Massimo D’Angelo was Invited to Speak at the New York County Landlord Tenant Bar Association
• In Roberts v. Tishman Speyer, 13 N.Y.3d 270, the Court of Appeals ruled that
apartments in buildings with J-51 tax abatements could not be decontrolled when
rents rose above the $2000 threshold pursuant to RSL 26-504.2.
• The Roberts ruling corrected an erroneous DHCR advisory opinion from January
16, 1996, which advised landlords that they were entitled to luxury decontrol of
their apartments even while receiving J-51 tax abatements.
• The fact landlords were following DHCR guidance when they deregulated J51
apartments, has been key to courts finding landlords were not acting fraudulently.
• According to an amicus brief cited by the majority and dissent in Regina, the
Roberts’ decision lead to the recovery of around 50,000 rent stabilized apartments.
• Roberts then gave rise to the question of how to set the base date rents for
improperly decontrolled apartments, where the decontrol was based on the
landlords’ good faith reliance on DHCR policy, rather than on “fraud” in the sense
used in Grimm and Thornton.
• Regina, is four consolidated cases on certified questions from the Appellate
Division, 1st Department. All concerning rent setting after a non-fraudulent
Raden v. W 7879, LLC, 164 A.D.3d 440, 84 N.Y.S.3d 30 (N.Y. App. Div.
2018), aff'd sub nom. Regina Metro. Co., LLC v. New York State Div. of Hous. &
Cmty. Renewal, No. 1, 2020 WL 1557900 (N.Y. Apr. 2, 2020)
• Tenants took occupancy in 1995 at market-rate and
commenced action in 2010 seeking a stabilized lease and
a recovery of overcharge.
• Lower courts found no fraud as the owners correctly
anticipated the interpretation DHCR, which was
overturned in Roberts, would ultimately adopt
concerning the luxury deregulation provisions in J51.
• Given the lack of fraud, the Court of Appeals affirmed the
calculation of damages ($448.50) made by accepting the
rent charged four years before the complaint as the base
date rent and adding legal increases.
Taylor v. 72A Realty Assocs., L.P., 151 A.D.3d 95, 53 N.Y.S.3d 309 (N.Y. App. Div.
2017), aff'd as modified sub nom. Regina Metro. Co., LLC v. New York State
Div. of Hous. & Cmty. Renewal, No. 1, 2020 WL 1557900 (N.Y. Apr. 2, 2020)
• The complaint was filed in 2014.
• Appellate Division, 1st Department held that the subject apartments
were illegal deregulated in 2000 while the landlord was receiving J-
51 tax benefits.
• The lower courts found the landlord did not engage in any fraud in
removing apartment from rent regulation given the landlord was
following DHCR guidance for J51.
• The Appellate Division held that the legal regulated rent should be
reconstructed based on what the base date rent would have been if
the apartment had not been deregulated in 2000.
• Court of Appeals affirmed “tenants' request for a declaration that
the apartment was rent-stabilized at the time of their complaint
was properly granted” but modified the order to dismiss the
overcharge claim based on un-rebutted evidence that their was no
Reich v. Belnord Partners, LLC, 168 A.D.3d 482, 91 N.Y.S.3d 410 (N.Y. App. Div.
2019), aff'd sub nom. Regina Metro. Co., LLC v. New York State Div. of Hous. &
Cmty. Renewal, No. 1, 2020 WL 1557900 (N.Y. Apr. 2, 2020)
• The tenant received a rent-stabilized lease and the landlord
registered the rent with DHCR more than four years before
any rent overcharge complaint was filed.
• The overcharge claim was based on failure to charge rent
stabilized rents while receiving J-51 benefits.
• Appellate Division, 1st Department held that the landlord did
not engage in fraud, and thus in examining rental unit's
history to find last regulated rental rate, the court could not
look beyond the four-year statute of limitations.
• The order dismissing the overcharge claim was affirmed by
the Court of Appeals.
Regina Metro. Co., LLC v. New York State Div. of Hous. & Cmty. Renewal, No. 1,
2020 WL 1557900 (N.Y. Apr. 2, 2020)
• The DHCR Rent Administrator found that the landlord did not
engage in a fraudulent scheme to avoid rent stabilization
when they deregulated an apartment while receiving a J51
benefit, but used a reconstruction method to determine what
the rent would have been if the unit had not been illegally
• Appellate Division, 1st Department held the agency was not
arbitrary and capricious in finding no fraud, but held that
absent fraud the overcharge must be calculated based on the
base date four-years before the filing of the complaint and
remanded for calculation of the overcharge.
• The Court of Appeals affirmed.
Affirms that stabilization status is a free standing claim,
not beholden to the SOL for overcharges
• Regina via the Taylor facts, although the complaint was filed 14 years after
deregulation it was still proper to declare that the apartment was rent-
stabilized (“Indeed, in Taylor, regardless of any entitlement to monetary damages, the tenants' request for a
declaration that the apartment was rent-stabilized at the time of their complaint was properly granted.” Regina Metro. Co.,
LLC v. New York State Div. of Hous. & Cmty. Renewal, No. 1, 2020 WL 1557900, at *8 (N.Y. Apr. 2, 2020)).
• “[T]here is not, and there has never been, a time limit on when a tenant
can claim that a unit has been unlawfully deregulated. Both before and
after the HSTPA, tenants have always been able to challenge an unlawful
deregulation of an apartment, no matter how far in the past the
deregulation occurred (see e.g. Roberts v. Tishman Speyer Properties,
L.P., 13 N.Y.3d 270, 890 N.Y.S.2d 388, 918 N.E.2d 900  [tenants
brought suit in 2007 for an unlawful deregulation in 1993]; Kuzmich v. 50
Murray Street Acquisition LLC, 34 N.Y.3d 84, 108 N.Y.S.3d 431, 132 N.E.3d
624  [tenants brought suit in 2016 for an unlawful deregulation in
2003]; Gersten v. 56 7th Ave. LLC, 88 A.D.3d 189, 928 N.Y.S.2d 515 [1st
Dept. 2011] [tenants brought suit in 2009 for an unlawful deregulation in
Regina Metro. Co., LLC v. New York State Div. of Hous. & Cmty. Renewal, No. 1, 2020 WL 1557900, at *30 (N.Y. Apr. 2, 2020)
(Wilson, J., dissenting).