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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I disagree with the majority's conclusion that the deregulation of the apartment in 2009, following Roberts, factually distinguishes this case from those within Regina's reach or that it otherwise indicates fraud.[FN7] Roberts expressly stated that it was leaving open the issue of whether its ruling was retroactive (Roberts, 13 NY3d at 287). No appellate court held that Roberts was retroactive until 2011, when this Court decided Gersten v 56 7th Ave. LLC (88 AD3d 189 [1st Dept 2011], appeal withdrawn 18 NY3d 954 [2012]). The Court of Appeals only first recognized Gersten's retroactivity ruling in 2020, in Regina (35 NY3d at 350). Thus, when the apartment was originally deregulated, the law was, at best, in flux. The majority embraces plaintiff's further argument that defendant's failure to register with DHCR after this Court's decisions in Nolte (167 AD3d 498), Kreisler (164 AD3d 1117]) and Matter of Park (150 AD3d 105), is itself evidence of fraud and that we cannot allow defendant to avoid compliance with the law. I believe that Regina, with its robust requirements for finding fraud in Roberts' overcharge cases has sub silentio overruled this authority.

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