Preview
FILED: BRONX COUNTY CLERK 11/22/2022 09:51 PM INDEX NO. 30724/2020E
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/22/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF THE BRONX : IAS PART 6
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ESMELIN PENA and LEONELA PENA, Index No. 30724/2020E
Douglas J.
Plaintiffs, Motion Seq. # 1
--against-- AFFIRMATION IN SUPPORT
OF PLAINTIFFS' MOTION FOR
VAN COURTLANDT ASSETS LLC, SUMMARY JUDGMENT
Defendant.
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THOMAS J. HILLGARDNER, ESQ., an attorney duly admitted to the practice of law
before the courts of the State of New York, pursuant to CPLR § 2104 affirms the following to be
true under the penalties for perjury:
1. I am the attorney for the plaintiffs ESMELIN PENA and LEONELA PENA in
this action and as such I am fully familiar with the matters set forth herein as is more fully shown
below. I make this affirmation in support of plaintiff's motion which seeks an order:
(a) pursuant to CPLR 3212 granting plaintiff summary judgment dismissing
defendant's first counterclaim upon the grounds that it is without merit;
(b) pursuant to CPLR 3211 (b) dismissing defendant's Second, Third, Fourth, Fifth,
Sixth, Seventh, Eighth, Tenth, and Twelfth affirmative defenses upon the grounds
that they are inapplicable based on the facts stated and claims involved and/or
that they lack merit;
(c) pursuant to CPLR 3212 granting plaintiff summary judgment on all of the causes
of action in the complaint and dismissing defendant's affirmative defenses upon
the grounds that there is no dispute as to any material fact such that judgment may
be entered as a matter of law; and
(d) granting plaintiff any such other and further relief that to this Court seems just and
proper.
Procedural History
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2. This action was commenced on September 23, 2020 with the e-filing of the
summons and complaint. A true and complete copy of the summons and complaint are annexed
hereto and made a part hereof as Exhibit A. As is shown more fully thereby, the complaint
pleads three causes of action: two sounding in statutory rent overcharge and the third merely
seeking to recover any excess security plaintiffs paid in the event this Court finds a rent
overcharge and lowers the legal regulated rent of the premises.
3. On December 22, 2020, issue was joined when defendant VAN COURTLANDT
ASSETS, LLC, by its attorneys Novick Edelstein Pomerantz P.C., answered the complaint. A
true and complete copy of the defendant's verified answer is annexed hereto and made a part
hereof as Exhibit B. In addition to admitting or denying the allegations of the complaint,
defendant's verified answer interposes 12 affirmative defenses and one counterclaim for
attorney's fees.
4. On December 23, 2020, plaintiffs, by the undersigned e-filed a reply to
defendant's counterclaim. A true and complete copy of plaintiffs' reply to counterclaim is
annexed hereto and made a part hereof as Exhibit C. Plaintiffs' reply contained two affirmative
defenses.
5. On December 23, 2020 plaintiff, by the undersigned, served and filed a demand
for a verified bill of particulars. A true and complete copy of plaintiffs' demand for a verified bill
of particulars dated December 23, 2020 is annexed hereto and made a part hereof as Exhibit D.
6. On June 30, 2021, defendant served and filed a verified bill of particulars. A true
and complete copy of defendant's verified bill of particulars dated June 30, 2021 is annexed
hereto and made a part hereof as Exhibit E. To date, and notwithstanding that there remains no
outstanding requests for disclosure, defendant has not supplemented that bill of particulars.
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7. The parties have sought and exchanged disclosure, and to the best of my
knowledge, information, and belief, there is not outstanding any requests by any party for
disclosure. As is relevant on this motion, on August 15, 2021 plaintiffs served a demand for
discovery and inspection. A true and complete copy of plaintiffs' demand for discovery and
inspection dated August 15, 2021 is annexed hereto and made a part hereof as Exhibit F. On
October 15, 2021 plaintiffs served a set of interrogatories on defendant's attorneys. A true and
complete copy of plaintiff's interrogatories is annexed hereto and made a part hereof as Exhibit
G. In due course defendant responded to both of plaintiffs' demands. A true and complete copy
of defendant's amended response to plaintiffs' demand for discovery and inspection is annexed
hereto and made a part hereof as Exhibit H. A true and complete copy of defendant's response to
plaintiffs' interrogatories is annexed hereto and made a part hereof as Exhibit I.
8. A true and complete copy of a DHCR Rent History for the Subject Premises dated
July 30, 2020 is annexed hereto and made a part hereof as Exhibit J.
9. Plaintiffs now move for summary judgment on their claims for rent overcharge
(first and second causes of action) and excess security deposit (third cause of action). In doing
so, plaintiffs also move to dismiss defendant's affirmative defenses and counterclaims.
10. The Court is respectfully referred to the complaint in this action verified by the
plaintiff Esmelin Pena on September 14, 2020 and the affidavit of plaintiff Esmelin Pena sworn
to on October 27, 2022 for a statement of the relevant facts.
11. One of the documents provided to plaintiff by defendant in discovery is the
vacancy lease of the prior tenants, Herbert and Gloria Liener. For this Court's ease of reference,
the vacancy lease of Herbert and Gloria Liener is annexed hereto and made a part hereof as
Exhibit K.
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12. In July 2021 I made a records request to DHCR seeking the report of decontrol
from rent control for the Subject Premises and I received a response that no such record was on
file. A true and complete copy of the July 9, 2021 cover letter of Alfredo Amador responding to
my records request on behalf of DHCR is annexed hereto and made a part hereof as Exhibit L.
13. As is shown more fully by the affidavit of Esmelin Pena, plaintiffs' rent
overcharge claims arise from two events that both are evident from the standard rent stabilization
rider for New York City apartment tenants (DHCR Form RA-LR1 (07/14)) that was annexed to
the May 22, 2018 vacancy lease that is the lone exhibit to the verified complaint and the
accuracy and completeness of which is admitted in the pleadings. Those two events concern (a)
defendants' assessment of a rent increase based upon an individual apartment improvement (IAI)
that allegedly was performed by defendants after the vacatur of the Subject Premises by the prior
tenant and immediately prior to plaintiffs taking possession of the Subject Premises; and (b)
defendant's calculation of a so-called "longevity increase." As is more fully shown in the
memorandum of law submitted herewith, the overcharge for the overstated longevity increase
amounts to $6.72/monthly. It is the individual apartment improvement fraud that is the Big
Enchilada.
14. The RA-LR1 rider annexed to the May 22, 2018 vacancy lease shows that in
calculating plaintiffs' initial rent of $2,100.00 defendant assessed a $480.73 rent increase based
upon an individual apartment improvement. Meanwhile, the Building has 89 class "A"
apartments and, accordingly, under the old law of rent overcharge that is applicable in this case,
the Rent Stabilization Code permits the landlord to collect a rent increase of 1/64th of its total
expenditure on eligible improvements. Thus, in order to be able to charge a $480.73 rent
increase, defendant needed to spend $28,843.80 on eligible improvements.
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15. A hard look at the documentation provided to plaintiffs in discovery shows that,
in addition to selecting a vendor controlled by the Toporovsky family, see, infra ¶ 16, defendant
desires to assess costs for an individual apartment improvement based upon many things that are
ineligible for treatment as an improvement. These items include painting and plastering, sanding
and scraping the wood floor, reglazing the bathtub, replacing the at least 44-year old kitchen
floor linoleum with new vinyl tiles, a $10.95 toilet seat, CO/Smoke detector, a Mortise lock
cylinder, and replacement of electrical outlets and switch plates allegedly throughout the
apartment. Some of the invoices contain charges for items explicitly provided for installation in
other apartments and other apartment buildings.
16. This motion gives a peek into the shenanigans of the real estate empire operated
by Rinaldo Toporovsky. Mr. Toporovsky was president of both O.T. Company, L.P. and 2683
Morris Avenue LLC when on December 22, 2003 he executed a bargain and sale deed on behalf
of both of those entities conveying 151-165 E. Mosholu Parkway N. ("the Building") to
defendant Van Courtlandt Assets LLC whose address for notice of process served on the
secretary of state is 179 Cedar Avenue, Suite H, Teaneck, New Jersey 07666. This is the same
address as Toporovsky & Sons Realty Corp., a.k.a Toporovsky Realty, the real managing agent
of the property and whose name appears on several of the invoices submitted by defendant as
evidence of an individual apartment improvement expense and listing the Cedar Avenue address.
Until recently, the Building was managed by Arthur Court Realty Mgt. Corp., whose chief
executive officer is "R.H. Toporovsky" of 179 Cedar Avenue, Suite H, Teaneck, New Jersey
07666. One of the vendors whose invoices are submitted in support of the claimed individual
apartment improvement is A & A Property Maintenance Services, Inc. whose chief executive
officer is "R.H. Toporovsky" of 179 Cedar Avenue, Suite H, Teaneck, New Jersey 07666. All of
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the aforesaid address information may be gleaned from the records of the Department of State,
Division of Corporations for each of the named entities, which are all New York entities.
17. I-Card images on file with the City of New York Department of Housing
Preservation and Development and available for download on its website known as HPD Online
(of which this Court may take judicial notice) indicate that the Building was erected in the mid-
1920s.
18. Pursuant to 22 NYCRR § 202.8g, on this motion for summary judgment a
statement of material facts is submitted herewith.
19. A memorandum of law is submitted herewith.
DATED: Jamaica, New York
November 22, 2022
T S J. HILLGARDNER, ESQ.
y for Plaintiff
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Certification Pursuant to 22 NYCRR § 202.S-b
I hereby certify, pursuant to 22 NYCRR § 202.8-b, that the foregoing Attorney
Affirmation in Support of Motion for Summary Judgment complies with the word count limit set
forth in the aforementioned section.
The total number of words inclusive of headings and footnotes and exclusive of the
caption, table of contents, table of authorities, and signature block is 1,605.
DATED: Jamaica, New York
November 22, 2022
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Preview
FILED: BRONX COUNTY CLERK 11/22/2022 09:51 PM INDEX NO. 30724/2020E NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/22/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF THE BRONX : IAS PART 6 ---------------------------------------------------------------------x ESMELIN PENA and LEONELA PENA, Index No. 30724/2020E Douglas J. Plaintiffs, Motion Seq. # 1 --against-- AFFIRMATION IN SUPPORT OF PLAINTIFFS' MOTION FOR VAN COURTLANDT ASSETS LLC, SUMMARY JUDGMENT Defendant. ---------------------------------------------------------------------x THOMAS J. HILLGARDNER, ESQ., an attorney duly admitted to the practice of law before the courts of the State of New York, pursuant to CPLR § 2104 affirms the following to be true under the penalties for perjury: 1. I am the attorney for the plaintiffs ESMELIN PENA and LEONELA PENA in this action and as such I am fully familiar with the matters set forth herein as is more fully shown below. I make this affirmation in support of plaintiff's motion which seeks an order: (a) pursuant to CPLR 3212 granting plaintiff summary judgment dismissing defendant's first counterclaim upon the grounds that it is without merit; (b) pursuant to CPLR 3211 (b) dismissing defendant's Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Twelfth affirmative defenses upon the grounds that they are inapplicable based on the facts stated and claims involved and/or that they lack merit; (c) pursuant to CPLR 3212 granting plaintiff summary judgment on all of the causes of action in the complaint and dismissing defendant's affirmative defenses upon the grounds that there is no dispute as to any material fact such that judgment may be entered as a matter of law; and (d) granting plaintiff any such other and further relief that to this Court seems just and proper. Procedural History 1 of 7 FILED: BRONX COUNTY CLERK 11/22/2022 09:51 PM INDEX NO. 30724/2020E NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/22/2022 2. This action was commenced on September 23, 2020 with the e-filing of the summons and complaint. A true and complete copy of the summons and complaint are annexed hereto and made a part hereof as Exhibit A. As is shown more fully thereby, the complaint pleads three causes of action: two sounding in statutory rent overcharge and the third merely seeking to recover any excess security plaintiffs paid in the event this Court finds a rent overcharge and lowers the legal regulated rent of the premises. 3. On December 22, 2020, issue was joined when defendant VAN COURTLANDT ASSETS, LLC, by its attorneys Novick Edelstein Pomerantz P.C., answered the complaint. A true and complete copy of the defendant's verified answer is annexed hereto and made a part hereof as Exhibit B. In addition to admitting or denying the allegations of the complaint, defendant's verified answer interposes 12 affirmative defenses and one counterclaim for attorney's fees. 4. On December 23, 2020, plaintiffs, by the undersigned e-filed a reply to defendant's counterclaim. A true and complete copy of plaintiffs' reply to counterclaim is annexed hereto and made a part hereof as Exhibit C. Plaintiffs' reply contained two affirmative defenses. 5. On December 23, 2020 plaintiff, by the undersigned, served and filed a demand for a verified bill of particulars. A true and complete copy of plaintiffs' demand for a verified bill of particulars dated December 23, 2020 is annexed hereto and made a part hereof as Exhibit D. 6. On June 30, 2021, defendant served and filed a verified bill of particulars. A true and complete copy of defendant's verified bill of particulars dated June 30, 2021 is annexed hereto and made a part hereof as Exhibit E. To date, and notwithstanding that there remains no outstanding requests for disclosure, defendant has not supplemented that bill of particulars. 2 2 of 7 FILED: BRONX COUNTY CLERK 11/22/2022 09:51 PM INDEX NO. 30724/2020E NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/22/2022 7. The parties have sought and exchanged disclosure, and to the best of my knowledge, information, and belief, there is not outstanding any requests by any party for disclosure. As is relevant on this motion, on August 15, 2021 plaintiffs served a demand for discovery and inspection. A true and complete copy of plaintiffs' demand for discovery and inspection dated August 15, 2021 is annexed hereto and made a part hereof as Exhibit F. On October 15, 2021 plaintiffs served a set of interrogatories on defendant's attorneys. A true and complete copy of plaintiff's interrogatories is annexed hereto and made a part hereof as Exhibit G. In due course defendant responded to both of plaintiffs' demands. A true and complete copy of defendant's amended response to plaintiffs' demand for discovery and inspection is annexed hereto and made a part hereof as Exhibit H. A true and complete copy of defendant's response to plaintiffs' interrogatories is annexed hereto and made a part hereof as Exhibit I. 8. A true and complete copy of a DHCR Rent History for the Subject Premises dated July 30, 2020 is annexed hereto and made a part hereof as Exhibit J. 9. Plaintiffs now move for summary judgment on their claims for rent overcharge (first and second causes of action) and excess security deposit (third cause of action). In doing so, plaintiffs also move to dismiss defendant's affirmative defenses and counterclaims. 10. The Court is respectfully referred to the complaint in this action verified by the plaintiff Esmelin Pena on September 14, 2020 and the affidavit of plaintiff Esmelin Pena sworn to on October 27, 2022 for a statement of the relevant facts. 11. One of the documents provided to plaintiff by defendant in discovery is the vacancy lease of the prior tenants, Herbert and Gloria Liener. For this Court's ease of reference, the vacancy lease of Herbert and Gloria Liener is annexed hereto and made a part hereof as Exhibit K. 3 3 of 7 FILED: BRONX COUNTY CLERK 11/22/2022 09:51 PM INDEX NO. 30724/2020E NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/22/2022 12. In July 2021 I made a records request to DHCR seeking the report of decontrol from rent control for the Subject Premises and I received a response that no such record was on file. A true and complete copy of the July 9, 2021 cover letter of Alfredo Amador responding to my records request on behalf of DHCR is annexed hereto and made a part hereof as Exhibit L. 13. As is shown more fully by the affidavit of Esmelin Pena, plaintiffs' rent overcharge claims arise from two events that both are evident from the standard rent stabilization rider for New York City apartment tenants (DHCR Form RA-LR1 (07/14)) that was annexed to the May 22, 2018 vacancy lease that is the lone exhibit to the verified complaint and the accuracy and completeness of which is admitted in the pleadings. Those two events concern (a) defendants' assessment of a rent increase based upon an individual apartment improvement (IAI) that allegedly was performed by defendants after the vacatur of the Subject Premises by the prior tenant and immediately prior to plaintiffs taking possession of the Subject Premises; and (b) defendant's calculation of a so-called "longevity increase." As is more fully shown in the memorandum of law submitted herewith, the overcharge for the overstated longevity increase amounts to $6.72/monthly. It is the individual apartment improvement fraud that is the Big Enchilada. 14. The RA-LR1 rider annexed to the May 22, 2018 vacancy lease shows that in calculating plaintiffs' initial rent of $2,100.00 defendant assessed a $480.73 rent increase based upon an individual apartment improvement. Meanwhile, the Building has 89 class "A" apartments and, accordingly, under the old law of rent overcharge that is applicable in this case, the Rent Stabilization Code permits the landlord to collect a rent increase of 1/64th of its total expenditure on eligible improvements. Thus, in order to be able to charge a $480.73 rent increase, defendant needed to spend $28,843.80 on eligible improvements. 4 4 of 7 FILED: BRONX COUNTY CLERK 11/22/2022 09:51 PM INDEX NO. 30724/2020E NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/22/2022 15. A hard look at the documentation provided to plaintiffs in discovery shows that, in addition to selecting a vendor controlled by the Toporovsky family, see, infra ¶ 16, defendant desires to assess costs for an individual apartment improvement based upon many things that are ineligible for treatment as an improvement. These items include painting and plastering, sanding and scraping the wood floor, reglazing the bathtub, replacing the at least 44-year old kitchen floor linoleum with new vinyl tiles, a $10.95 toilet seat, CO/Smoke detector, a Mortise lock cylinder, and replacement of electrical outlets and switch plates allegedly throughout the apartment. Some of the invoices contain charges for items explicitly provided for installation in other apartments and other apartment buildings. 16. This motion gives a peek into the shenanigans of the real estate empire operated by Rinaldo Toporovsky. Mr. Toporovsky was president of both O.T. Company, L.P. and 2683 Morris Avenue LLC when on December 22, 2003 he executed a bargain and sale deed on behalf of both of those entities conveying 151-165 E. Mosholu Parkway N. ("the Building") to defendant Van Courtlandt Assets LLC whose address for notice of process served on the secretary of state is 179 Cedar Avenue, Suite H, Teaneck, New Jersey 07666. This is the same address as Toporovsky & Sons Realty Corp., a.k.a Toporovsky Realty, the real managing agent of the property and whose name appears on several of the invoices submitted by defendant as evidence of an individual apartment improvement expense and listing the Cedar Avenue address. Until recently, the Building was managed by Arthur Court Realty Mgt. Corp., whose chief executive officer is "R.H. Toporovsky" of 179 Cedar Avenue, Suite H, Teaneck, New Jersey 07666. One of the vendors whose invoices are submitted in support of the claimed individual apartment improvement is A & A Property Maintenance Services, Inc. whose chief executive officer is "R.H. Toporovsky" of 179 Cedar Avenue, Suite H, Teaneck, New Jersey 07666. All of 5 5 of 7 FILED: BRONX COUNTY CLERK 11/22/2022 09:51 PM INDEX NO. 30724/2020E NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/22/2022 the aforesaid address information may be gleaned from the records of the Department of State, Division of Corporations for each of the named entities, which are all New York entities. 17. I-Card images on file with the City of New York Department of Housing Preservation and Development and available for download on its website known as HPD Online (of which this Court may take judicial notice) indicate that the Building was erected in the mid- 1920s. 18. Pursuant to 22 NYCRR § 202.8g, on this motion for summary judgment a statement of material facts is submitted herewith. 19. A memorandum of law is submitted herewith. DATED: Jamaica, New York November 22, 2022 T S J. HILLGARDNER, ESQ. y for Plaintiff 6 6 of 7 FILED: BRONX COUNTY CLERK 11/22/2022 09:51 PM INDEX NO. 30724/2020E NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/22/2022 Certification Pursuant to 22 NYCRR § 202.S-b I hereby certify, pursuant to 22 NYCRR § 202.8-b, that the foregoing Attorney Affirmation in Support of Motion for Summary Judgment complies with the word count limit set forth in the aforementioned section. The total number of words inclusive of headings and footnotes and exclusive of the caption, table of contents, table of authorities, and signature block is 1,605. DATED: Jamaica, New York November 22, 2022 7 7 of 7