Judith Grunbaum, Petitioner, v  Sundeep Singh Suchdev, Respondent.

Judith Grunbaum, Petitioner, v  Yashna Maya Padamsee, Respondent.

Judith Grunbaum, Petitioner, v  Heidi Fritzie Bumby Chua, Respondent.

Judith Grunbaum, Petitioner, v  Jacob Hodes, Respondent.

Judith Grunbaum, Petitioner, v  Lucas Shapiro, Respondent.

Civil Court of the City of New York, Kings County, December 28, 2021

Jonathan Schreier for petitioner.

Jasmin Crowder and George Gardner III for respondents.

The decision and order on this motion are as follows:

Judith Grunbaum, the petitioner in these proceedings, commenced these holdover proceedings against the various respondents in these proceedings, seeking possession of various units at 70 South Elliott Place, Brooklyn, New York (the subject premises) for personal use. Petitioner previously moved to discontinue these proceedings without prejudice. The court ruled on petitioner's motions, by an order dated June 10, 2020 (the order), by marking the proceedings discontinued with prejudice. Petitioner now moves to renew and, upon renewal, to vacate the discontinuance and to restore the matters to the calendar. Respondents cross-move to dismiss two of the proceedings. The court resolves all of these motions by this order.

The subject premises are subject to the Rent Stabilization Law. Prior to June 24, 2019, Rent Stabilization Law of 1969 (Administrative Code of City of NY) § 26-511 (c) (9) (b) (the Old Statute) permitted an owner to refuse renewal leases to rent-stabilized tenants and to recover possession of "one or more" stabilized dwelling units for the personal use and occupancy of the owner or of a member of the owner's immediate family. The effect of this statute was to permit an owner of a rent-stabilized{**74 Misc 3d at 326} building to obtain possession of every single unit thereof. (Pultz v Economakis, 10 NY3d 542, 548 [2008].) Petitioner commenced these six proceedings for this purpose prior to June 24, 2019. As of June 24, 2019, these proceedings were pending and had not yet gone to trial.

On June 24, 2019, the Governor signed into law the Housing Stability and Tenant Protection Act (HSTPA). As is relevant to this proceeding, HSTPA amended the Old Statute to only permit recovery of one unit in a building and to require that an owner show an "immediate and compelling necessity" to recover that unit. (L 2019, ch 36, § 1, part I, § 2 [the New Statute].) HSTPA made the New Statute effective "immediately" and provided that the New Statute "shall apply to any tenant in possession at or after the time [the New Statute] 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 [the New Statute] shall have taken effect." (L 2019, ch 36, § 1, part I, § 5 [section 5].)

After the enactment of the New Statute, respondents moved to dismiss these proceedings, given that petitioner sought to recover more than one unit at the subject premises and that petitioner did not plead the new standard of "immediate and compelling necessity." Petitioner cross-moved for leave to discontinue the proceedings, albeit without prejudice given pending litigation at the time as to the constitutionality of the New Statute.^[FN*] By the order, the court granted petitioner's cross motion "to the extent that the proceedings shall be deemed discontinued with prejudice to the predicate notice" and denied respondents' motions to dismiss as moot.

By an order entered on February 9, 2021, the First Department of the Appellate Division adjudicated the applicability of the New Statute to a proceeding pending at the Appellate Term at the time of its enactment, after an owner prevailed at trial according to standards set by the Old Statute. (Matter of Harris v Israel, 191 AD3d 468, 470 [1st Dept 2021], lv dismissed 37 NY3d 1011 [2021].) Citing the Court of Appeals holding in Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal (35 NY3d 332 [2020]), that a retroactive{**74 Misc 3d at 327} application of a different section of HSTPA regarding the calculation of rent overcharges violated due process, the Court held:

"[The New Statute] 'impair[s] rights owners possessed in the past, increasing their liability for past conduct and imposing new duties with respect to transactions already completed' . . . . Therefore, a presumption against retroactivity applies . . . . The [Regina Metro determination] 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 [the New Statute] 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 . . . . '[T]here is no indication here that the legislature considered th[is] harsh and destabilizing effect on [the petitioner's] settled expectations, much less had a rational justification for that result.' " (Harris, 191 AD3d at 470.)

Petitioner argues that Harris constitutes a change in the law that compels a vacatur of the order. (Dinallo v DAL Elec., 60 AD3d 620 [2d Dept 2009] [a change in decisional law is sufficient to show a change of law for purposes of a motion to renew].) While petitioner supports her motion with an affidavit, the affidavit does not include facts of the kind the Court cited in Harris. More importantly, petitioner did not attach the prior motion papers to her renewal motion, as required. (Biscone v JetBlue Airways Corp., 103 AD3d 158, 178 [2d Dept 2012]; Stardial Communications Corp. v City of New York, 2011 NY Slip Op 32520[U] [Sup Ct, NY County 2011]; All Am. Moving & Stor., Inc. v Andrews, 31 Misc 3d 1214[A], 2011 NY Slip Op 50668[U] [Sup Ct, Bronx County 2011].) Rules surrounding motions to renew are flexible and the court, in its discretion, may grant renewal, in the interest of justice so as not to defeat substantive fairness (Matter of Pasanella v Quinn, 126 AD3d 504, 505 [1st Dept 2015]; Hines v New York City Tr. Auth., 112 AD3d 528 [1st Dept 2013]; Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460, 461 [1st Dept 2007]; Mejia v Nanni, 307 AD2d 870, 871 [1st Dept 2003]), despite a failure to satisfy the rigorous requirements of a motion to renew. (Solomon Holding Corp. v Stephenson, 118 AD3d 613, 614 [1st Dept 2014]; see e.g. Dorian v City of New York, 129 AD3d 445 [1st Dept 2015].){**74 Misc 3d at 328} Be that as it may, in the absence of some factual presentation showing that the effect of the New Statute to petitioner would be unconstitutional as applied to her, petitioner would only prevail on her motion if she can show that section 5 is unconstitutional on its face.

A finding that a statute is facially unconstitutional means that, regardless of the facts of the case before it, the court must find the statute incapable of any valid application. (Washington State Grange v Washington State Republican Party, 552 US 442, 448-450 [2008]; Copeland v Vance, 893 F3d 101, 110 [2d Cir 2018], cert denied 587 US —, 139 S Ct 2714 [2019]; Amazon.com, LLC v New York State Dept. of Taxation & Fin., 81 AD3d 183, 194 [1st Dept 2010], affd sub nom. Overstock.com, Inc. v New York State Dept. of Taxation & Fin., 20 NY3d 586, 597 [2013], cert denied sub nom. Amazon.com LLC v New York State Dept. of Taxation & Fin., 571 US 1071 [2013]; People v Stuart, 100 NY2d 412, 421 [2003]; Matter of State of New York v Spencer D., 96 AD3d 768, 769-770 [2d Dept 2012].) Courts do not favor facial challenges to statutes (Washington State Grange, 552 US at 450-451; Copeland, 893 F3d at 111; People v Taylor, 9 NY3d 129, 150 [2007]; State of New York, 96 AD3d at 769-770; Amazon.com, LLC, 81 AD3d at 194), as courts should not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. (Washington State Grange, 552 US at 450-451.) Accordingly, the first task of a court adjudicating a constitutional challenge to a statute is to determine if the statute is unconstitutional as applied to the litigant before it. (Taylor, 9 NY3d at 150.)

Harris precluded any retroactive application of the New Statute—occasioned by section 5—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 [the New Statute's] enactment." (Harris, 191 AD3d at 470.) The decision goes on to reference the appellant personally, to wit, "th[is] harsh and destabilizing effect on [the petitioner's] settled expectations." (Id.) The proposition disfavoring facial challenges militates against a construction of Harris that Harris sub rosa found section 5 unconstitutional on its face, particularly while supporting its decision with facts specific to the case before it. A court's finding that a statute might operate unconstitutionally under some conceivable set of circumstances does not render the statute wholly invalid. (United States v Salerno, 481 US 739, 744-745 [1987].){**74 Misc 3d at 329}

The significance of the judgment of possession that the petitioner in Harris obtained is that a final judgment terminates a summary proceeding. (728 Fulton St., LLC v Lashley, 73 Misc 3d 139[A], 2021 NY Slip Op 51173[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021].) By contrast, petitioner had not obtained a final judgment in this proceeding at the time of the enactment of the New Statute, so this proceeding was still pending as of the enactment. Where a statute has been amended during the pendency of a proceeding, the application of that amended statute to that pending proceeding is appropriate and poses no constitutional problem. (Matter of St. Vincent's Hosp. & Med. Ctr. of N.Y. v New York State Div. of Hous. & Community Renewal, 109 AD2d 711, 712 [1st Dept 1985], affd for reasons stated 66 NY2d 959, 961 [1985]; Matter of Mountbatten Equities v New York State Div. of Hous. & Community Renewal, 226 AD2d 128, 129 [1st Dept 1996]; Matter of Kass v Club Mart of Am., 160 AD2d 1148, 1150 [3d Dept 1990]; Jonathan Woodner Co. v Eimicke, 160 AD2d 907, 908 [2d Dept 1990].) A holding that section 5 is unconstitutional as it applied to an owner who had obtained a judgment before the enactment of the New Statute therefore does not necessarily mandate the same result for an owner who had not obtained a judgment as such. (Building & Realty Inst. of Westchester & Putnam Counties, Inc. v New York, 2021 WL 4198332, *20, 2021 US Dist LEXIS 174535, *69 [SD NY, Sept. 14, 2021, No. 19-CV-11285 (KMK), No. 20-CV-634 (KMK)]; Fried v Lopez, 73 Misc 3d 1084, 1084 [Civ Ct, Kings County 2021]; Karpen v Castro, 72 Misc 3d 852, 855 [Civ Ct, Kings County 2021].)

Harris also made reference to the several years the petitioner therein spent reclaiming other units at the property to underscore the extent to which section 5 would destabilize his expectations. Petitioner has not made a similar showing here. Legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations even though the effect of the legislation is to impose a new duty or liability based on past acts. (Concrete Pipe & Products of Cal., Inc. v Construction Laborers Pension Trust for Southern Cal., 508 US 602, 644-648 [1993].) After all, an entirely prospective change in the law may disturb the relied-upon expectations of individuals, but such a change does not violate due process. (United States v Carlton, 512 US 26, 30-32 [1994].)

In the absence, then, of facts comparable to those that the Court in Harris found particularly compelling, to wit, an owner{**74 Misc 3d at 330} who had acquired possession of all units in a building [*3]save for one unit that an owner had obtained a final judgment of possession against after a full trial—all before the enactment of the New Statute—petitioner does not show that the New Statute is unconstitutional as applied to her. Accordingly, it is ordered that the court denies petitioner's motion, without prejudice to petitioner's appeal of the order, and it is ordered the court denies respondents' cross motions as moot.