In “‘Roberts v. Tishman’: What’s New?” (NYLJ, November 1, 2017 pg. 5), several recent cases concerning unlawful deregulation under Roberts v. Tishman are addressed. However, it is important to add a crucial holding from the Taylor v. 72A Realty Associates case (1501 AD3d 95, 1st Dept. 2017) that is discussed in the article.
What is now plain from the Taylor ruling (Gische, J.) is that whether landlords unlawfully deregulated an apartment based on just a misapprehension of the law, or did so fraudulently, the courts will permit an examination of the rent history for a period of more than four years prior to the filing of an overcharge complaint in order to determine the legal rent for the apartment and to calculate the overcharge as the courts cannot “reconcile a mechanical application of CPLR 213-a [the four year statute of limitations for overcharge complaints] and give effect as to the retroactive application of Roberts, as we must (Gersten, 88 AD3d at 198)***”
In short, the courts have held that a lawful rent must be properly determined, and a landlord cannot simply use the rent taken from an unlawfully deregulated lease. Concerning the article’s discussion of Schiffren, it must be emphasized that luxury deregulation was allowed in Schiffren because the tenant in that case had previously been rent-stabilized prior to the building receiving J-51 benefits. Thus, when the J-51 benefits expired, that tenant reverted to his prior status of rent-stabilization that was not solely by virtue of J-51 and therefore he could be luxury deregulated. It is not the building’s general status that does the trick for landlords to allow luxury deregulation after J-51 benefits expire.
Darryl M. Vernon,
Vernon & Ginsburg