People's Home Improvement, LLC v. Kindig

People's Home Improvement, LLC v Kindig (2022 NY Slip Op 51350(U)) [*1] People's Home Improvement, LLC v Kindig 2022 NY Slip Op 51350(U) [77 Misc 3d 136(A)] Decided on December 16, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ 2020-274 K C People's Home Improvement, LLC, Appellant, against Kenna Kindig and Karl Kurt Kindig, Respondents. Wenig Saltiel, LLP (Dan M. Blumenthal and Meryl Wenig of counsel), for appellant. Law Office of Ellery Ireland (Ellery Ireland of counsel), for respondents. Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth T. Barany, J.; op 65 Misc 3d 1016 [2019]), dated September 26, 2019. The order, insofar as appealed from, granted the branch of tenants' motion seeking to dismiss the petition in a nonpayment summary proceeding. ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of tenants' motion seeking to dismiss the petition is denied. The April 2019 petition in this nonpayment proceeding alleged, in part, that tenants' apartment was not rent regulated because the building was constructed after 1974. Tenants answered and alleged, among other things, that the apartment is subject to rent regulation. Tenants subsequently moved to, among other things, dismiss the petition pursuant to CPLR 3211 (a) (7), arguing that the petition failed to state a cause of action because landlord provided an incorrect rent regulatory status for the apartment, as the building was constructed in 1931, not after 1974. Landlord opposed the motion, and cross-moved for leave to amend the petition to allege that the apartment was no longer rent regulated due to high rent deregulation. Tenants opposed the cross motion, to which landlord replied. The Civil Court, by order dated September 26, 2019, first granted the cross motion and then, insofar as is relevant to this appeal, granted the branch of tenants' motion seeking to dismiss the petition, finding that "the legislature, in the Rent Act of 2015, did not intend to allow deregulation of a vacant apartment below the [*2]threshold rent, through the vacancy and/or IAI's [individual apartment improvement] increases if the vacancy occurred after the effective date of the Act." At the relevant time applicable to the case at bar, the threshold monthly rent for the application of high rent deregulation to an apartment was $2,700. It is uncontroverted that when the prior tenant vacated the apartment in or about April 2017, the apartment was rent stabilized and the monthly legal regulated rent was $2,229.89. It is also uncontroverted that, after the apartment was vacated, prior to tenants' residency in or about February 2018 at a monthly rent of $3,100, landlord made IAIs and moved perimeter walls of the apartment. Landlord argues that the apartment is no longer rent-stabilized because, post vacancy and before tenants moved into the apartment at a monthly rent of $3,100, it made IAIs and moved perimeter walls of the apartment. We find that since the apartment had a legal regulated rent of more than $2,700 "at any time on or after the effective date of rent act of 2015" which apartment "bec[a]me[] vacant after the effective date of the rent act of 2015," high rent deregulation was allowed pursuant to the Rent Act of 2015 (Rent Stabilization Law [Administrative Code of the City of New York] former § 26-504.2 [a]). Consequently, tenants' argument that the petition is defective for failing to state a cause of action is without merit (see 326 Starr, LLC v Martinez, 74 Misc 3d 77 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Accordingly, the order, insofar as appealed from, is reversed and the branch of tenants' motion seeking to dismiss the petition is denied. ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 16, 2022