24-25 27th St., LLC v. Zaman

24-25 27th St., LLC v Zaman (2020 NY Slip Op 51547(U)) [*1] 24-25 27th St., LLC v Zaman 2020 NY Slip Op 51547(U) [70 Misc 3d 131(A)] Decided on December 23, 2020 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on December 23, 2020 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ 2018-1477 Q C 24-25 27th Street, LLC, Respondent, against Syed A. Zaman, Appellant, John Doe and Jane Doe, Undertenants. Anderson, Bowman & Zalewski, PLLC (Matthew J. Routh of counsel), for appellant. Hertz, Cherson & Rosenthal, P.C. (David I. Paul of counsel), for respondent. Appeal from a final judgment of the Civil Court of the City of New York, Queens County (John S. Lansden, J.), entered March 20, 2018. The final judgment, after a nonjury trial, awarded landlord possession and dismissed tenant's counterclaims in a holdover summary proceeding. ORDERED that the final judgment is reversed, without costs, the petition is dismissed, the counterclaim seeking to recover for rent overcharge is reinstated and the matter is remitted to the Civil Court for all further proceedings on that counterclaim. In this holdover proceeding, the petition alleges that the apartment at issue is not subject to rent stabilization because it had been deregulated by high-rent vacancy deregulation. In his answer, insofar as is relevant to this appeal, tenant asserted that the apartment is subject to rent stabilization and counterclaimed to recover for rent overcharge and for an order directing landlord to provide a rent-stabilized lease. Tenant claims that the legal regulated rent surpassed the high-rent vacancy threshold in effect at the relevant time (see Rent Stabilization Law of 1969 [RSL] [Administrative Code of City of NY] former § 26-504.2 [a]) only because, between 1996 and 2001, the former landlord created a series of fake tenancies and fraudulently applied a vacancy increase for each such fictitious new tenancy. After considering the testimony and evidence submitted at trial, the Civil Court found that the apartment was not unlawfully deregulated. The court dismissed tenant's counterclaims and awarded landlord possession. In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility [*2](see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116, 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). Upon a review of the record, we find that the apartment was unlawfully deregulated. The basis for the deregulation was a series of vacancy increases the former landlord allegedly imposed every year between 1996 and 2001. However, there is ample testimony and documentary evidence that supports tenant's claim that tenant's brother-in-law, Syed Nazmul Hassan, resided in the apartment from 1992 to 2014. Moreover, Hassan testified that he does not know any of the six individuals that landlord, in effect, claims were the tenants of record of the former landlord from 1996 to 2001, and that none of them resided in the subject apartment during the relevant years. Since the trial evidence shows that the subject apartment was improperly removed from rent stabilization, the petition, which alleged that the subject apartment is not subject to rent stabilization because it had been high-rent deregulated, must be dismissed. We remit the matter to the Civil Court to decide tenant's counterclaim for rent overcharge. We do not reinstate tenant's counterclaim for an order directing landlord to provide a rent-stabilized lease, as the Civil Court lacks jurisdiction to grant such injunctive relief (see North Waterside Redevelopment Co. v Febbraro, 256 AD2d 261 [1998]; 133 Plus 24 Sanford Ave. Realty Corp. v Xiu Lan Ni, 47 Misc 3d 55 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Accordingly, the final judgment is reversed, the petition is dismissed, the counterclaim seeking to recover for rent overcharge is reinstated and the matter is remitted to the Civil Court for all further proceedings on that counterclaim. ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 23, 2020