Dixon v 105 W. 75th St. LLC 2015 NY Slip Op 30529(U) April 13, 2015 Supreme Court, New York County Docket Number: /2014 Judge: Manuel J.

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1 Dixon v 15 W. 75th St. LLC 215 NY Slip Op 3529(U) April 13, 215 Supreme Court, Ne York County Docket Number: /214 Judge: Manuel J. Mdez Cases posted ith a "3" idtifier, i.e., 213 NY Slip Op 31(U), are republished from various state and local governmt ebsites. These include the Ne York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

2 [* FILED: 1] NEW YORK COUNTY CLERK 4/13/215 1:36 AM INDEX NO /214 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 4/13/215 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: MANUEL J. MENDEZ Justice PART--'1""""3'"--_ BENJAMIN DIXON, -against- Plaintiffs. INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO / z <( <.!> z (J - ~~...a :::>......, LL I- c J: l- ~ LL > :::> LL 1- (J c.. <( (J -z ~ :::! 15 WEST 75TH STREET LLC, NUNZIO RUGGIERO, RUGGIERO REAL TY MANAGEMENT CORP., ANGELA RUGGIERO, GINA PATE and DIME SAVINGS BANK OF WILLIAMSBURGH, Defdants. The folloing papers, numbered 1 to_ _ ere read on this motion to dismiss. Notice of Motion/ Order to Sho Cause - Affidavits - Exhibits... D Yes X No PAPERS NUMBERED Upon a reading of the foregoing cited papers, it is ordered that this motion to dismiss the Complaint as against the moving defdants is granted. This is an action for a declaratory judgmt, injunctive relief, lease reformation, rt overcharge, fraud and attorney's fees. Bjamin Dixon rted apartmt 5B (herein "apartmt") at 15 West 75th Street, Ne York, N.Y. (herein "Building") from defdants 15 West 75th Street LLC, Nunzio Ruggiero, Ruggiero Realty Managemt Corp., Angela Ruggiero and Gina Pate (herein "Moving Defdants") pursuant to a lease dated April 4, 213 (herein "Lease"). The Lease as for a one year term and a monthly rtal amount of $3,2. Prior to rting the Apartmt to plaintiff, the Moving Defdants rted the Apartmt to Melly Garcia pursuant to a to-year rt stabilized lease in August Garcia reed the lease sev times, and vacated the Apartmt in July 22, and the Apartmt remained vacant throughout 23. The adjoining apartmt also became vacant in September 23. The Moving Defdants decided to make an addition to both the Apartmt and the adjoining apartmt thereby making both apartmts duplex apartmts. The Moving Defdants obtained the necessary ork permits and retained a geral contractor and plumber to perform the necessary ork. The ork as completed in the Spring of 24 and cost the Moving Defdants approximately $2, to complete. The Moving Defdants th rted the Apartmt for fair market value in May 24. A ne Certificate of Occupancy (herein "C of ") as issued by the Ne York City Departmt of Buildings (herein "DOB") on May 2, 27, but the ne C of O incorrectly listed that the Building had nine (9) residtial units instead of t ( 1) units as the

3 [* 2] Building had alays contained t (1) units. After submitting the necessary papers to the DOB, the DOB issued a ne C of on November 3, 214. The Moving Defdants failed to file an exit registration ith the Ne York State Division of Housing and Community Real (herein "DHCR") indicating that the Apartmt as no longer subject to rt stabilization. On August 14, 214, the Moving Defdants filed an Annual Apartmt Registration Form ith the DHCR for the year 25 indicating that the Apartmt had be rted at fair market value from May 21, 24 through May 31, 25. The Moving Defdants stated on the Registration Form that they conducted Major Capital Improvemts (herein "MCI") on the Apartmt and that the Apartmt as a "ne duplex apartmt" due to a pthouse and terrace being "added to the apartmt making it a ne duplex apartmt ith terrace titling oner to a first rt" (see Moving Papers, Exhibit P). Dixon alleges that the Apartmt is still governed by the rt stabilization las due to the 27 error in the DOB C of and the Moving Defdants' failure to properly file the necessary paperork ith the DHCR, thereby removing the Apartmt from rt stabilization regulations. Dixon seeks the differce bete the fair market value rt and the rt stabilized rt from the commcemt of the Lease, treble damages, legal fees and costs, that the Apartmt be declared rt stabilized and that the Lease be reformed to reflect the rt stabilized monthly rt of $1, The Moving Defdants move, pre-anser, pursuant to CPLR 3211(a)(1) to dismiss the complaint based on a defse founded upon documtary evidce. In support, the Moving Defdants annex the Lease; the Garcia lease and lease reals; the DHCR Annual Apartmt Registration Forms from 1993 through 23; a report from the DHCR listing the Apartmt as vacant from 25 through 214; the architectural draings for the proposed addition to the Apartmt approved by the Landmark Preservation Commission; the ork permit issued by the DOB; the invoices paid by the Moving Defdants to the geral contractor and plumber along ith cancelled checks reflecting said paymts; the 27 and 214 C of O's issued by the DOB; the "No Work" ork permit issued by the DOB in 214 shoing the proposed correction of the C of to reflect t (1) apartmts along ith the corrected C of ; and the 214 late filing of the DHCR Annual Apartmt Registration Form for the year 25. In order to dismiss an action on documtary evidce, the documtary evidce must unequivocally contradict plaintiff's factual allegations and conclusively establish a defse as a matter of la, resolve all factual issues and conclusively dispose of plaintiff's claim (Gosh v. Mutual Life Insurance Company of Ne York, 98 N.Y.2d 314, 774 N.E.2d 119, 746 N.Y.S.2d 858[22); 511West232"d Oners Corp., v. Jnifer Realty Co., 98 N.Y.2d 144, 773 N.E.2d 496, 746 N.Y.S.2d 131 [22J;Fortis Financial Services v. Fimat Futures USA, 29 A.D.2d 383, 737 N.Y.S.2d 4 [1st. Dept. 22)). "[W]here an oner substantially alters the outer dimsions of a vacant housing accommodation, hich qualifies for a first rt equal to or exceeding the applicable amount qualifying for deregulation, as provided in this subdivision, exemption pursuant to this subdivision shall apply" (see Section (r)(1) of Rt Stabilization Code). A housing

4 [* 3] accommodation that becomes vacant on or after June 19, 1997 but before June 24, 211, ith a legal regulated rt of $2, or more per month is no longer regulated under the Rt Stabilization Code (see Section [r][4]). An exemption applies regardless of hether the next tant in occupancy or any subsequt tant in occupancy is charged or pays less than the applicable amount qualifying for deregulation (see Section [r][6]). Section (a)( 1) titles the oner to a rt increase due to an increase in delling space or improvemts to the delling. Const of the tant shall not be required here the subject housing accommodation is vacant. Subdivision (4) states that "[p]rior to September 24, 211, the increase in the monthly stabilization rt for the affected housing accommodations h authorized pursuant to paragraph (1) of this subdivision shall be 1 /4 th of the total cost, including installation but excluding finance charges. The documtary evidce annexed by the Moving Defdants utterly refute the assertions made by Dixon in the Complaint. The Moving Defdants have shon that the Apartmt as vacant prior to the rovations, and as a nely created duplex apartmt hich did not previously exist. The C of prior to the ork being conducted shos that no roof-top livable space existed, nor as there a duplex apartmt. The DOB ork permits and subsequt C of O's sho that the Moving Defdants created additional livable space. This nely created Apartmt titled the Moving Defdants to "first rt" ithout rt stabilization restrictions. Further, the invoices and cancelled checks made payable to the geral contractor and plumber sho that the Moving Defdants spt approximately $2,. in rovation costs. These rovation costs titled the Moving Defdants to increase the rt by one-fortieth of the total rovation costs per apartmt. This increase raised the legal rt in the Apartmt to ell over $ 2, per month hich is the threshold amount required to remove the Apartmt from rt stabilization restrictions. Section 19(A)(5) of the Lease titles the Moving Defdants to reimbursemt of any legal fees and expses incurred in defding this action (see Moving Papers, Exhibit R). Accordingly, it is hereby ORDERED, that this motion by defdants 15 West 7 5th Street LLC, Nunzio Ruggiero, Ruggiero Realty Managemt Corp., Angela Ruggiero and Gina Pate is granted.in its tirety, the Complaint is dismissed as against these defdants, and it is further, ORDERED, that the causes of action asserted by plaintiff against defdants 15 West 75th Street LLC, Nunzio Ruggiero, Ruggiero Realty Managemt Corp., Angela Ruggiero and Gina Pate are hereby severed and dismissed, and it is further,

5 [* 4] ORDERED, that ithin 1 days from the date of try the moving defdants serve a copy of this Order ith Notice of Entry upon all parties, and upon the Geral Clerk's Office (Room 119}, and it is further, ORDERED, that there be an inquest at the time of trial as to the amount of reasonable costs and attorneys fees oed by plaintiff Bjamin Dixon to the moving defdants 15 West 75th Street LLC, Nunzio Ruggiero, Ruggiero Realty Managemt Corp., Angela Ruggiero and Gina Pate in defding this action, and it is further, ORDERED, that ithin thirty (3) days from the date of service of a copy of this Order ith Notice of Entry, defdant Dime Savings Bank of Williamsburgh serve and file an Anser to the Complaint, and it is further, ORDERED, that the Clerk of the Court ter judgmt accordingly. ENTER: MANUEL J. MENDEZ J.S.C. Dated: April 13, 215 J'MANlJEL'J. MENDEZ J.S.C. Check one: FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: DO NOT POST REFERENCE