Montera v. KMR Amsterdam LLC, 193 A.D.3d 102 (2021)

Citation: Montera v. KMR Amsterdam LLC, 193 A.D.3d 102 (2021)
Parent Document: Montera v. KMR Amsterdam LLC, 193 A.D.3d 102 (2021)
Jurisdiction: New York (state)
Effective Date: 2021-02-09
Original Source: https://www.courtlistener.com/opinion/4855109/montera-v-kmr-amsterdam-llc/ ↗

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Prior to Regina there was a great deal of confusion about what should be used as the base date in a Roberts overcharge case. While some courts strictly followed former CPLR 213-a, only considering the rent charged four years prior to the commencement of the overcharge action (see e.g. Reich v Belnord Partners, LLC, 168 AD3d 482 [1st Dept 2019], affd sub nom Regina, 35 NY3d 332 [2020]), other courts engaged in a reconstruction of the rent history (see Taylor v 72A Realty Assoc., L.P. (151 AD3d 95, 105-106 [1st Dept 2017]). Some courts were of the view that the very act of deregulation while receiving J-51 benefits was itself evidence or an indicia of fraud. The reasoning in Regina, however, necessarily rejects this view. None of the landlords in Regina timely registered the subject apartments. The absence of timely registration is, in fact, the hallmark of Roberts overcharge claims, because in each case the landlord removed the apartment from rent stabilization and believed, albeit incorrectly, that because the apartment was legitimately removed from rent regulation, registration [*9]was no longer required. Consequently, the mere lack of registration cannot set the predicate foundation for a fraud-based claim. In other words, if the majority were correct, all Roberts overcharge cases would be fraud cases. Clearly, the analysis in Regina is antithetical to that result. Furthermore, Regina refers to CPLR 213-a as a statute of repose, rather than a conventional statute of limitations. In doing so, the Court clarifies that CPLR 213-a not only fixes the date by which the right must be asserted, but also specifies the remedy. Regina expressly rejected prior decisions where courts had devised other common-law remedies for a Roberts claim as, for instance, this Court did in Taylor. Regina also clarifies that the carve-out for fraud, as described in Thornton v Baron (5 NY3d 175 [2005]), Matter of Grimm v State Div. of Hous. & Community Renewal Off. of Rent Admin. (15 NY3d 358 [2010]), and Conason v Megan Holding, LLC (25 NY3d 1 [2015] [collectively Thornton cases]), does not usually apply to Roberts cases because it is not "necessary to recognize an additional common-law exception that would create or increase the amount of overcharge damages in order to give proper effect to Roberts" (Regina at 360).

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