Building Was Rent Stabilized Due to Sixth Apartment in Basement

Landlord sued to evict tenant. Landlord claimed that tenant was unregulated because the building contained fewer than six apartment units. Tenant argued that the building contained six apartments, including one in the basement. Tenant claimed that the building therefore was rent stabilized. The court ruled for tenant and dismissed the case.

Landlord appealed and lost. Landlord pointed out that, in a prior 2015 eviction proceeding against tenant, the court denied tenant's motion to dismiss the case. But the question of whether the building was rent stabilized wasn't decided by the court order in the 2015 case, and the 2015 case was dismissed on a technicality. Tenant had shown that in 2013 landlord sued to evict a different tenant who lived in the basement apartment at that time, claiming that tenancy was terminated. Tenant also submitted photographs of six mailboxes at the building and pieces of mail addressed to the basement apartment at the building. Tenant also had submitted a sworn statement that the basement unit contained a kitchen and bathroom and identifying several former tenants who had lived there. Landlord didn't rebut tenant's claim and only submitted HPD records showing five legal apartments.

135 Evergreen Corp. v. Delvalle: 63 Misc.3d 157(A), 2019 NY Slip Op 50831(U) (App. T. 2 Dept.; 5/24/19; Pesce, PJ, Weston, Aliotta, JJ)