Matter of Fried v. Lopez

Opinion

Matter of Fried v Lopez

2026 NY Slip Op 05185

September 2, 2026

Appellate Division, Second Department

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

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

In the Matter of Joel Fried, petitioner-respondent,

v

Isabel Lopez, et al., appellants, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 2, 2026

2023-00708, (Index No. 66333/18)

Angela G. Iannacci, J.P.

William G. Ford

Carl J. Landicino

Susan Quirk, JJ.

Communities Resist, Inc., Brooklyn, NY (Adam Meyers of counsel), for appellants.

Wenig Saltiel LLP, New York, NY (Meryl L. Wenig and Dan M. Blumenthal of counsel), for petitioner-respondent.

[*1]

DECISION & ORDER

In a summary holdover proceeding, Isabel Lopez and Raul Lopez appeal, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts dated May 20, 2022. The order reversed an order of the Civil Court of the City of New York, Kings County (David A. Harris, J.), dated July 31, 2019, granting the motion of Isabel Lopez and Raul Lopez to dismiss the petition insofar as asserted against them, and thereupon denied the motion and remitted the matter to the Civil Court of the City of New York, Kings County, for further proceedings.

ORDERED that the order dated May 20, 2022, is reversed, on the law, with costs, and the order dated July 31, 2019, is affirmed.

In this proceeding, the petitioner (hereinafter the landlord) sought to evict Isabel Lopez and Raul Lopez (hereinafter the tenants), tenants of one unit in a six-unit apartment building (hereinafter the building), based on the "personal use" exception to applicable rent regulations (Administrative Code of the City of New York former § 26-511[c][9][b]). In a companion proceeding, the landlord sought to evict the tenant of another unit in the building so as to combine all of the units in the building allegedly for his personal use and/or for the use of his family members.

During the pendency of this proceeding, the Legislature enacted the Housing Stability and Tenant Protection Act of 2019 (HSTPA) (L 2019, ch 36). As relevant here, Part I of HSTPA restricted the ability of a landlord of a rent-regulated building to recover units for personal use (see Matter of Karpen v Andrade, 242 AD3d 1, 4). Pursuant to an amended provision of the Rent Stabilization Law of 1969, a landlord may, under some circumstances, recover only one unit for personal or family use as a primary residence and must demonstrate an "immediate and compelling necessity" for that action (hereinafter the amendments) (Administrative Code § 26-511[c][9][b]). Part I of HSTPA, section 5, provides, "[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" (L 2019, ch 36, Part I, § 5).

After the enactment of HSTPA, the tenants moved to dismiss the petition insofar as [*2]asserted against them for failure to state a cause of action. In an order dated July 21, 2019 (hereinafter the July 2019 order), the Civil Court granted the motion, and the landlord appealed to the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts. In an order dated May 20, 2022 (hereinafter the May 2022 order), the Appellate Term reversed the July 2019 order, denied the motion, and remitted the matter to the Civil Court for further proceedings (see Fried v Lopez, 75 Misc 3d 133[A], 2022 NY Slip Op 50453[U] [App Term, 2d Dept, 2d, 11th & 13th Jud. Dists.]). The tenants appeal to this Court, by permission, from the May 2022 order.

As the tenants correctly contend, pursuant to Part I of HSTPA, section 5, the amendments are applicable to proceedings that were pending on the date of the enactment of HSTPA, where, as here, the landlord had not obtained a judgment of possession as of that date (see L 2019, ch 36, Part I, § 5; Matter of Karpen v Andrade, 242 AD3d at 7).

Furthermore, here, application of the amendments has no potentially problematic retroactive effect (see Matter of Karpen v Andrade, 242 AD3d at 7). Specifically, the application of the amendments under these circumstances does not expand the scope of the petitioner's liability based on prior conduct or impair other rights the petitioner possessed in the past (see id. at 6-7; Matter of 4040 BA LLC v New York State Div. of Hous. & Community Renewal, 221 AD3d 440, 440-441; cf. Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 337; Matter of Harris v Israel, 191 AD3d 468). When HSTPA was enacted, the landlord had no vested right to recover any units in the building for his personal use (see Matter of IG Second Generation Partners LP v New York State Div. of Hous. & Community Renewal, 10 NY3d 474, 482; Matter of Karpen v Andrade, 242 AD3d at 6-7; Matter of 4040 BA LLC v New York State Div. of Hous. & Community Renewal, 221 AD3d at 440-441; 300 Wadsworth LLC v New York State Div. of Hous. & Community Renewal, 210 AD3d 454; Matter of Schutt v New York State Div. of Hous. & Community Renewal, 278 AD2d 58, 58).

Since under the amendments the landlord is not entitled to the relief sought in the petition, the tenants were entitled to dismissal of the petition insofar as asserted against them (see Matter of Karpen v Andrade, 242 AD3d at 7).

In light of our determination, this Court need not reach the parties' remaining contention.

IANNACCI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.

2023-00708 DECISION & ORDER ON MOTION

In the Matter of Joel Fried, petitioner-respondent,

v Isabel Lopez, et al., appellants, et al., respondents.

(Index No. 66333/18)

Appeal, by permission, from an order of the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts, dated May 20, 2022, which determined an appeal from an order of the Civil Court of the City of New York, Kings County, dated July 31, 2019. Motion by the petitioner-respondent to dismiss the appeal on the ground that the right of direct appeal from the order dated May 20, 2022, terminated upon entry in the above-entitled proceeding of a judgment of the Civil Court of the City of New York, Kings County, dated May 24, 2023. By decision and order of this Court, dated November 22, 2024, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is denied.

IANNACCI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court