Matter of 233 E. 5th St., LLC v. Smith

2018 NY Slip Op 4837

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 2018
• Docket: 570253/16 -2255
• Status: Published

Opinion

Matter of 233 E. 5th St., LLC v Smith (2018 NY Slip Op 04837)

Matter of 233 E. 5th St., LLC v Smith

2018 NY Slip Op 04837

Decided on June 28, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 28, 2018
Friedman, J.P., Richter, Mazzarelli, Kapnick, Gesmer, JJ.

570253/16 -2255 6036

[*1] In re 233 E. 5th St., LLC, Petitioner-Respondent,

v

Craig Smith, et al., Respondents-Appellants.

Hogan Lovells US LLP, New York (David R. Michaeli of counsel), for appellants.

Belkin Burden Wenig & Goldman, LLP, New York (Magda L. Cruz of counsel), for respondent.

Order, Appellate Term of the Supreme Court, First Department, entered December 13, 2016, which reversed an order of Civil Court, New York County (Jack Stoller, J.), entered April 5, 2016, denying petitioner and landlord's motion for summary judgment and granting respondents tenants' cross motion for summary judgment dismissing the petition in a holdover proceeding, reinstated the petition, and granted the petitioner's motion for summary judgment of possession, unanimously affirmed, without costs.

The Appellate Term properly found that the vacancy allowance increase of 20% was added to the prior stabilized tenant's legal rent of $1,836, in order to determine that the subject apartment's rent exceeded $2,000, and thus was deregulated. Here, the vacancy by the prior tenant occurred in 2003, after the effective date of the Rent Regulation Reform Act of 1997, and Administrative Code of City of NY §§ 26-511(c)(5-a)(i) and 26-504.2(a) clearly state that the legal regulated rent includes any vacancy allowance (see Altman v 285 W. Fourth LLC,- NY3d -, 2018 NY Slip Op 02829, 2018 NY LEXIS 810 [2018]).

We have considered tenants' remaining arguments and find them unavailing.

M-2255 - 233 E. 5TH St. LLC v Craig Smith

Motion for leave to file supplemental brief denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 28, 2018

CLERK