari, 164 AD3d 727 [2d Dept 2018], citing Rowe v NYCPD, 85 AD3d 1001, 1003 [2011]). Leave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion (Analiese Home Corp., citing Matter of Orange & Rockland Util. v Assessor of Town of Haverstraw, 304 AD2d 668, 669 [2003]). A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the determination, and shall contain reasonable justification for failure to present such facts on the prior motion (see 580-585 Realty, LLC v Keselman, 59 Misc 3d 139[A], 2018 NY Slip Op 50580[U] [App Term, 2d Dept, 2d, 11th &{**65 Misc 3d at 422} 13th Jud Dists 2018]). Here the new law while not only inapplicable to this proceeding, fails to change anything regarding the "facts" previously presented which led to this court's determination.

Accordingly, the order to show cause is denied.