This past Thursday, the Appellate Division, First Department, released three decisions, all of which held that tenants can waive treble damages in Roberts-style class action cases so as to avoid the prohibition in the class action statute against seeking penalties. The cases were Downing v. First Lenox Terrace Assocs., Gudz v. Jemrock Realty, and Borden v. 400 East 55th Street Assocs. (The authors’ firm represented the owner in Borden.)
Background
The three cases arose in the wake of Roberts v. Tishman Speyer Props., 62 A.D.3d 71, 874 N.Y.S.2d 97 (1st Dept. 2009), aff’d 13 N.Y.3d 270, 890 N.Y.S.2d 388 (2009). There, the New York State Court of Appeals ruled that an owner’s receipt of J-51 benefits barred the owner from luxury deregulating apartments while such benefits were in effect.
