Joel Fried, Petitioner, v  Carmen Galindo et al., Respondents.

Civil Court of the City of New York, Kings County, November 24, 2021

Wenig Saltiel LLP, Brooklyn, for petitioner in the first and second above-entitled proceedings.

Communities Resist, Inc., Brooklyn, for respondents in the first and second above-entitled proceedings.

The decision and order on petitioner's motion for renewal is as follows:

Petitioner commenced these summary proceedings seeking to recover possession of two apartments located at 374 Wallabout Street, in Brooklyn (building). In two substantively identical decision/orders, each dated July 31, 2019, this court dismissed these "owner's use" holdover proceedings (Fried v Lopez, 64 Misc 3d 1025 [Civ Ct, Kings County 2019]; Fried v Galindo, 2019 NY Slip Op 34272[U] [Civ Ct, Kings County {**73 Misc 3d at 1086}2019]). Thereafter, the court, in a decision and order consolidating for disposition motions made in both proceedings, denied reargument (Fried v Lopez, 66 Misc 3d 1210[A], 2020 NY Slip Op 50048[U] [Civ Ct, Kings County 2020]). Petitioner now moves for renewal of his motions to dismiss, urging that the opinion in Matter of Harris v Israel (191 AD3d 468 [1st Dept 2021], lv dismissed 37 NY3d 1011 [2021]) mandates that the court grant renewal, and upon renewal, vacate the dismissal of both proceedings.

In May 2018, petitioner commenced these proceedings to recover possession of the only apartments subject to tenancies in the building, a six unit multiple dwelling, with the stated intention "to convert the multiunit building into a single family dwelling for himself and his family as their primary residence." In August 2018, a fire occurred, resulting in the issuance of a vacate order by the New York City Department of Housing Preservation and Development; the order became effective on September 13, 2018, and remains in force more than three years later.

While these proceedings remained pending pretrial, the Housing Stability and Tenant Protection Act of 2019 (HSTPA) (L 2019, ch 36) was enacted. Immediately upon its passage, respondents moved for dismissal. The HSTPA limited the recovery of apartments for the owner's use to situations in which the owner "seeks to recover possession of one dwelling unit because of immediate and compelling necessity for his or her own personal use and occupancy as his or her primary residence . . . provided however, that this subparagraph shall permit recovery of only one dwelling unit" (Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-511 [c] [9] [b], as amended by HSTPA, § 1, part I, § 2).

By order and judgment dated December 19, 2019, an RPAPL article 7-A administrator was appointed for the building (Matter of Lopez, Civ Ct, Kings County, Dec. 19, 2019, Smith, J., index No. HP 563/19, order and judgment). The order provides that

"[t]he owner, the managing agent, any person acting under authority from the owner or managing agent, and any other person who does not have authorization from the Administrator are hereby enjoined and restrained from (i) entering the Premises without the prior knowledge and consent of the Administrator, (ii) interfering in any way{**73 Misc 3d at 1087} with the Administrator's management, operation and control of the Premises, (iii) making any attempts to collect rents from the tenants of the Premises, (iv) accepting rents from the tenants of the Premises, or (v) harassing the tenants or the administrator in any way" (id. ¶ 13).

In seeking renewal, petitioner urges that the Appellate Division reversal of the Appellate Term (Harris v Israel, 65 Misc 3d 155[A], 2019 NY Slip Op 51925[U] [App Term, 1st Dept 2019]) requires that renewal be granted. Specifically, petitioner asserts that Harris represents an unequivocal determination that part I of the HSTPA, addressing "owner's use" proceedings, cannot be applied retroactively to impose its requirements in this proceeding and that the law in effect when this proceeding was commenced instead governs.

Respondents, in opposition, argue that petitioner lacks standing to seek this relief, in light of the order appointing a 7-A administrator for the building. Respondents further argue that petitioner's motion for renewal is untimely. Respondents note that petitioner's time to perfect his appeal expired on June 30, 2020, having been extended by order, and that the time to make this motion concluded with the expiration of the time to appeal (see Dinallo v DAL Elec., 60 AD3d 620, 621 [2d Dept 2009] ["a motion for leave to renew based upon a change in the law must be made prior to the entry of a final judgment or before the time to appeal has expired"]). The instant motion, however, is not untimely under this analysis, as the notice of motion is dated May 27, 2021, and it was posted to the New York State Courts Electronic Filing System (NYSCEF) the following day, well within the now-lapsed time to take an appeal.

Respondents' further arguments as to timeliness, that petitioner waited 13 months after the opinion in Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal (35 NY3d 332 [2020]) to make the instant motion, are also unavailing. Regina Metro. addressed overcharge claims rather than owner's use proceedings. It is the decision in Harris v Israel that applied the rationale of Regina Metro. in the context of owner's use proceedings that has triggered petitioner's perception of a path to renewal. The court does not find that petitioner's motion, made within several months of the issuance of Harris, is untimely.

Respondents further argue that, because a 7-A administrator has been appointed for the building, petitioner lacks standing{**73 Misc 3d at 1088} to make this motion and seek the restoration of these proceedings to the calendar.

[1] The order appointing a 7-A administrator for the building unequivocally enjoins petitioner, absent authorization from the 7-A administrator, from "interfering in any way with the Administrator's management, operation and control of the Premises." By this motion, petitioner seeks to restore to the calendar two proceedings to recover for personal use two apartments that are presently within the control of the administrator pursuant to the order of appointment. Moreover, they are the only apartments in the building subject to tenancies. If petitioner were to prevail in the instant proceedings, petitioner would have recovered the only two potentially rent-generating apartments in a building that the administrator is charged to repair using revenues generated by rent. Petitioner has neither asserted nor established that he has authorization from the administrator to proceed. The building and subject apartments remain under the control of the administrator and an order enjoins petitioner from interfering in any way with the administrator's control of the building; these circumstances mandate that petitioner's motions seeking to restore and reinvigorate these dismissed owner's use proceedings be denied. Petitioner's attempt to restore these proceedings despite the mandates of the order appointing the administrator is in direct contravention of the terms of the order and judgment issued in the 7-A proceeding, and verges on frivolous conduct. Accordingly, a copy of this decision and order will be forwarded to the judge presiding over the 7-A proceeding.

Even absent petitioner's lack of capacity to bring the instant motions based on the prohibitions of the order appointing a 7-A administrator, petitioner's motion would be unavailing. [*2]The implementing provisions of the HSTPA state that

"[t]his act shall take effect immediately and shall apply to any tenant in possession at or after the time it takes effect, regardless of whether the landlord's application for an order, refusal to renew a lease or refusal to extend or renew a tenancy took place before this act shall have taken effect" (HSTPA, § 1, part I, § 5).

The implementing provision is analogous to that considered in Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal (35 NY3d 332 [2020], rearg denied sub nom. Raden v W7879, LLC, 35 NY3d 1079 [2020],{**73 Misc 3d at 1089} rearg denied sub nom. Taylor v 72A Realty Assoc., L.P., 35 NY3d 1081 [2020]).

In Harris, the Court recognized that Regina Metro. held that provisions of the HSTPA altering the law relating to rent overcharge could not be applied to pending proceedings because "application of these amendments to past conduct would not comport with our retroactivity jurisprudence or the requirements of due process" (Regina Metro. at 349). Analogizing, the Court then determined:

"We conclude that the same reasoning applies with equal measure to HSTPA part I. Like the amendment in Regina Metro, this amendment 'impair[s] rights owners possessed in the past, increasing their liability for past conduct and imposing new duties with respect to transactions already completed' (id. at 369). Therefore, a presumption against retroactivity applies (id. at 370). The pre-Regina Metro cases notwithstanding, the determination of the Court of Appeals that an owner's increased liability and the disruption of relied-upon repose are impairments to his or her substantive rights precludes any retroactive application of HSTPA part I to this proceeding, where petitioner had spent several years reclaiming all other units at the property and was ultimately awarded a judgment of possession to the premises before HSTPA's enactment (id. at 379)" (Matter of Harris v Israel, 191 AD3d 468, 470 [1st Dept 2021], lv dismissed 37 NY3d 1011 [2021]).

[2] In Harris, however, the Court is not enunciating a blanket rule. If it were simply determining that, notwithstanding the statutory language, the provisions of the HSTPA governing owner's use could only be applied prospectively, there would have been no reason for the Court to cite any factors to support prospective application, such as the years spent reclaiming other units and the fact that petitioner had already recovered a judgment for the apartment that was the subject of the proceeding when the HSTPA was enacted. With all but one apartment recovered and a judgment for possession of the last apartment in the building, the petitioner in Harris had only to obtain and execute a warrant of eviction to bring years of expense and effort to recover all apartments in the building to a conclusion.

In marked contrast, petitioner here was in the early stages of litigation to recover every apartment in the building that{**73 Misc 3d at 1090} was subject to a tenancy. No judgments had been issued. No trials had been commenced. The fire and resultant vacate order had occurred prior to trial. Petitioner asserts that the motions to dismiss were made "to derail the settled expectations of petitioner" and that "[o]f course, had petitioner been entitled to his day in court, a judgment of possession would likely have issued." There is an apparent incongruity in equating what petitioner characterizes as a "likely" outcome with "settled expectation." In fact, the only settled expectation that petitioner could reasonably have held is one of protracted and potentially acrimonious litigation. For petitioner to opine that a judgment in petitioner's favor would likely [*3]have issued is, at best, conjecture.

The starkly differing factual scenario in Harris, cited by the Court, guided its analysis, and led the Court to conclude that retroactive application of the amendments "to this proceeding" (Harris, 191 AD3d at 470) was impermissible. The holding of Harris would not, were the issue properly before the court, mandate renewal and the reinstatement of these proceedings (see Karpen v Castro, 72 Misc 3d 852 [Civ Ct, Kings County 2021]).

Petitioner's motion is in all respects denied.