Dixon v. 105 West 75th Street LLC
53 N.Y.S.3d 1
| N.Y. App. Div. | 2017Background
- Plaintiff leased apartment 5B (top-floor) in May 2013 and has been charged market rent; DHCR records showed the unit last registered as rent-stabilized and vacant as of July 31, 2002.
- Landlord undertook construction after neighboring unit 5A became vacant: added rooftop penthouses and internal staircases connecting penthouses to 5A and 5B to create duplexes; DOB permits, LPC approval, invoices, canceled checks, and post‑work certificates of occupancy were submitted by landlord.
- Plaintiff contended the work did not change the apartment’s identity (same rooms, square footage, systems), challenged the authenticity/probative value of landlord’s documents, alleged delayed/defective DOB approvals, and disputed the claimed renovation costs and classification (repairs vs. improvements).
- Landlord moved to dismiss under CPLR 3211(a)(1) and (7), arguing documentary proof established entitlement to (1) “first rent” because the prior apartment’s identity was obliterated by reconfiguration, and (2) a rent increase via one‑fortieth of renovation costs pushing legal rent above the deregulation threshold; landlord also sought attorneys’ fees under the lease.
- Supreme Court granted dismissal and awarded landlord fees; plaintiff’s renewal motion was denied. The appellate majority affirmed dismissal on the law (relying on plans, permits, C of Os, invoices/checks) but reversed the fee award, holding the lease fee clause did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to “first rent” (decontrol via reconfiguration/obliteration) | Work did not alter apartment identity; same rooms/square footage/systems | Addition of penthouse + internal connection reconfigured and obliterated prior unit identity; DOB plans/C of O show new duplex | Landlord met burden; documents show substantial reconfiguration → first rent allowed |
| Sufficiency/authentication of documentary proof on CPLR 3211(a)(1) | Documents (invoices, checks, C of O, permits) were unauthenticated, inconsistent, and insufficient to conclusively refute plaintiff’s allegations | Submitted DOB-approved plans, permits, pre/post C of O, invoices and canceled checks collectively are unambiguous and dispositive | Majority: documents sufficiently authentic and conclusive; dismissal proper. Dissent: documents not authenticated; dismissal improper |
| Rent increase by one‑fortieth of renovation costs (bringing legal rent above deregulation threshold) | Costs not proven attributable to 5B; invoices non‑itemized, checks predate invoice, possible replacement within useful life, and DOB violations may bar adjustment | Invoice/checks show expenditures ~ $200,000 for combined duplex projects; half attributable to 5B; one‑fortieth raises rent above $2,000 threshold | Majority: contractor documents + C of O/plan support cost‑based increase; threshold met. Dissent: record insufficient and unauthenticated for conclusive ruling |
| Lease-based attorneys’ fees award to landlord | Lease fee clause applies to landlord’s defensive costs | Fee clause covers landlord recovery only if suit arises from tenant default or to defend lawsuits caused by tenant’s actions | Court (majority & dissent concur) reversed fee award: clause did not cover this action, so fees not recoverable |
Key Cases Cited
- Leon v. Martinez, 84 N.Y.2d 83 (establishes standard that CPLR 3211(a)(1) dismissal on documentary evidence requires conclusive proof)
- Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314 (documentary proof must utterly refute plaintiff to dismiss)
- Matter of 300 W. 49th St. Assoc. v. N.Y. State Div. of Hous. & Community Renewal, 212 A.D.2d 250 (defines "first rent" standard: perimeter reconfiguration/obliteration of prior apartment identity)
- Matter of Devlin v. N.Y. State Div. of Hous. & Community Renewal, 309 A.D.2d 191 (test: "reconfiguration plus obliteration" to justify first rent)
- Jemrock Realty Co., LLC v. Krugman, 72 A.D.3d 438 (landlord not required to separate improvements from repairs in contractor documentation for cost allocations)
- Zuckerman v. City of New York, 49 N.Y.2d 557 (evidence must be admissible/authenticated to be considered on motion)
- Advanced Global Tech., LLC v. Sirius Satellite Radio, Inc., 44 A.D.3d 317 (documentary evidence on a CPLR 3211 motion must be in admissible form)
- Fontanetta v. John Doe 1, 73 A.D.3d 78 (officially issued municipal documents such as DOB plans and C of O may be essentially undeniable and probative on documentary motions)