Opinion
59647/2007.
Decided November 29, 2007.
Petitioner's counsel, Fischman Fischman, New York, N.Y.
Respondent pro se, Gwen Goodwin apt. 5E, New York, NY.
Petitioner moves for leave to reargue the decision and order herein dated July 9, 2007. The court grants the requested leave but upon the granting thereof the court adheres to the prior result and denies the motion.
In this holdover proceeding petitioner alleged that respondent wrongfully refused its tender of a renewal lease for the rent stabilized premises. Respondent joined issue and defended on the ground that the lease tendered was a nullity because it included an increase in rent to the legal maximum instead of a smaller increase based on the lower preferential rent that she had been paying since 1988 when her tenancy began. Petitioner replied that it was no longer obliged to offer the preferential rent.
Thereafter the parties moved and cross-moved for relief. The court found that the lease was ambiguous to the extent that it did not specify whether the preferential rent was to be in force for a definite or an indefinite period, and the court went on to hold that under ordinary principles of contract construction the ambiguity had to be resolved against the drafter of the lease, and that since the drafter of the lease was petitioner's predecessor, it would be construed against petitioner. The court concluded that respondent was entitled to a renewal based on the preferential rent and dismissed the proceeding.
Respondent began her tenancy in 1998 pursuant to a two-year lease. It provided that the rent would be $600.00 per month but, via an asterisk, referenced a rider. The rider provided, among other things, that "TENANT HAS REQUESTED TO DO THE FOLLOWING AT HER OWN EXPENSE. LANDLORD WILL RENT AT A PREFERRED RATE OF $ 600. MONTHLY IN LIEU OF REHAB TO BE DONE BY TENANT." The rider described the work to be done by the tenant and also provided (in handwriting by a scrivener not identified in the moving papers) that "APT IS REGISTERED AT 650. LEASE/VACANCY RENEWAL — 2 yrs @ 4% = 26.00 REGISTERED RENT = $676.00."
Now petitioner seeks leave to reargue. Section 2221 of the CPLR provides in pertinent part that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion * * *" Petitioner argues that the ruling in Matter of Missionary Sisters of Sacred Heart, Ill v New York State Div. Of Hous. Community Renewal, 283 AD2d 284 (1st Dep't, 2001) permits petitioner ignore the terms of the initial 1998 lease, to discontinue the preferential rent and to charge the legal maximum, and that the court overlooked or misapprehended this precedent.
Petitioner reads into Missionary Sisters more than is there. In that case the court reviewed a DHCR administrative policy that a preferential rent once granted would continue until the apartment became vacant regardless of the terms of a lease between the landlord and the tenant. The court overturned the policy, holding that where the parties had contracted for a preferential rent for a limited term, the landlord was not required to continue the preference after the expiration of the term. Here in contrast, the parties did not contract for a rent preference for a limited term. Instead, the parties contracted for a rent preference for a term the duration of which the lease did not specify. Accordingly, this court held and continues to hold that the lease was ambiguous with respect thereto and that the ambiguity had to be resolved against the drafter here, the landlord under ordinary principles of contract construction, see, e.g., 151 West Associates v Printsiples Fabric Corp, 61 NY2d 732 (1984). Missionary Sisters does not require a different result.
The court notes that at the argument of the instant motion for leave to reargue, petitioner's counsel acknowledged that the lease had been drafted by petitioner's predecessor.
Petitioner also argues that an amendment in 2003 to the Rent Stabilization Law permits petitioner to discontinue the preferential rent regardless of the terms of the parties' 1998 lease and the renewals thereof, and that the court overlooked or misapprehended the same. However, the amendment simply codifies the result of Missionary Sisters. See, 448 West 54 Street Corp. v Doig-Marx, 5 Misc 3rd 405, 407 (Civ Ct, NY Co, 2004), aff'd, 11 Misc 3rd 126 (App Term, 1st Dep't, 2006), lv den, AD3rd, 2006 NY App Div LEXIS 12573 (1st Dep't); Colonnade Mgmt., LLC v Warner, 11 Misc 3rd 52, 53 (App Term, 1st Dep't, 2006), lv granted, AD3rd, 2007 NY App Div 9220; Aijaz v Hillside Place, 8 Misc 3rd 73, 76 (App Term, 2nd Dep't, 2005), aff'd in part, rev'd in part, 37 AD2d 501 (2nd Dep't, 2007).
RSL § 26-511 (c) (14). In pertinent part, it provides that "where the amount of rent charged to and paid by the tenant is less than the legal regulated rent for the housing accommodation, the amount of rent for such housing accommodation which may be charged upon renewal or upon vacancy thereof may, at the option of the owner, be based upon such previously established legal regulated rent, as adjusted by the most recent applicable guidelines increases and other increases authorized by law * * *".
In short, while Missionary Sisters and the 2003 amendment provide that a landlord need not continue to offer a preferential rent if continuation of the preferential rent is not otherwise required, here such a continuation is otherwise required.
Accordingly, the court grants the requested leave, but upon the granting of the same, the court adheres to its prior ruling and denies the motion.
The court will mail copies of this decision and order to the parties.