| 246 Leonard Realty, LLC v Phoa |
| 2019 NY Slip Op 51757(U) [65 Misc 3d 145(A)] |
| Decided on October 25, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Collins, Dobkin & Miller, Esq. (Stephen Dobkin of counsel), for appellant. Mizrahi Law Offices, LLC (Robert N. Mizrahi of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Thomas M. Fitzpatrick, J.), entered November 13, 2017. The order, insofar as appealed from, upon reargument, adhered to a prior determination in an order of that court entered
March 24, 2017 denying tenant's motion to dismiss the petition in a holdover summary proceeding.
ORDERED that the order entered November 13, 2017, insofar as appealed from, is reversed, without costs, and, upon reargument, the order entered March 24, 2017 is vacated and tenant's motion to dismiss the petition is granted.
In this holdover proceeding, the petition alleges that tenant's month-to-month tenancy expired and that the premises are not subject to rent regulation "due to the subject premises being updated and a sixth unit being added after 1974."
Tenant moved to dismiss the petition upon the ground that the petition failed to state the necessary facts pursuant to RPAPL 741, in that it failed to allege a valid basis for exemption of the premises from rent stabilization and any ground for eviction, in contravention of Rent Stabilization Code (9 NYCRR) (RSC) § 2524.3. In an order dated March 24, 2017, the Civil Court denied tenant's motion, holding that because the sixth residential unit had been added to the building after 1974, the building is not subject to the ETPA, citing 129 E. 56th St. Corp. v Harrison (122 Misc 2d 799 [App Term, 1st Dept 1984]). Tenant appeals from so much of an [*2]order dated November 13, 2017 as, upon reargument, adhered to the original determination.
It is well settled that once a building is altered to contain six or more residential units, even after 1974, all of the units in the building are brought under rent stabilization (see Matter of Gandler v Halperin, 232 AD2d 637 [1996]; Beverly Holding NY, LLC v Blackwood, 63 Misc 3d 160[A], 2019 NY Slip Op 50877[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Rashid v Cancel, 9 Misc 3d 130[A], 2005 NY Slip Op 51585[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005]; Commercial Hotel v White, 194 Misc 2d 26 [App Term, 2d Dept, 2d & 11th Jud Dists 2002]). Landlord's claim that the "legal" addition of a sixth residential unit or a conversion from a commercial unit to create a sixth residential unit exempts the building from rent stabilization coverage is incorrect (see Matter of Gandler, 232 AD2d 637; Wilson v One Ten Duane St. Realty Co., 123 AD2d 198, 201 [1987] [expressly overruling 129 E. 56th St. Corp.]; Beverly Holding NY, LLC, 60 Misc 3d 160[A], 2019 NY Slip Op 50877[U]).
Given that tenant's unit is subject to rent stabilization, he may be evicted only "upon one of the grounds set forth in section 2524.3 of the Rent Stabilization Code . . . and only after being served with the notices required under section 2524.2 of the code" (Commercial Hotel, 194 Misc 2d at 27). Here, landlord did not set forth any ground under the Rent Stabilization Code for the termination of the tenancy.
Accordingly, the order entered November 13, 2017, insofar as appealed from, is reversed and, upon reargument, the order entered March 24, 2017 is vacated and tenant's motion to dismiss the petition is granted.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.