Supreme Court of The State of New York County of NEW YORK Index No. 115657/08 ELIZABETH SAVARESE individually and as Date purchased Nov. 20, 2008 representative of Rent Stabilized Tenants similarly situated, -against- Plaintiff(s), Plaintiff(s) designate(s) New York County County as the place of trial. The basis of the venue is Plaintiff's residence and the place of business of the Defendant 43 Gardens Realty LLC has offices to transact business in the County of New York SUMMONS THE STATE OF NEW YORK and 43 GARDENS REALTY LLC Plaintiff(s) reside(s) at: 83-43 118th Street Defendant(s) Apt 5 Kew Gardens, NY 11415 To the above-named Defendant(s) You are hereby summoned to answer the complaint in this action and to serve a copy of your answer, or, if the compliant is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attorney(s) within 30 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgement will be taken against you by default for the relief demanded in the complaint. Dated, New York, New York November 19, 2008 Robert A. Katz Attorney(s) for Plaintiff State of New York Office and Post Office Address: c/o Attorney General of the State of New York 277 Broadway, Suite 1410 120 Broadway New York, NY 10007 New York, New York 10271 (212) 587-2400, ext. 13 and 43 Gardens Realty LLC c/o The Expansion Group Inc. 250 West 57th Street New York, NY 10107 See complaint annexed.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X ELIZABETH SAVARESE individually, and as representative of all rent stabilized tenants similarly situated, Plaintiff, VERIFIED COMPLAINT Index No.: -against- THE STATE OF NEW YORK and 43 GARDENS REALTY LLC, Defendants. --------------------------------------------------------------------X Plaintiff by her attorney Robert A. Katz complaining against the named defendants alleges as follows: 1. Plaintiff at all times relevant remains a resident of the County of Queens, City and State of New York. 2. Plaintiff Elizabeth Savarese is a rent stabilized tenant residing in Apartment 5C at premises 83-43 118 th Street, Kew Gardens, NY in the County of Queens, City and State of New York where said plaintiff has resided since December 1, 1992. 3. The first named defendant in this complaint is the State of New York. 4. The second named defendant in this complaint is defendant 43 Gardens Realty LLC which upon information and belief is a successor entity to the then owner Johny Melohn, the then owner who provided the initial preferential lease, and that said defendant 43 Gardens Realty LLC which defendant transacts business relative to this complaint from offices located at 250 West 57 th Street, State City and County of New York. 5. The plaintiff individually and representative of all rent stabilized tenants who had annexed to their respective leases preferential lease riders on apartments they occupied wherein
the subject leases with said preferential lease riders were initially executed at anytime prior to June 20, 2003 comes now to this Court to challenge the constitutionality of the application of said RSL 26-511(c)(14) which reads: (14) provides that where the amount of rent charged to and paid by the tenant is less than the legal regulated rent for the housing accommodation, the amount of rent for such housing accommodation which may be charged upon renewal or upon vacancy thereof may, at the option of the owner, be based upon such previously established legal regulated rent, as adjusted by the most recent applicable guidelines increases and any other increases authorized by law. Where, subsequent to vacancy, such legal regulated rent, as adjusted by the most recent applicable guidelines increases and any other increases authorized by law is two thousand dollars or more per month, such housing accommodation shall be excluded from the provisions of this law pursuant to section 26-504.2 of this chapter. 6. Plaintiff sues the defendant State of New York seeking the voiding of said statute as specified in paragraph 5 above, on the grounds that its application to any preferential rent stabilized lease rider executed prior to June 20, 2003 should be declared unconstitutional, unjustifiable, unreasonable, arbitrary, capricious and confiscatory in total disregard of plaintiffs' contractual rights the impairment of which is protected by the New York State and Federal Constitutions, to the extent that its provision has retroactive unjust consequences that unduly harm and prejudice the rent stabilized tenant and the tenant's leasehold as a deprivation of a property right. 7. Alternatively, if the Court declines the remedy requested in paragraph 6 above, plaintiff would request on her individual behalf and as to all similarly situated permanent injunctive relief barring the State or any landlord from invoking the legal regulated rent upon a rent stabilized tenant who in good faith was induced to move into an apartment in terms of a preferential lease rider or provision where same was initially executed prior to June 20, 2003. 8. This is a justiciable controversy.
AS AND FOR A SECOND CAUSE OF ACTION ON BEHALF OF PLAINTIFF ELIZABETH SAVARESE 9. Plaintiff repeats and realleges paragraphs 1 through 8 as fully set forth and incorporated in this cause of action. 10. That plaintiff Elizabeth Savarese was induced to move into said apartment by the preferential rent offered by defendant Johny Melohn by rider dated October 15, 1992. 11. That but for the inducement of said rider the plaintiff would not have had the ability to lease the said apartment unit. 12. That the inducing initial lease rider reads: PREFERENTIAL RENT RIDER Rider to Lease made and dated October 15, 1992 by and between Elizabeth Savarese as Tenant and Johny Melohn as owner related to Apartment 5C at the premises located at 83-43 118 th Street, Kew Gardens, New York 11415. The Owner and Tenant hereby acknowledge that the Legal Rent for the above-mentioned apartment is $1,021.11 as of the commencement date of this lease on December 2, 1992. The parties agree that the Tenant, will pay $750.00 per month until the expiration of this lease on November 30, 1993 as a Preferential Rent. The reduction of rent amount is personal to this lease. Provided that Tenant is in compliance with all terms of this lease, Tenant s future rent increases after November 30, 1993 will be increased and subject to all rules as promulgated by the Rent Guidelines Board and/or the Division of Housing and Community Renewal, and/or any other agency which determines future rent increases. Tenant is only required to give the Owner a security deposit of $750.00 upon signing of this lease, in accordance with the Preferential Rent of $750.00 per month. At the time of Tenant s vacating of premises, the new rent amount for all future vacancy leases, will be calculated based on the Legal Rent of $1,021.11 and any applicable guidelines increases, or rent adjustments. TENANT OWNER
13. That the indicia of contract in the above-stated rider, is found in the statements agreed to by defendant-landlord and tenant, to wit: (a) That The reduction of rent amount is personal to this lease which means this tenant. (b) Tenant s future rent increases after November 30, 1993 will be increased and subject to all rules as promulgated by the Rent Guidelines Board and/or the Division of Housing and Community renewal, and/or any other agency which determines future rent increases. (c) it is only at the time of tenant s vacating of premises that the landlord can on all future vacancy leases, calculate upon the legal regulated rent. 14. Thereafter the plaintiff and defendant executed the same rider through each renewal period in terms of the Collingwood Rule which on December 20, 2000 was codified in RSC 2521.2(b) and the plaintiff had a right to rely on same in determining ability for continued occupancy of said apartment unit and leasehold. 15. What was alleged in paragraph 13 above, was followed between the parties through the last rider under the preferential rent annexed to the lease renewal dated August 2, 2006. 16. Plaintiff in the 2008 lease renewal has now been offered renewal without the preferential rent and at the legal regulated rent which would mean an unconscionable raise of $549.97 on a two-year lease renewal. 17. Plaintiff by attorney s letter dated September 5, 2008 has rejected said lease renewal and plaintiff claims a breach of the preferential rent contract. 18. Plaintiff s lease term expires November 30, 2008. 19. Plaintiff seeks a declaratory judgment finding that the preferential original rider must be construed as a contract wherein the terms of preferential rent must be complied with through the duration of the lawful occupancy of this plaintiff tenant. 20. That plaintiff does not have an adequate remedy at law.
21. That if this Court does not intervene plaintiff will suffer irreparable damage. AS AND FOR A THIRD CAUSE OF ACTION 22. Plaintiff repeats and realleges paragraphs 1 to 21 as if full set forth in this cause of action. 23. That the initial lease contains a clause allowing landlord to recover attorneys fees. 24. Therefore pursuant to RPL 234 the plaintiff is entitled to attorneys fees. WHEREFORE the plaintiff seeks the following relief against defendants (a) on the first cause of action a declaration that this Court determine that as to application in the circumstances of this complaint the Court find that RSL 26-511(c)(14) is void in application or alternatively the plaintiff prays for the Court to enjoin the use of the aforementioned provision against any preferential rider executed between landlord and tenant where said rider was in full force and effect prior to June 20, 2003. (b) that this Court enter judgment declaring that the defendants who are owners of the subject building must continue the terms of the preferential rider throughout the duration of the continued renewals as a rent stabilized tenant until such time as this plaintiff vacates the subject apartment unit. (c) (d) that plaintiff be awarded attorneys fees. that plaintiffs be awarded such other and further relief as this Court deems proper including Court costs and disbursements. Dated: New York, New York November 19, 2008 Yours etc. Robert A. Katz Attorney for Plaintiff 277 Broadway, Suite 1410 New York, NY 10007 Tel. 212-587-2400, ext. 13