On May 24, 2017 a
Motion-Secondary
was filed
involving a dispute between
Amanda Peacock,
Chris Becker,
Elaine Purcell,
Emerson Wolfe,
Joel Poulter,
Jordan Kling,
Joshua Mctee,
Katherine Esposito,
Kristopher Tait,
Michael Cestaro,
Nathan Shupenko,
Remy Agamy,
Taleah Mona-Lusky,
and
Carmine Tierra Llc,
for Real Property - Other (Rent overcharge)
in the District Court of New York County.
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FILED: NEW YORK COUNTY CLERK 03/27/2019 10:52 PM INDEX NO. 154772/2017
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/27/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------X
MICHAEL CESTARO, CHRIS BECKER,
KATHERINE ESPOSITO, EMERSON WOLFE,
JORDAN KLING, AMANDA PEACOCK, Index No. 54772/2017
REMY AGAMY, KRISTOPHER TAIT,
JOSHUA McTEE, TALEAH MONA-LUSKY,
ELAINE PURCELL, JOEL POULTER, and
NATHAN SHUPENKO,
Affirmation in Opposition
Plaintiffs,
-against-
CARMINE TIERRA, LLC
Defendant.
--------------------------------------------------------------------X
JEREMY M. POLAND, an attorney duly admitted to practice law before the Courts of the State
of New York, does hereby affirm the following to be true under the penalties of perjury and
pursuant to CPLR 2106:
1. I am an associate of Horing Welikson & Rosen, attorneys for the Defendant herein, and a
such I am fully familiar with the facts and circumstances as related herein based upon personal
knowledge, a review of the file maintained by this office and communication with the Defendant.
2. This affirmation is submitted in opposition to the Plaintiffs’ motion seeking an order
compelling Defendant to produce discovery and/or precluding Defendant from offering evidence
not produced.
3. As the Court will note, Plaintiffs have commenced this proceeding claiming that there has
been a rent overcharge. As set forth more fully in the attached Memorandum of Law, any rent
overcharge claim is subject to a four year statute of limitations. This proceeding was filed on
May 24, 2017 making the base date for the rent overcharge claim May 24, 2013.
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FILED: NEW YORK COUNTY CLERK 03/27/2019 10:52 PM INDEX NO. 154772/2017
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/27/2019
4. Absent a showing of a fraudulent scheme to deregulate, which as set forth in the attached
Memorandum of Law is a very difficult threshold to meet, Plaintiffs claims are restricted to May
24, 2013 to the present. The chart provided by the Plaintiffs in their attorney’s affirmation
makes it very clear that the overall bulk of the discovery that they are claiming has not been
provided are for documents beyond the base date.
5. Defendant has already provided many documents from the base date moving forward and
continues to search for more documents from that time period.
6. The affidavits of some of the Plaintiffs attached to the Plaintiffs’ motion are not
persuasive.
7. The complaint by those Plaintiffs that they did not receive a rider showing how their rent
was calculated is a red herring. 9 NYCRR §2520.11 (u) which requires such information to be
provided did not come into existence until the 2014 amendments to the Rent Stabilization Code
which took effect in 2015.
8. Those Plaintiffs complaining about not receiving such information either received leases
prior to the requirement or were not the first de-regulated tenants and were not entitled to such
information. Either way the failure to receive that rider is not indicative of a fraudulent scheme
to deregulate.
9. Similarly, the other complaints in the affidavits center on jumps in the rent. As set forth
in much greater detail in the attached Memorandum of Law, mere jumps in the rent are not
enough to show a fraudulent scheme to deregulate and, therefore, not enough to allow the
Plaintiffs claims to go beyond the base date making any demands for discovery beyond the base
date irrelevant to this proceeding.
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FILED: NEW YORK COUNTY CLERK 03/27/2019 10:52 PM INDEX NO. 154772/2017
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/27/2019
10. Finally, the Plaintiffs’ assertions in their affidavits that since prior tenants had
preferential rents they are entitled to discovery beyond the base date is refuted in the
Memorandum of Law. The ability to go beyond the base date based upon preferential rents is to
determine the terms of the lease between a tenant and landlord and not to eviscerate the rent
overcharge statute of limitations.
11. Plaintiffs are not entitled to any discovery beyond the base date. As such those portions
of their motion seeking discovery beyond the base date should be denied in its entirety. As to the
discovery that is from the base date to the present, Defendant has provided discovery and will
continue to do so as more documents are found.
Dated: Williston Park, New York
March 27, 2019
_____________/s/_______________
Jeremy M. Poland
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Document Filed Date
March 27, 2019
Case Filing Date
May 24, 2017
Category
Real Property - Other (Rent overcharge)
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FILED: NEW YORK COUNTY CLERK 03/27/2019 10:52 PM INDEX NO. 154772/2017 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/27/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X MICHAEL CESTARO, CHRIS BECKER, KATHERINE ESPOSITO, EMERSON WOLFE, JORDAN KLING, AMANDA PEACOCK, Index No. 54772/2017 REMY AGAMY, KRISTOPHER TAIT, JOSHUA McTEE, TALEAH MONA-LUSKY, ELAINE PURCELL, JOEL POULTER, and NATHAN SHUPENKO, Affirmation in Opposition Plaintiffs, -against- CARMINE TIERRA, LLC Defendant. --------------------------------------------------------------------X JEREMY M. POLAND, an attorney duly admitted to practice law before the Courts of the State of New York, does hereby affirm the following to be true under the penalties of perjury and pursuant to CPLR 2106: 1. I am an associate of Horing Welikson & Rosen, attorneys for the Defendant herein, and a such I am fully familiar with the facts and circumstances as related herein based upon personal knowledge, a review of the file maintained by this office and communication with the Defendant. 2. This affirmation is submitted in opposition to the Plaintiffs’ motion seeking an order compelling Defendant to produce discovery and/or precluding Defendant from offering evidence not produced. 3. As the Court will note, Plaintiffs have commenced this proceeding claiming that there has been a rent overcharge. As set forth more fully in the attached Memorandum of Law, any rent overcharge claim is subject to a four year statute of limitations. This proceeding was filed on May 24, 2017 making the base date for the rent overcharge claim May 24, 2013. 1 of 3 FILED: NEW YORK COUNTY CLERK 03/27/2019 10:52 PM INDEX NO. 154772/2017 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/27/2019 4. Absent a showing of a fraudulent scheme to deregulate, which as set forth in the attached Memorandum of Law is a very difficult threshold to meet, Plaintiffs claims are restricted to May 24, 2013 to the present. The chart provided by the Plaintiffs in their attorney’s affirmation makes it very clear that the overall bulk of the discovery that they are claiming has not been provided are for documents beyond the base date. 5. Defendant has already provided many documents from the base date moving forward and continues to search for more documents from that time period. 6. The affidavits of some of the Plaintiffs attached to the Plaintiffs’ motion are not persuasive. 7. The complaint by those Plaintiffs that they did not receive a rider showing how their rent was calculated is a red herring. 9 NYCRR §2520.11 (u) which requires such information to be provided did not come into existence until the 2014 amendments to the Rent Stabilization Code which took effect in 2015. 8. Those Plaintiffs complaining about not receiving such information either received leases prior to the requirement or were not the first de-regulated tenants and were not entitled to such information. Either way the failure to receive that rider is not indicative of a fraudulent scheme to deregulate. 9. Similarly, the other complaints in the affidavits center on jumps in the rent. As set forth in much greater detail in the attached Memorandum of Law, mere jumps in the rent are not enough to show a fraudulent scheme to deregulate and, therefore, not enough to allow the Plaintiffs claims to go beyond the base date making any demands for discovery beyond the base date irrelevant to this proceeding. 2 of 3 FILED: NEW YORK COUNTY CLERK 03/27/2019 10:52 PM INDEX NO. 154772/2017 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/27/2019 10. Finally, the Plaintiffs’ assertions in their affidavits that since prior tenants had preferential rents they are entitled to discovery beyond the base date is refuted in the Memorandum of Law. The ability to go beyond the base date based upon preferential rents is to determine the terms of the lease between a tenant and landlord and not to eviscerate the rent overcharge statute of limitations. 11. Plaintiffs are not entitled to any discovery beyond the base date. As such those portions of their motion seeking discovery beyond the base date should be denied in its entirety. As to the discovery that is from the base date to the present, Defendant has provided discovery and will continue to do so as more documents are found. Dated: Williston Park, New York March 27, 2019 _____________/s/_______________ Jeremy M. Poland 3 of 3