Justice Joan Kenney

Carter moved for summary judgment on her causes of action against landlord in this rent overcharge action on two rent-regulated apartments she claimed were illegally decontrolled. Landlord asserted it conceded the first apartment was illegally decontrolled and offered Carter a refund check for the difference, but she refused. It further argued the second apartment was rented to Carter after landlord’s J-51 tax benefits expired, thus the premises was not subject to rent regulation. The court found conflicting affidavits regarding an illusory tenancy of the second unit, which Carter alleged lead to the fraudulent deregulation of the premises, raised issues of fact of the apartment’s status, and precluded the granting of summary judgment. The court further stated these issues of fact also preclude Carter’s claims for monetary damages, including treble damages and attorney fees. The court noted even though both parties agreed the premises was rent regulated during Carter’s occupancy, a question of fact remained as to what the lawful rent for the first unit should have been. Also, as the allegations of defendants’ fraud must first be determined by a trier of fact, Carter’s motion for summary judgment on her causes of action was denied.