Jee-Yung ("Amy") Yang v. Krem Realty, Inc.

2017 NY Slip Op 2024, 148 A.D.3d 1002, 48 N.Y.S.3d 625

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 2017
• Docket: 2015-11247
• Status: Published

Opinion

In an action to recover damages for rent overcharges, the defendant appeals from an order of the Supreme Court, Kings County (Ash, J.), dated October 7, 2015, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff tenant commenced this action in 2010 to recover damages for rent overcharges since the beginning of her tenancy in May 2007. She alleged, inter alia, that the defendant landlord had improperly imposed a $175 increase on the monthly rent on the basis of individual apartment improvements (hereinafter IAIs) (see 9 NYCRR 2522.4 [a] [1]; Matter of Rockaway One Co., LLC v Wiggins, 35 AD3d 36, 40 [2006]) that it claimed to have made to her apartment before the commencement of her tenancy. In 2015, the defendant moved for summary judgment dismissing the complaint. The Supreme Court denied the defendant’s motion, and the defendant appeals.

The defendant failed to establish, prima facie, that it was entitled to an increase in the rent based on IAIs it made to the plaintiff’s apartment. The defendant failed to submit evidence sufficient to establish, prima facie, that it made the claimed IAIs or, if so, their cost. Inasmuch as the defendant failed to establish its prima facie entitlement to judgment as a matter of law (see Giantomaso v T. Weiss Realty Corp., 142 AD3d 950, 951 [2016]), its motion was properly denied without regard to the sufficiency of the evidence submitted in opposition (see Pitt v Mroz, 146 AD3d 913, 914 [2017]).

Mastro, J.R, Balkin, Cohen and Brathwaite Nelson, JJ., concur.