source: Caselaw Access Project

license: Public Domain

text:
    [27 NE3d 471, 3 NYS3d 757]
    Mary T. Heltz, Appellant, v Bruce S. Barratt et al., Respondents.
    Decided December 17, 2014

      APPEARANCES OF COUNSEL

      Personius Melber LLP, Buffalo (Scott R. Hapeman of counsel), for appellant.

      Barth Sullivan Behr, Buffalo (Andrew J. Kowalewski of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs. Plaintiff failed to produce admissible evidence raising a triable issue of fact concerning whether defendant Barratt had an opportunity to avoid the collision.

Concur: Chief Judge Lippman and Judges Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    [27 NE3d 459, 3 NYS3d 745]
    The People of the State of New York, Respondent, v Sandra Diaz, Appellant.
    Argued January 6, 2015;
    decided February 12, 2015

      APPEARANCES OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (.Katharine Skolnick of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City CKaren Schlossberg and Vincent Rivellese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Early in the morning of April 8, 2009, police officers executed a search warrant at an apartment in a building located in Manhattan. The officers had been investigating this address for potential illegal drug activity for almost a year. Defendant Sandra Diaz and her three children, her 10-year-old niece and Matías Rivera, her children’s father, were present in the apartment. When the police entered, defendant was standing in her “bedroom attire” in the doorway of a bedroom. Inside this bedroom, in several different locations, the officers discovered approximately 30 bundled glassine envelopes of what was later identified as heroin; 26 glassine envelopes containing what subsequently tested positive for heroin residue; a bottle containing 35 pills of what was later determined to be Suboxone, a maintenance drug used to treat heroin addiction; and numerous items of drug paraphernalia. The dresser drawer where some of these items were found also contained defendant’s ink pad, her mail and her son’s health insurance card. No contraband was discovered elsewhere in the apartment, where both Rivera and defendant told the police they resided; defendant’s name was on the lease and the Con Ed account.

Defendant and Rivera were jointly charged with one count each of third-degree (heroin) and fifth-degree (Suboxone) criminal drug possession with intent to sell (Penal Law §§ 220.16 [1]; 220.06 [1]); three counts of criminally using drug paraphernalia in the second degree for possessing lactose (a narcotic dilutant), empty glassine envelopes and a scale, under circumstances evincing knowledge that some person intends to use those items for the purpose of manufacturing, packaging or dispensing a narcotic drug for sale (id. § 220.50 [l]-[3]); and four counts of unlawfully dealing with a child in the first degree (id. § 260.20 [1]). A person is guilty of the latter crime when he

“knowingly permits a child less than [18] years old to enter or remain in or upon a place, premises or establishment where . . . activity involving controlled substances as defined by article [220] of [the Penal Law] ... is maintained or conducted, and he knows or has reason to know that such activity is being maintained or conducted” (id.).

Defendant and Rivera proceeded to a joint jury trial, where defendant testified that she understood why she was arrested— the police had “found the stuff’ in her bedroom. She claimed, however, to have been unaware of the presence of the narcotics and drug paraphernalia. According to Rivera, who also testified at trial, the narcotics belonged to him. At the trial’s conclusion, the jury acquitted defendant of the criminal drug possession with intent to sell and paraphernalia crimes, but convicted her of the lesser-included offense of seventh-degree criminal drug possession (heroin) (Penal Law § 220.03) and the four counts of unlawfully dealing with a child. As for Rivera, the jury also acquitted him of possession with intent to sell, but convicted him of seventh-degree criminal drug possession (both the heroin and the Suboxone), the three drug paraphernalia counts and the four counts of unlawfully dealing with a child.

Upon defendant’s appeal, the Appellate Division affirmed, holding that the trial evidence “supported] the conclusion that defendant exercised dominion and control, at least jointly with the codefendant, over the contraband”; and

“also established the elements of first-degree unlawfully dealing with a child (see Penal Law § 260.20 [1]), including the element of ‘activity involving controlled substances.’ Defendant knew or should have known that a large amount of heroin and drug paraphernalia were in her apartment, where four children under the age of 18 lived” (100 AD3d 446, 447 [1st Dept 2012]).

A Judge of this Court granted defendant leave to appeal (21 NY3d 1015 [2013]), and we now affirm.

First, the police discovered bundled glassines of heroin and drug paraphernalia in defendant’s apartment, located exclusively in and spread throughout her bedroom. Some of this contraband was in plain view; some was in a dresser drawer, mixed in with her personal belongings. Defendant was the apartment’s leaseholder and had been living there for many years. The jury could readily infer, from this and other proof presented, that defendant exercised dominion and control over the contraband found in her apartment “by a sufficient level of control over the area in which the contraband [wa]s found” (People v Manini, 79 NY2d 561, 573 [1992]). Additionally, there was sufficient evidence that defendant’s possession of the heroin was knowing, as “[generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is . . . on his premises” (People v Reisman, 29 NY2d 278, 285 [1971]).

Next, defendant argues that because she was only convicted of possessing illegal drugs, the evidence was insufficient to convict her of unlawfully dealing with a child, as that statute requires the alleged offender to know or have reason to know about ongoing commercial drug-related activity in a place where a child is present. Here, we need not and do not decide whether Penal Law § 260.20 (1) excludes possessory crimes because there is sufficient proof to establish defendant’s guilt even under her narrower interpretation of the statute.

The jury convicted Rivera of three counts of second-degree criminal use of drug paraphernalia. Such activity, related to drug trafficking and taking place in defendant’s apartment, is plainly commercial and ongoing. Further, there was sufficient evidence for the jury to conclude that Rivera was residing with defendant and that they jointly exercised dominion and control over the area in which the contraband was found. While defendant emphasizes her acquittal of criminally possessing paraphernalia, the People were only required to establish that she knowingly permitted children to remain on premises where she had every reason to know that this illegal drug activity was taking place (see William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 260.20).

Chief Judge Lippman and Judges Read, Pigott, Rivera and Abdus-Salaam concur; Judges Stein and Fahey taking no part.

Order affirmed, in a memorandum.


text:
    [27 NE3d 471, 3 NYS3d 757]
    Marta Alvarez, Appellant, v NYLL Management Ltd. et al., Respondents.
    Decided February 12, 2015
    APPEARANCES OF COUNSEL

      The Law Offices of James M. Sheridan, Jr., EC., Garden City (James M. Sheridan, Jr of counsel), and Hallock & Malerba, EC., Deer Park (Larry Hallock of counsel), for appellant.

      Baker, McEvoy, Morrissey & Moskovits, EC., Brooklyn (Colin F. Morrissey of counsel), for respondents.

      New York State Trial Lawyers Association, New York City CMichael S. Levine of counsel), for New York State Trial Lawyers Association, amicus curiae.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs. The Appellate Division correctly concluded that plaintiff failed to raise a triable issue of fact whether she suffered a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the underlying motor vehicle accident.

Concur: Chief Judge Lippman and Judges Read, Pigott, Rivera and Abdus-Salaam. Taking no part: Judges Stein and Fahey.


text:
    [27 NE3d 462, 3 NYS3d 748]
    In the Matter of Luz Solla, Respondent, v Elizabeth Berlin, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, Appellant, et al., Respondents.
    Argued January 15, 2015;
    decided February 19, 2015

      APPEARANCES OF COUNSEL

      Eric T. Schneiderman, Attorney General, New York City (Cecelia C. Chang, Barbara D. Underwood and Won S. Shin of counsel), for appellant.

      South Brooklyn Legal Services, Brooklyn {Peter A. Kempner, Meghan Faux, Daniel Barkley, Catherine F. Bowman and Edward Josephson of counsel), for respondent.

      Law Office of Peter Vollmer, PC., Sea Cliff {Peter Vollmer of counsel), amicus curiae.

      Richard B. Ancowitz, Albany, and Nadia Gareeb, Albany, for Robin Schimminger, amicus curiae.

      The Association of the Bar of the City of New York, New York City {Sebastian Riccardi, Andrew L. Kalloch, Kate Skolnick and Ian Spiridigliozzi of counsel), for The Association of the Bar of the City of New York, amicus curiae.

      White & Case, LLP, New York City {David Hille and Silvia Medina of counsel), and The Legal Aid Society, New York City {Kenneth Stephens of counsel), for The Legal Aid Society and others, amici curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, petitioner’s application for attorneys’ fees denied, and the certified question answered in the negative.

After the New York City Human Resources Administration (HRA) reduced petitioner’s shelter allowance, she requested a “fair hearing” before the New York State Office of Temporary and Disability Assistance (OTDA). At the hearing, HRA, a city agency, agreed to reverse its decision and restore petitioner’s lost benefits retroactively. OTDA, a state agency, issued a “Decision After Fair Hearing” consistent with HRA’s representation. HRA did not act immediately, and petitioner’s attorney contacted OTDA, seeking enforcement of its decision. OTDA responded by letter stating that, to its knowledge, HRA had complied.

Petitioner next commenced this CPLR article 78 proceeding seeking to compel HRA and another city agency to comply with, and OTDA to enforce, OTDA’s decision. There is no dispute that HRA subsequently restored petitioner’s shelter allowance and paid retroactive benefits. OTDA sought dismissal of the proceeding, since HRA had by then fully complied with OTDA’s ruling.

Petitioner then sought attorneys’ fees from the State under New York State’s Equal Access to Justice Act (EAJA) (CPLR art 86), which “create [d] a mechanism authorizing the recovery of counsel fees and other reasonable expenses in certain actions against the state of New York, similar to the provisions of federal law contained in 28 U.S.C. § 2412(d) and the significant body of case law that has evolved thereunder” (CPLR 8600). Petitioner contended that she should be deemed a “prevailing party” within the meaning of CPLR 8601 and 8602 (f) and therefore entitled to attorneys’ fees, because her initiation of the lawsuit was a catalyst for the relief she sought, namely HRA’s compliance.

Supreme Court dismissed the proceeding as moot, and denied her application for attorneys’ fees on the ground that no relief had been granted to her by the court, citing the United States Supreme Court’s decision in Buckhannon Board & Care Home, Inc. v West Virginia Dept. of Health & Human Resources (532 US 598 [2001]) and the First Department’s decision in Matter of Auguste v Hammons (285 AD2d 417 [1st Dept 2001]) (2011 NY Slip Op 33638[U] [Sup Ct, NY County 2011]). Buckhannon held, with respect to the fee-shifting provisions of the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990, that a fee claimant is a “prevailing party” only if he or she has obtained “some relief by the court” (Buckhannon, 532 US at 603). That decision, rejecting the catalyst theory, was applied to the “prevailing party” requirement of CPLR article 86 in Auguste.

On appeal, petitioner challenged only Supreme Court’s denial of her application for attorneys’ fees. The Appellate Division reversed Supreme Court’s order and judgment, insofar as appealed from, granted petitioner’s application for attorneys’ fees, and remanded for a hearing on their amount (106 AD3d 80 [1st Dept 2013]).

In doing so, the Appellate Division overruled its own decision in Auguste and, for the first time, recognized the catalyst theory (id. at 81-93). Observing that the New York State EAJA was modeled on the federal EAJA, the Court reasoned that New York courts must interpret the state statute according to the federal judiciary’s understanding of the federal EAJA as of 1989, when the New York statute was enacted. At that time, the catalyst theory was a standard generally accepted by United States Courts of Appeals in evaluating whether to award counsel fees under the federal EAJA (id. at 87-88; see Buckhannon, 532 US at 602 n 3 [citing decisions from federal courts of appeals recognizing the theory]). The Appellate Division reasoned, inter alia, that if the New York State Legislature had intended “to restrict the statute further by eliminating application of the theory, it would have incorporated that into the text” (106 AD3d at 87-88 [citations omitted]). One Justice dissented, agreeing with the majority that “we are not required to accept Buckhannon’s rejection of the catalyst theory,” but “fail[ing] to see any reason not to adopt Buckhannon’s sound logic” (id. at 96 [Sweeny, J., dissenting]).

Subsequently, the Appellate Division granted respondent leave to appeal to this Court, certifying the question whether its order had been properly made. We answer the certified question in the negative.

Assuming, without deciding, that the catalyst theory applies to the definition of a “prevailing party” for the purpose of CPLR 8601, petitioner cannot recover attorneys’ fees on that theory in any event. Under the pre-Buckhannon federal precedent that petitioner would have us apply, a fee claimant recovers attorneys’ fees only if his or her lawsuit prompted a change in position by the party from which claimant seeks reimbursement (see Citizens Coalition for Block Grant Compliance, Inc. v City of Euclid, 717 F2d 964, 966-967 [6th Cir 1983]; accord Omaha Tribe of Nebraska v Swanson, 736 F2d 1218, 1221 [8th Cir 1984]). “The party from which plaintiffs seek their fees and costs” must be “prompted into action” in order for fees to be recoverable (Idaho Conservation League, Inc. v Russell, 946 F2d 717, 721 [9th Cir 1991]).

Here, petitioner seeks payment of attorneys’ fees from the State of New York. But the State has consistently sided with petitioner regarding HRA’s reduction of her shelter allowance. The City altered its position following petitioner’s commencement of this proceeding, but the State did not. Consequently, petitioner could not recover attorneys’ fees under CPLR article 86 even if the catalyst theory were New York law. Therefore, the Appellate Division erred in granting petitioner’s application.

It is unnecessary for us to decide whether the catalyst theory is New York law, and we take no position on that question at this time.

Chief Judge Lippman and Judges Read, Pigott, Rivera and Abdus-Salaam concur; Judges Stein and Fahey taking no part.

Order reversed, without costs, petitioner’s application for attorneys’ fees denied and certified question answered in the negative, in a memorandum.


text:
    [27 NE3d 469, 3 NYS3d 755]
    The People of the State of New York, Respondent, v Robert J. Cooke, Appellant.
    Decided February 24, 2015

      APPEARANCES OF COUNSEL

      Davison Law Office, PLLC, Canandaigua {Mary P. Davison of counsel), for appellant.

      Brooks T. Baker, District Attorney, Bath {John C. Tunney of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court’s failure to make a finding of necessity for the stun belt’s use does not constitute an unwaivable mode of proceedings error (see People v Buchanan, 13 NY3d 1, 4 [2009]; see generally People v Hanley, 20 NY3d 601, 604 [2013]; People v Schrock, 108 AD3d 1221, 1224-1225 [4th Dept 2013], lv denied 22 NY3d 998 [2013], denied reconsideration 23 NY3d 1025 [2014]; see also People v Gamble, 18 NY3d 386, 396-397 [2012], rearg denied 19 NY3d 833 [2012]). Thus, as defendant never objected, and indeed expressly consented to wearing a stun belt at trial, he waived his contention that he was denied a fair trial on the ground that he was restrained by means of that security device (see People v Iannone, 45 NY2d 589, 600 [1978]; cf. Buchanan, 13 NY3d at 3). We have considered defendant’s remaining contentions and find them to be without merit.

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam and Stein concur; Judge Fahey taking no part.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, in a memorandum.


text:
    Edwin Davis et al., Appellants, v South Nassau Communities Hospital et al., Respondents.
    Submitted February 9, 2015;
    decided February 12, 2015
   Motion by the Medical Society of the State of New York et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judges Stein and Fahey taking no part.


text:
    In the Matter of Greater Jamaica Development Corporation et al., Respondents, v New York City Tax Commission et al., Appellants.
    Submitted February 2, 2015;
    decided February 12, 2015
   Motion by New York State Conference of Mayors and Municipal Officials for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judges Stein and Fahey taking no part.


text:
    In the Matter of Jemel M.A. SCO Family of Services, Respondent; Elizabeth C.B.A., Appellant, et al., Respondent. (Proceeding No. 1.) In the Matter of Deshawn C.B. SCO Family of Services, Respondent; Elizabeth C.B.A., Appellant, et al., Respondent. (Proceeding No. 2.) In the Matter of Charise C.K.A. SCO Family of Services, Respondent; Elizabeth C.B.A., Appellant, et al., Respondent. (Proceeding No. 3.) In the Matter of Rayn R.B.-O. SCO Family of Services, Respondent; Elizabeth C.B.A., Appellant, et al., Respondent. (Proceeding No. 4.) In the Matter of Imani F.B.-O. SCO Family of Services, Respondent; Elizabeth C.B.A., Appellant, et al., Respondent. (Proceeding No. 5.) In the Matter of Nasir M.A. SCO Family of Services, Respondent; Elizabeth C.B.A., Appellant, et al., Respondent. (Proceeding No. 6.)
    Submitted December 15, 2014;
    decided February 12, 2015
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.

Judges Stein and Fahey taking no part.


text:
    Victor Jordan, Individually and as Administrator of the Estate of Oswald Jordan, Deceased, Appellant, v Metropolitan Jewish Hospice et al., Defendants, and Roslyn L. Blackman et al., Respondents.
    Decided February 12, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judges Stein and Fahey taking no part.


text:
    In the Matter of the Accounting of Lawrence Kalik et al. In the Matter of the Accounting of Carl Wagman. Loretta Wagman, Appellant, v Lawrence Kalik et al., Respondents, and Chase Manhattan Bank, as Successor in Interest to Chemical Bank, Respondent, et al., Defendants.
    Submitted November 10, 2014;
    decided February 12, 2015
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed so much of the March 2012 Surrogate’s Court order dismissing the action transferred from Supreme Court, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the order sought to be appealed from does not finally determine the proceeding on the Surrogate’s Court accountings within the meaning of the Constitution (see Burke v Crosson, 85 NY2d 10, 15-16 [1995]).

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Everett M. Durant, Appellant.
    Submitted January 12, 2015;
    decided February 12, 2015
   Motion to vacate this Court’s December 8, 2014 preclusion order granted.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Hossam Elfeke, Appellant.
    Submitted January 20, 2015;
    decided February 12, 2015
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Arthur Frazier, Also Known as Troy Valentine, Also Known as Ray Williams, Also Known as Butchie Ketchum, Appellant.
    Submitted February 2, 2015;
    decided February 12, 2015
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from an order of a single Justice of the Appellate Division denying leave to appeal to that Court pursuant to CPL 460.15.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Andre Harrison, Appellant.
    Submitted February 9, 2015;
    decided February 12, 2015
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Appellant, v Frankie Hatton, Respondent.
    Submitted January 26, 2015;
    decided February 12, 2015
   Motion for assignment of counsel granted and Seymour James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the respondent on the appeal herein.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Appellant, v Robert L. Ingram, Respondent.
    Submitted February 9, 2015;
    decided February 12, 2015
   On the Court’s own motion, this Court’s decision of December 16, 2014 vacated [see 24 NY3d 1105 (2014)], remittitur recalled and when returned, it will be amended to read as follows: Appeal dismissed upon the ground that the criminal prosecution abated by reason of defendant’s death (see People v Ortiz, 77 NY2d 821 [1990]).

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Joel Joseph, Appellant.
    Submitted February 2, 2015;
    decided February 12, 2015
   Motion for assignment of counsel granted and Seymour James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Appellant, v Shane Morris, Respondent.
    Submitted February 9, 2015;
    decided February 12, 2015
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the respondent on the appeal herein.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Luis Ortiz, Appellant.
    Submitted January 20, 2015;
    decided February 12, 2015
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Stephen Pellegrino, Appellant.
    Submitted January 26, 2015;
    decided February 12, 2015
   Motion for assignment of counsel granted and Seymour James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Oscar Sanders, Appellant.
    Submitted January 26, 2015;
    decided February 12, 2015
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Appellant, v Glenn S. Smith, Respondent.
    Submitted January 26, 2015;
    decided February 12, 2015
   Motion for assignment of counsel granted and Richard N. Lentino, Esq., 138 West Main Street, Middletown, New York 10940 assigned as counsel to the respondent on the appeal herein.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Rhian Taylor, Appellant.
    Submitted February 2, 2015;
    decided February 12, 2015
   Motion for assignment of counsel granted only to the extent that Joel B. Rudin, Esq., care of Law Offices of Joel B. Rudin, 600 Fifth Ave., Tenth Floor, New York, NY 10020 is assigned without fee to represent appellant on the appeal herein. Counsel may, however, apply for reimbursement of necessary disbursements incurred in connection with the assignment.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York ex rel. Santo Gonzalez, Appellant, v Joseph T. Smith, as Superintendent of Shawangunk Correctional Facility, Respondent.
    Decided February 12, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judges Stein and Fahey taking no part.


text:
    In the Matter of the Claim of Kelly A. Preyer, Respondent. Irene S. Dische, Appellant; Commissioner of Labor, Respondent.
    Decided February 12, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judges Stein and Fahey taking no part.


text:
    Wells Fargo Bank, N.A., Respondent, v Viola Haizlip, Appellant, et al., Defendants.
    Decided February 12, 2015
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie where the order appealed from does not finally determine the action within the meaning of the Constitution (see NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).

Judges Stein and Fahey taking no part.


text:
    Richard Wysong, Appellant, v Farm Family Casualty Insurance Company et al., Respondents.
    Submitted December 22, 2014;
    decided February 12, 2015
   Motion, insofar as it seeks leave to appeal from the August 2014 Appellate Division order denying reconsideration and the October 2014 Appellate Division order denying leave to appeal, dismissed upon the ground that such orders do not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the February 2013 Appellate Division order of affirmance, dismissed for failure to demonstrate timeliness as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2).

Judges Stein and Fahey taking no part.


text:
    Hassan O.G. Alamin, Appellant, v Shake Uddin et al., Respondents.
    Submitted December 29, 2014;
    decided February 17, 2015
   Motion for reconsideration of this Court’s October 21, 2014 dismissal order dismissed as untimely (see 22 NYCRR 500.24 [b]) [see 24 NY3d 987 (2014)].

Judges Stein and Fahey taking no part.


text:
    In the Matter of Alan Golder, Appellant, v The People of the State of New York, Respondent.
    Submitted December 29, 2014;
    decided February 17, 2015
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.

Judges Stein and Fahey taking no part.


text:
    In the Matter of I-Conscious R. and Another, Children Alleged to be Abused. George S., Also Known as I-Sun A., Appellant; Administration for Children’s Services, Respondent.
    Submitted December 22, 2014;
    decided February 17, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.

Judges Stein and Fahey taking no part.


text:
    In the Matter of Jackson F. Suffolk County Department of Social Services, Respondent; Gabriel F., Appellant. (Proceeding No. 1.) In the Matter of Ella F. Suffolk County Department of Social Services, Respondent; Gabriel F., Appellant. (Proceeding No. 2.)
    Submitted December 15, 2014;
    decided February 17, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.

Judges Stein and Fahey taking no part.


text:
    In the Matter of Jerome S. Administration for Children’s Services, Respondent; Tazine R., Respondent. (Proceeding No. 1.) In the Matter of Kywayne F. Administration for Children’s Services, Respondent; Tazine R., Respondent. Tennille M. Tatum-Evans, Esq., Attorney for the Child, Nonparty Appellant. (Proceeding No. 2.)
    Submitted December 22, 2014;
    decided February 17, 2015
   Motion for leave to appeal dismissed upon the ground that appellant, having taken no appeal to the Appellate Division, may not appeal to the Court of Appeals from the Appellate Division order of affirmance.

Judges Stein and Fahey taking no part.


text:
    Nella Manko, Appellant, v David A. Gabay et al., Respondents. (And Other Actions.)
    Decided February 17, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5601).

Judges Stein and Fahey taking no part.


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Submitted January 5, 2015;
    decided February 17, 2015
   Motion for reconsideration of this Court’s November 18, 2014 dismissal order denied [see 24 NY3d 1009 (2014)]. Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it. Motion for poor person relief dismissed as academic.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Appellant, v Michael S. Brumfield, Respondent.
    Submitted May 27, 2014;
    decided February 17, 2015
   Motion to dismiss appeal denied.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York ex rel. Charles Washington, Appellant, v Patrick Griffin, Superintendent of Sullivan Correctional Facility, et al., Respondents.
    Submitted December 29, 2014;
    decided February 17, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.

Judges Stein and Fahey taking no part.


text:
    In the Matter of Kolien J. Richmond, Respondent, v Robert A. Perez, Appellant. (Proceeding No. 1.) In the Matter of Robert A. Perez, Respondent, v Kolien J. Richmond, Appellant. (Proceeding No. 2.)
    Submitted December 29, 2014;
    decided February 17, 2015
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order as affirmed the September 2013 Family Court order denying a motion to vacate a prior Family Court order, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.

Judges Stein and Fahey taking no part.


text:
    In the Matter of Saleh A. Ahmed, Appellant, v David H. Yin et al., Respondents.
    Submitted January 5, 2015;
    decided February 19, 2015
   Motion, insofar as it seeks leave to appeal from the November 2014 Appellate Division order, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judges Stein and Fahey taking no part.


text:
    Susan Aranoff, Respondent, v Gerald Aranoff, Appellant.
    Submitted January 12, 2015;
    decided February 19, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 1063 (2014)].

Judges Stein and Fahey taking no part.


text:
    In the Matter of the Claim of Samantha M. Armison, Respondent. Gannett Company, Inc., Appellant; Commissioner of Labor, Respondent. In the Matter of the Claim of Timothy P. Miller, Respondent. Gannett Company, Inc., Appellant; Commissioner of Labor, Respondent. In the Matter of the Claim of Leslie S. Luther, Respondent. Gannett Company, Inc., Appellant; Commissioner of Labor, Respondent. In the Matter of the Claim of Theron V. Wiggins, Respondent. Gannett Company, Inc., Appellant; Commissioner of Labor, Respondent. In the Matter of the Claim of Martin J. Redder, Respondent. Gannett Company, Inc., on Behalf of Gannett Satellite Information Network, Inc., Appellant; Commissioner of Labor, Respondent. In the Matter of the Claim of Jonathan R. Morris, Respondent. Gannett Company, Inc., Appellant; Commissioner of Labor, Respondent.
    (Claim No. 1.)
    (Claim No. 2.)
    (Claim No. 3.)
    (Claim No. 4.)
    (Claim No. 5.)
    (Claim No. 6.)
    Submitted January 20, 2015;
    decided February 19, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.

Judges Stein and Fahey taking no part.


text:
    In the Matter of Flintlock Construction Services, LLC, et al., Appellants, v Gretchen Weiss, Respondent.
    Submitted December 15, 2014;
    decided February 19, 2015
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the issues presented have become moot.

Judges Stein and Fahey taking no part.


text:
    Rebecca Geffner, Appellant, v Mercy Medical Center et al., Respondents.
    Submitted January 5, 2015;
    decided February 19, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 1040 (2014)].

Judges Stein and Fahey taking no part.


text:
    Gail C. Howard, Individually and as Administrator of the Estate of Scott R. Howard, Deceased, Respondent, v Craig Stanger et al., Appellants, et al., Defendant.
    Submitted January 5, 2015;
    decided February 19, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judges Stein and Fahey taking no part.


text:
    Johnathan Johnson, Appellant, v State of New York, Respondent.
    (Claim No. 114829.)
    Submitted January 5, 2015;
    decided February 19, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).

Judges Stein and Fahey taking no part.


text:
    Johnathan Johnson, Appellant, v State of New York, Respondent.
    (Claim No. 114212.)
    Submitted January 5, 2015;
    decided February 19, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).

Judges Stein and Fahey taking no part.


text:
    In the Matter of Paula Nelson, Appellant, v City of New York, Respondent, and Andes Town Board et al., Respondents.
    Submitted January 5, 2015;
    decided February 19, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 909 (2014)].

Judges Stein and Fahey taking no part.


text:
    Khanh T. Nguyen, Appellant, v Nemet Motors, Respondent.
    Submitted January 12, 2015;
    decided February 19, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 1038 (2014)].

Judges Stein and Fahey taking no part.


text:
    In the Matter of Nikole S., Respondent, v Jordan W., Appellant, et al., Respondents.
    Submitted January 20, 2015;
    decided February 19, 2015
   Motion for leave to appeal dismissed upon the ground that appellant, having taken no appeal to the Appellate Division, may not appeal to the Court of Appeals from the Appellate Division order of affirmance.

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Costandino Argyris, Appellant.
    Submitted January 12, 2015;
    decided February 19, 2015
   Motion for reargument denied [see 24 NY3d 1138 (2014)].

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v John A. DiSalvo, Appellant.
    Submitted January 5, 2015;
    decided February 19, 2015
   Motion for reargument denied [see 24 NY3d 1138 (2014)].

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Roy Gray, Appellant.
    Submitted February 2, 2015;
    decided February 19, 2015
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v William Looman, Appellant.
    Submitted January 26, 2015;
    decided February 19, 2015
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of County Court entered in this proceeding commenced in Village Court (see NY Const, art VI, § 3 [b]; CPLR 5602 [a]).

Judges Stein and Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Elias McFarland, Appellant.
    Submitted January 20, 2015;
    decided February 19, 2015
   Motion for reargument denied [see 24 NY3d 1053 (2014)].

Judges Stein and Fahey taking no part.


text:
    PS 157 Lofts LLC et al., Respondents, v Kimberly Austin et al., Appellants.
    Submitted January 5, 2015;
    decided February 19, 2015
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the November 2014 Appellate Division order appealed from does not finally determine the proceeding within the meaning of the Constitution.

Judges Stein and Fahey taking no part.


text:
    Vilma M. Sanchez, Respondent, v Farbod F. Hay et al., Appellants.
    Submitted January 20, 2015;
    decided February 19, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judges Stein and Fahey taking no part.


text:
    In the Matter of Michele M. Simms-Parris (Admitted as Michele Marie Simms-Parris), a Disbarred Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted January 5, 2015;
    decided February 19, 2015
   Motion for reargument denied [see 24 NY3d 1039 (2014)]. The order from which leave to appeal was sought is not an order of the type provided for in CPLR 5602 (a) (2). Motion for a stay dismissed as academic.

Judges Stein and Fahey taking no part.


text:
    Carlayne Sims, Appellant, v United States of America Governing Body et al., Respondents.
    Submitted January 12, 2015;
    decided February 19, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 1041 (2014)].

Judges Stein and Fahey taking no part.


text:
    In the Matter of P. David Soares, as District Attorney of Albany County, Respondent, v William A. Carter, as Judge of the City Court of the City of Albany, Appellant, and Colin Donnaruma et al., Respondents.
    Submitted February 17, 2015;
    decided February 19, 2015
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Stein taking no part.


text:
    Adam L. Walton, Appellant, v Strong Memorial Hospital et al., Respondents, et al., Defendants.
    Submitted February 17, 2015;
    decided February 19, 2015
   Motion by Healthcare Association of New York State, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Arthur Blake, Appellant, v State of New York, Respondent.
    Submitted January 5, 2015;
    decided February 24, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 1027 (2014)].

Judges Stein and Fahey taking no part.


text:
    Ryan J. Coutu, Respondent, v Andres Santo Domingo, Appellant.
    Submitted January 26, 2015;
    decided February 24, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Steven DeMilo et al., Appellants, v Weinberg Brothers, LLC, Respondent.
    Submitted January 26, 2015;
    decided February 24, 2015
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Sylvan Lawrence, Deceased. Richard S. Lawrence et al., Respondents, v Graubard Miller et al., Appellants, and Richard S. Lawrence et al., Intervenors-Respondents.
    Submitted December 8, 2014;
    decided February 24, 2015
   Motions for reargument denied with $100 costs and necessary reproduction disbursements (see 24 NY3d 320 (2014)].

Judge Abdus-Salaam taking no part.


text:
    Teddy Moore, Appellant, v Frank Guerra, Defendant, and Christopher Bramwell et al., Respondents.
    Submitted February 2, 2015;
    decided February 24, 2015
   Motion for reargument of motion for leave to appeal denied (see 24 NY3d 1114 (2015)].

Judges Stein and Fahey taking no part.


text:
    In the Matter of Kevin Morris, Appellant, v D. Venettozzi, Acting Director Special Housing Unit, et al., Respondents.
    Submitted December 8, 2014;
    decided February 24, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.

Judge Stein taking no part.


text:
    In the Matter of New York City Asbestos Litigation. Ruby E. Konstantin, Individually and as Executrix of Dave John Konstantin, Deceased, Respondent, v 630 Third Avenue Associates et al., Defendants, and Tishman Liquidating Corporation, Appellant.
    Submitted January 12, 2015;
    decided February 24, 2015
   Motion to dismiss appeal denied.


text:
    The People of the State of New York, Respondent, v Julian Silva, Appellant.
    Submitted December 15, 2014;
    decided February 24, 2015
   Motion for reargument denied [see 24 NY3d 294 (2014)].

Judge Abdus-Salaam taking no part.


text:
    Joseph Pipia et al., Respondents, v Turner Construction Company et al., Appellants, and J.E.S. Plumbing & Heating Corp., Respondent.
    Submitted December 8, 2014;
    decided February 24, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Rivera taking no part.


text:
    In the Matter of Otes G. Rodriguez, Appellant, v Thomas LaValley, as Superintendent of Clinton Correctional Facility, Respondent.
    Submitted December 29, 2014;
    decided February 24, 2015
   Motion for reconsideration of this Court’s May 1, 2014 dismissal order denied [see 23 NY3d 933 (2014)].

Judges Pigott and Stein taking no part.


text:
    Strauss Painting, Inc., Appellant-Respondent, v Mt. Hawley Insurance Company, Respondent-Appellant, and Metropolitan Opera Association, Inc., Respondent.
    Submitted January 5, 2015;
    decided February 24, 2015
   Motion for reargument denied [see 24 NY3d 578 (2014)].

Judges Stein and Fahey taking no part.


text:
    George Vieyra, Individually and on Behalf of All Others Similarly Situated, Appellant, v Penn Toyota, Ltd., et al., Respondents.
    Submitted December 29, 2014;
    decided February 24, 2015
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the Supreme Court order denying renewal, dismissed upon the ground that such portion of the order does not finally determine an action or proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


author: Read, J. Pigott, J.

text:
    [29 NE3d 215, 6 NYS3d 206]
    Julie Conason et al., Respondents, v Megan Holding, LLC, et al., Appellants.
    Argued January 13, 2015;
    decided February 24, 2015

      POINTS OF COUNSEL

      Marino Partners LLP, White Plains (Umar A. Sheikh and Misha M. Wright of counsel), for appellants.
    I. CPLR 213-a’s clear and unambiguous four-year statute of limitations precludes respondents’ action for residential rent overcharge because it is time-barred. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Cohen v Lord, Day & Lord, 75 NY2d 95; La Guardia v Cavanaugh, 53 NY2d 67; Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55; Association of Contr. Plumbers of City of N.Y. v Contracting Plumbers Assn. of Brooklyn & Queens, Inc., 302 NY 495; Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246; Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407; Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin., 15 NY3d 358; Matter

      of Cintron v Calogero, 15 NY3d 347.) II. The Appellate Division’s judge-made law retroactively applied to appellants Megan Holding, LLC and Emmanuel Ku exacts an ex post facto law proscribed by article I, § 10 of the US Constitution. (Rogers v Tennessee, 532 US 451; United States v Farris, 448 F3d 965; Weaver v Graham, 450 US 24; Ciafone v Kenyatta, 27 AD3d 143; Smith v Doe, 538 US 84; Landgraf v USI Film Products, 511 US 244; Calder v Bull, 3 US 386; Stogner v California, 539 US 607; Ross v Louise Wise Servs., Inc., 8 NY3d 478.) III. The Appellate Division erred in affirming that statutes of limitations are calculated backwards. (Enrico & Sons Contr. v Bridge-market Assoc., 252 AD2d 429.) IV. The Appellate Division erred in affirming the motion court’s misapplication of collateral estoppel to the Civil Court’s underlying findings of fraud on the dismissed rent overcharge counterclaim. (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481; Kaufman v Eli Lilly & Co., 65 NY2d 449; Petersen v Lysaght, Lysaght & Kramer, 250 AD2d 581; Alamo v McDaniel, 44 AD3d 149; Ryan v New York Tel. Co., 62 NY2d 494; Comi v Breslin & Breslin, 257 AD2d 754; Pollicino v Roemer & Featherstonhaugh, 277 AD2d 666; Sahn v AFCO Indus., 192 AD2d 480; Jackson v Board of Educ. of City of N.Y., 30 AD3d 57.) V. The Appellate Division erred in affirming respondents’ failure to carry their heavy burden of a particularized showing that (1) Emmanuel Ku is Megan Holding, LLC’s alter ego, who (2) used the LLC to commit a wrong against respondents, warranting the motion court’s piercing of the corporate veil. (First Bank of Ams. v Motor Car Funding, 257 AD2d 287; Sheridan Broadcasting Corp. v Small, 19 AD3d 331; Matter of Glenn [Redford], 233 AD2d 248; Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135; Matter of Island Seafood Co. v Golub Corp., 303 AD2d 892; Retropolis, Inc. v 14th St. Dev. LLC, 17 AD3d 209; TNS Holdings v MKI Sec. Corp., 92 NY2d 335; Anderson St. Realty Corp. v RHMB New Rochelle Leasing Corp., 243 AD2d 595.) VI. The Appellate Division erred in affirming and finding that any of Emmanuel Ku’s related corporations have any connection to respondents or the alleged transactions for rent overcharge, sufficient to pierce Megan Holding, LLC’s corporate veil. (Etex Apparel, Inc. v Tractor Intl. Corp., 83 AD3d 587; John John, LLC v Exit 63 Dev., LLC, 35 AD3d 540; Matter of Glenn [Redford], 233 AD2d 248.)

      Fishman & Mallon, LLP, New York City (James B. Fishman and Susan K. Crumiller of counsel), for respondents.
    I. Respondents’ rent overcharge claim was timely interposed.
      (Thornton v Baron, 5 NY3d 175; Matter of Partnership 92 LP v State of N.Y. Div. of Hous. & Community Renewal, 11 NY3d 859; Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin., 15 NY3d 358; Matter of Cintron v Calogero, 15 NY3d 347; Kirke La Shelle Co. v Armstrong Co., 263 NY 79.) II. The Appellate Division and the motion court correctly held that Megan Holding, LLC is collaterally estopped from challenging the Housing Court’s findings of fraud. (Feinberg v Boros, 99 AD3d 219; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65; Matter of Abady, 22 AD3d 71; Brown v Suggs, 39 AD3d 395; Pollicino v Roemer & Featherstonhaugh, 277 AD2d 666; Sahn v AFCO Indus., 192 AD2d 480; Jackson v Board of Educ. of City of N.Y., 30 AD3d 57.) III. The unrefuted evidence establishes a rent overcharge, even without the Housing Court’s findings of fact. (Matter of Partnership 92 LP v State of N.Y. Div. of Hous. & Community Renewal, 11 NY3d 859; 72A Realty Assoc. v Lucas, 101 AD3d 401.) IV. The Court correctly upheld summary judgment on respondents’ claim to pierce the corporate veil. (James v Loran Realty v Corp., 20 NY3d 918; Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135; Morpheus Capital Advisors LLC v UBS AG, 105 AD3d 145; Padilla v Edison Transp., Inc., 104 AD3d 518; Brito v DILP Corp., 282 AD2d 320; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 16 NY3d 775; Cobalt Partners, L.P. v GSC Capital Corp., 97 AD3d 35; Stewart Tit. Ins. Co. v Liberty Tit. Agency, LLC, 83 AD3d 532; Sound Communications, Inc. v Rack & Roll, Inc., 88 AD3d 523; Fantazia Intl. Corp. v CPL Furs N.Y., Inc., 67 AD3d 511.) V. The Court correctly upheld the award of treble damages and attorney’s fees. (.Matter of Miller v Division of Hous. & Community Renewal, 289 AD2d 20.)

      Legal Services NYC, Brooklyn (Edward Josephson of counsel), and The Legal Aid Society, New York City (Adriene Holder and Ellen Davidson of counsel), for Association for Neighborhood and Housing Development and others, amici curiae.
    I. The Appellate Division correctly applied this Court’s holding in Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin. (15 NY3d 358 [2010]) when it remanded the proceeding below to the Division of Housing and Community Renewal to investigate the legality of the base date rent. (Thornton v Baron, 5 NY3d 175.) II. Reversal of the holding below would encourage evasion of the rent laws and contribute to loss of affordable housing in low and moderate income communities in New York City.
   OPINION OF THE COURT

Read, J.

Julie Conason and Geoffrey Bryant (collectively, tenants) are the rent-stabilized tenants of an apartment in a residential building in Manhattan. Megan Holding, LLC is the building’s owner and tenants’ landlord. As described in this opinion, Conason asserted an overcharge claim against Megan in April 2009, almost 5V2 years after she occupied the apartment under a vacancy lease. The principal issue on this appeal is whether CPLR 213-a’s four-year statute of limitations completely bars this claim. Because of the unrefuted proof of fraud in the record, we conclude that section 213-a merely limits tenants’ recovery to those overcharges occurring during the four-year period immediately preceding Conason’s rent challenge, and that the lawful rent on the base date must be determined by using the default formula devised by the New York State Division of Housing and Community Renewal (DHCR or the agency) (Thornton v Baron, 5 NY3d 175 [2005, Smith and Read, JJ., dissenting]; Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin., 15 NY3d 358 [2010, Smith, Graffeo and Read, JJ., dissenting]).

L

In October 2003, Conason signed a two-year lease, beginning on November 1, 2003, at a monthly rent of $1,800. The lease indicated that the legal regulated rent for the apartment was $2,000 per month, reduced to $1,800, “subject to any lawful adjustments,” by virtue of a temporary rent concession rider. The lease did not include a rent stabilization rider as an attachment. This rider, required for vacancy leases subject to the Rent Stabilization Code, does not modify or become part of the lease. Instead, it notifies the rent-stabilized tenant of the prior legal regulated rent and explains how the vacancy lease’s rent was computed (see 9 NYCRR 2522.5 [c] [1] [i]). Conason renewed the lease for two years, beginning November 1, 2005, at a monthly rent of $1,899; she signed another renewal lease for one year, beginning on November 1, 2007, at a monthly rent of $1,955.97. Conason paid rent in accordance with this lease for each month from November 2007 through May 2009.

The Summary Proceeding

On April 9, 2009, Megan commenced a summary proceeding against Conason in Civil Court, Housing Part, for nonpayment of rent; by answer dated April 24, 2009, Conason counterclaimed, as relevant here, for breach of the warranty of habitability and rent overcharge. In a decision and order dated June 24, 2009, Civil Court dismissed the proceeding without prejudice, retained the counterclaim for breach of the warranty of habitability and declined to entertain the counterclaim for rent overcharge; by decision and order dated October 30, 2009, however, the Judge granted tenants’ motion to reargue and concluded that the rent overcharge counterclaim was, in fact, properly before him. Additionally, he allowed tenants, now represented by counsel, to amend their answer to add a counterclaim for attorneys’ fees, and scheduled a trial date of December 9, 2009.

When the parties appeared on December 9th before another judge, Megan sought an adjournment for its new attorney to prepare for trial. This attorney was at least the third lawyer to represent Megan in the summary proceeding. Over tenants’ attorney’s objection, the Judge granted the adjournment on condition that Megan pay tenants $1,125 to ameliorate the legal expenses they had incurred on account of the eve-of-trial substitution. She also ordered Megan to correct multiple housing violations in tenants’ apartment before the new trial date, January 20, 2010. The Judge heard testimony on that date, and on March 3, April 19 and 29, and June 10 and 11, 2010. She then adjourned the trial until July 27, 2010.

After the last trial day in June, Megan’s attorney moved to withdraw. He apparently had informed Megan of his intention to do so several months earlier. By order dated July 26, 2010, the Judge granted the motion, expressing confidence that “retiring counsel believes in good faith that he cannot ethically continue as [Megan’s] counsel”; however, she denied his request to adjourn the trial for replacement counsel to be brought on board and up to speed. At the time, Emmanuel Ku, the 99% shareholder in Megan, was on the witness stand pursuant to tenants’ subpoena.

Ku appeared on July 27th to resume his testimony, but Megan had not substituted counsel. Civil Court, at the request of tenants’ attorney, who wanted to avoid creating an appellate issue, then ordered a continuation of the trial for seven weeks, until September 15, 2010, to permit Megan time to engage a new lawyer. When Megan failed to do so, the Judge closed the record and set a date for posttrial briefs. An attorney described as Megan’s “outside general counsel” submitted Megan’s brief; this attorney had also appeared on July 26th to oppose Megan’s then trial attorney’s motion to withdraw.

In a decision and order dated April 8, 2011, Civil Court dismissed the overcharge claim, without prejudice, for failure of proof, commenting that “[although [tenants] established that an actionable overcharge occurred, they failed to prove the amount of the legal regulated rent and the amount of the overcharge.” The Judge then explained why she had concluded that “an actionable overcharge” was shown; specifically, although Megan registered someone named Suzuki Oki with DHCR as the apartment’s occupant under a two-year lease running from April 1, 2003 through March 31, 2005 at a monthly rent of $1,000, tenants had presented “persuasive evidence” that no one named Suzuki Oki had ever lived in the apartment.

First, a witness from the utility company testified that an electricity and gas account in the name of Candida Vasquez was closed by the tenant on May 30, 2003, and there was no active account for the apartment until Conason opened one on November 1, 2003. Second, the building’s superintendent in 2003 testified that the apartment’s last occupants before Conason were Vasquez and Jacobo Rivera; that no one lived in the apartment between their departure and Conason’s arrival; and that he did not know of any person named Suzuki Oki. A neighbor similarly testified that the apartment was vacant in the summer and fall of 2003. Additionally, DHCR records disclosed that Rivera was the registered tenant in 2002 under a lease expiring on September 30, 2003. As noted by the Judge later in her opinion, DHCR’s rent registration records identify the legal regulated rent for tenants’ apartment in 2002 as $475.24 a month. As for Ku, Civil Court summarized his testimony as follows:

“[Ku] . . . testified that he had no records at all for Suzuki Oki. He had no lease, no rental application, and no evidence of payment by Suzuki Oki. He did not establish a security deposit account for Suzuki Oki and he claimed she paid him only in cash. He also claimed she remained in the apartment for only two months . . . Finally, [Ku] testified that although Oki was in the apartment for only two months, he completely renovated the apartment and claimed a rent increase for individual apartment improvements both before her tenancy and after it.”

The Judge called Ku’s testimony “entirely incredible.”

The Judge next commented that “[o]rdinarily” a rent overcharge claim is governed by a four-year statute of limitations. Further, “[t]he legal regulated rent is defined as the rent actually charged and paid on the base date, four years prior to the interposition of the overcharge claim, plus any legal increases taken thereafter.” Here, she opined, the claim was interposed on April 9, 2009, when the summary nonpayment proceeding commenced, which made April 9, 2005 the base date, and the evidence failed to show any impermissible rent increases after that date.

The Judge then cited Grimm for the proposition that “where the rent on the base date is affected by fraud, the DHCR (and, by implication, [Civil Court], which has concurrent jurisdiction with the DHCR over rent overcharge claims) has an obligation to investigate the legality of the base date rent.” She opined that Grimm “clearly . . . appli[ed]” because Megan “created an entirely fictitious tenant [i.e., Suzuki Oki] and at least one entirely fictitious apartment renovation in 2003 in order to boost the regulated rent from $475.24 per month ... to $1[,]800.00.” Consequently, the “rent on the base date was obviously affected by [Megan’s] fraud.”

Referring to Thornton, the Judge reiterated that she was required to dismiss tenants’ overcharge claim without prejudice because they had not submitted proof of the lowest rent charged for a comparable apartment on the base date (Thornton, 5 NY3d at 179-180, 180 n 1 [where no reliable rent history is available, the courts must apply DHCR’s default formula and set the rent on the base date as the lowest rent charged for a rent-stabilized apartment with the same number of rooms in the same building as the subject apartment]). The Judge did, however, find “ample evidence” that Megan had breached the warranty of habitability from January 2004 through the time of trial. Accordingly, Civil Court awarded tenants damages in the principal sum of $23,249.76 in rent abatement, and ordered Megan to correct any remaining outstanding code violations on or before May 15, 2011. And after a hearing, on July 6, 2011, Civil Court also awarded attorneys’ fees to tenants in the principal sum of $53,193.75.

Megan appealed both the April 8th and July 6th orders and the judgments entered thereon. By decision dated November 15, 2012, the Appellate Term dismissed the appeal from the April 8th order and judgment, observing that no appeal lies from a default, which is what occurred, “as essentially conceded by [Megan], a limited liability company [that] failed to appear at trial by replacement counsel, despite ample opportunity to do so” (37 Misc 3d 135[A], 2012 NY Slip Op 52117[U], *1 [App Term, 1st Dept 2012]). The court modified the July 6th judgment to reduce the award of attorneys’ fees from $53,193.75 to $44,200.19 to correct a mathematical error.

This Lawsuit

On June 13, 2011, tenants commenced this action against Megan and Ku (collectively, defendants), seeking a money judgment for rent overcharge, including treble damages “for the period April 2007 to April 2009” for willful rent overcharge, and attorneys’ fees. By motions dated June 15, 2012, the parties separately sought summary judgment. Tenants requested summary judgment on their overcharge cause of action and attorneys’ fees. They also asked Supreme Court for a declaration piercing the corporate veil of Megan to reach Ku’s personal assets. Defendants sought dismissal of the complaint and an award of costs, disbursements and attorneys’ fees.

In a decision and order dated October 10, 2012, Supreme Court granted tenants summary judgment against defendants on the issue of liability with respect to their overcharge claim and directed an assessment of damages; ordered the issue of reasonable attorneys’ fees held in abeyance until damages were determined; and denied defendants’ motion for summary judgment (2012 NY Slip Op 32625[U] [Sup Ct, NY County 2012]). Citing Matter of Cintron v Calogero (15 NY3d 347 [2010]), the Judge first held that tenants’ claim was not time-barred because “rather than calculating the statutory period from the commencement of the overcharge, such claims are determined backwards, from the date of the first claim of an overcharge” (2012 NY Slip Op 32625 [U], *8). Like Civil Court, Supreme Court identified April 9, 2005 — four years prior to the date when Megan commenced the summary proceeding — as the base date. The Judge concluded that although the rent charged for the comparable apartment proposed by tenants (and not disputed by defendants) was the lawful rent on the base date, tenants did not make clear whether they had actually received any portion of the rent abatement awarded by Civil Court, or had considered any lawful rent increases over the relevant four-year period. She therefore decided to conduct a hearing to decide the amount of tenants’ overcharge damages.

Next, Supreme Court concluded that Megan had a full and fair opportunity to be heard in the Civil Court proceeding and was therefore “collaterally estopped from challenging the Civil Court’s determination that the base date ... is April 9, 2005 and that the rent charged to [tenants] was fraudulently established” {id. at *11-12). Further, in light of the fraud, tenants were entitled to both treble damages and attorneys’ fees. Finally, the Judge held that tenants had met their burden to pierce the corporate veil and therefore Ku was personally liable for their damages. She emphasized that Ku owned 99% of Megan, which fraudulently set a rent for tenants’ apartment to their detriment.

Upon defendants’ appeal, the Appellate Division unanimously affirmed (109 AD3d 724 [1st Dept 2013]). Citing its decision in Grimm (68 AD3d 29 [1st Dept 2009]) and our decision in Thornton, the Court held that “the four-year statute of limitations is not a bar in a rent overcharge claim where there is significant evidence of fraud on the record”', and that Supreme Court “correctly found that defendants were collaterally estopped from arguing that no fraud existed [,] . . . [and] properly determined the base rent based on the default formula, and deferred the determination of the amount of the overcharge for a hearing” (109 AD3d at 726 [emphasis added and citation omitted]). The Court further concluded that Supreme Court had “properly pierced the corporate veil,” noting that there was “evidence that, through Megan, Ku fraudulently set a rent for [tenants’] apartment and that [tenants] were financially injured thereby”; and “properly awarded treble damages and attorneys’ fees” {id. [citation omitted]). On December 12, 2013, the Appellate Division denied defendants’ motion to reargue and certified the following question to us: “Was the order of [the Appellate Division], which unanimously affirmed the order of Supreme Court, properly made?”

IL

The Four-Year Statute of Limitations

CPLR 213-a fixes a four-year statute of limitations for claims of residential rent overcharge; specifically, this provision states that

“[a]n action on a residential rent overcharge shall be commenced within four years of the first overcharge alleged and no determination of an overcharge and no award or calculation of an award of the amount of any overcharge may be based upon an overcharge having occurred more than four years before the action is commenced. This section shall preclude examination of the rental history of the housing accommodation prior to the four-year period immediately preceding the commencement of the action” (emphasis added; see also Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-516 [a] [2]; Rent Stabilization Code [9 NYCRR] §§ 2520.6 [f]; 2526.1 [a] [2]).

Defendants interpret section 213-a to mean that “after four years of having first paid an allegedly unlawful rent, recovery for rent overcharge is time[-]barred” (emphasis added). Stated slightly differently, they take the position that an overcharge claim invariably accrues when a tenant first pays allegedly unlawful rent. Consequently, they reason, because Conason’s tenancy began on November 1, 2003, the statute of limitations on tenants’ overcharge claim expired on October 31, 2007, about a year and a half before Megan commenced the summary nonpayment proceeding. Conversely, tenants contend that they may recover any overcharges that they paid during the four-year period immediately preceding Conason’s rent challenge. Our decisions in Thornton and Grimm dictate the resolution of the parties’ dispute about how the four-year statute of limitations in CPLR 213-a works in this case.

The building owner in Thornton entered into a nonstabilized lease with Baron in 1992, ostensibly permitted as a temporary exemption from rent stabilization for nonprimary residences. Baron, whose initial monthly rent was $2,400, almost immediately sublet the apartment to the Thorntons at the still higher initial rent of $3,250 per month. Baron never lived in the apartment and the Thorntons always lived there as full-time residents. Although the Thorntons were willing participants in this scheme to skirt rent stabilization, they sued Baron in 1996, claiming rent overcharges, and amended their complaint in November 2000 to add the owner as a named defendant. We were required to decide the proper way to determine the apartment’s legal regulated rent.

The Thorntons contended that their rent should be $507.85 per month, the legal regulated rent in 1992, immediately preceding Baron’s illusive nonprimary tenancy. The owner contended that the courts were obligated to use $2,496 per month, the rent charged to Baron in 1996 and reflected in the annual registration statement filed with DHCR on July 31, 1996, i.e., four years before the Thorntons sued the owner. In making this argument, the owner relied on the Rent Regulation Reform Act of 1997 (RRRA) (L 1997, ch 116), which “clarified and reinforced the four-year statute of limitations applicable to rent overcharge claims by limiting examination of the rental history of housing accommodations prior to the four-year period preceding the filing of an overcharge complaint” (Thornton, 5 NY3d at 180 [citation omitted]). A base date in 1996 would have eliminated any possibility for the Thorntons to recover overcharges from the owner because increases and adjustments of the rent from 1996 to 2000 appear to have been lawful.

We disagreed with both approaches, and held that DHCR should use its default formula to determine the lawful rent in 1996 (id. at 179-181). The illusory nature of Baron’s tenancy was the decision’s raison d’etre. We commented that “[rjeflecting an attempt to circumvent the Rent Stabilization Law in violation of the public policy of New York, the Baron lease was void at its inception”; and “because the rent it purported to establish was therefore illegal, the 1996 rent registration statement listing this illegal rent was also a nullity” (id. at 181).

Significantly, the Thorntons did not sue the owner within “four years of having first paid an allegedly unlawful rent,” as defendants and the dissent insist CPLR 213-a mandates. Indeed, they waited more than seven years. Defendants point out that the Thorntons sued Baron, the tenant, within four years after they commenced their tenancy. We specifically “reject[ed],” however, “[the Thorntons’] contention that their amended complaint against [the owner] should relate back to the original complaint filed against [Baron] in October 1996” (id. at 180 n 2). And we at least implicitly rejected the owner’s protest that because the Thorntons’ overcharge claim arose in 1992, we were flouting the legislature’s intent, when it enacted the RRRA, to make sure that owners were not left forever potentially liable for overcharge claims; specifically, we declined to read the four-year limitations period in a way that would allow “a landlord whose fraud remains undetected for four years— however willful or egregious the violation — [to], simply by virtue of having filed a registration statement, transform an illegal rent into a lawful assessment that would form the basis for all future rent increases” (id. at 181).

The dissent criticized the majority for “upholding] a challenge to the amount of rent set forth in a registration statement, although the challenge was brought more than four years after the registration statement was filed”; and for taking an approach that “destroy [ed] the effectiveness of the four-year time limitation, which has no point unless it protects illegal rents against challenge” (id. at 182). Additionally, the dissent observed that “[i]f a rent is not illegal, a challenge will fail anyway and the four-year limit is unnecessary” (id.). Further, “the [Thorntons’] remedy was to challenge the rent established by the 1992 lease within four years, and nothing prevented them from doing so” (id. at 183 [emphasis added]). This, of course, is the same position espoused by defendants and the dissent in this case.

Next, we were asked in Grimm “whether the rationale employed in [Thornton], which allowed the parties to look back farther than four years, applies in a situation where it is alleged that the standard base date rent is tainted by fraudulent conduct on the part of a landlord” (Grimm, 15 NY3d at 362). We answered in the affirmative, concluding that “such base date rent may not be used as a basis for calculating subsequent regulated rent if fraud is indeed present” {id. [emphasis added]).

The apartment in Grimm was registered as rent-stabilized in 1999 at a legal regulated rent of $578.86. In 2000, the landlord increased the rent to $2,000 per month, but informed the incoming tenants that if they agreed to make certain repairs and improvements, the monthly rent would be reduced to $1,450; they agreed to this arrangement. When Grimm moved into the apartment in 2004, she also paid rent of $1,450 per month. In April 2005, she entered into a renewal lease at a monthly rent of $1,500.75. Grimm subsequently filed a rent overcharge complaint with DHCR in July 2005; she complained that the “owner is fraudulently renting [the] apartment as a non-rent stabilized unit and raised [the] rent illegally in 2005. [The] [i]nitial 2004 rent is also illegal.” When DHCR denied Grimm’s complaint because the rent adjustments after the base date (July 2001) were lawful, she brought a CPLR article 78 proceeding to challenge the agency’s determination.

DHCR argued that Thornton should be limited to “the narrow set of circumstances described in that case . . . involving illusory tenancies” {id. at 366). We disagreed, and held that “where the overcharge complaint alleges fraud . . . DHCR has an obligation to ascertain whether the rent on the base date is a lawful rent,” and that DHCR had not met this obligation because “there existed substantial indicia of fraud on the record,” yet DHCR “blindly us[ed] the rent charged on the date four years prior to the filing of the rent overcharge claim” {id.).

We cautioned that

“[o]ur holding should not be construed as concluding that fraud exists, or that the default formula should be used in this case. Rather, we merely conclude that DHCR acted arbitrarily in disregarding the nature of [Grimm’s] allegations and in using a base date without, at a minimum, examining its own records to ascertain the reliability and the legality of the rent charged on that date” (id. at 366-367).

Further, “[generally, an increase in the rent alone will not be sufficient to establish a colorable claim of fraud, and a mere allegation of fraud alone, without more, will not be sufficient to require DHCR to inquire further” (id. at 367 [internal quotation marks omitted]).

The dissent accused the majority of going “far beyond” Thornton and Cintron, a case where two rent reduction orders issued within four years of the start of the rent-stabilized tenancy remained in effect when the tenant filed an overcharge complaint more than a decade later. In the dissent’s view, the majority had improperly equated “fraud” with a willful overcharge, and if it had not essentially repealed the four-year limitations period — a charge the majority took pains to reject — it had created a situation where, if fraud is alleged and substantial indicia of fraud exist on the record, DHCR would be compelled to conduct a “mini-litigation ... to figure out whether the overcharge was ‘fraudulent’ enough to escape the time limit” (id. at 369).

Here, tenants do not just make a generalized claim of fraud. They instead advance a colorable claim of fraud within the meaning of Grimm — i.e., tenants alleged substantial evidence pointing to the setting of an illegal rent in connection with a stratagem devised by Megan to remove tenants’ apartment from the protections of rent stabilization (compare Matter of Partnership 92 LP v State of N.Y. Div. of Hous. & Community Renewal, 11 NY3d 859, 860 [2008] [where there was “ample basis” in the record for DHCR to “conclude that, in arguing for a higher base rent, the owner had relied on an illusory tenancy,” the agency properly set the base rent using its default formula], with Matter of Boyd v New York State Div. of Hous. & Community Renewal, 23 NY3d 999 [2014] [DHCR properly declined to examine the apartment’s rental history for fraud where a tenant merely alleged that the registered monthly rent increased from $572 in July 2004 to $1,750 in October 2004]). In light of Thornton and Grimm, Supreme Court in this case properly considered tenants’ counterclaim alleging rent overcharges notwithstanding expiration of the four-year statute of limitations to which such claims are generally subject (see Mozes v Shanaman, 21 AD3d 854 [1st Dept 2005], lv denied 6 NY3d 715 [2006] [CPLR 213-a barred the plaintiff sublessees’ overcharge complaints brought more than four years after each of their separate tenancies commenced]).

The dissent protests that neither Thornton nor Grimm carved out a fraud exception from CPLR 213-a’s bar of overcharge claims interposed more than four years after the first overcharge alleged, and that in Thornton we “avoided” this question (dissenting op at 20). We hardly avoided the question, however, as we allowed the Thorntons to pursue a lawsuit against the owner for overcharges more than seven years after the first overcharge alleged, over the owner’s strong objections. The dissent in Thornton certainly recognized this when remonstrating that the Thorntons should have “challenge [d] the rent established by the 1992 lease within four years” (Thornton, 5 NY3d at 183). Similarly, although the dissent frets that our decision today “will have several serious and troublesome ramifications” (dissenting op at 21), the potential untoward consequences mentioned are the same as those identified in the Thornton and Grimm dissents. In short, the arguments advanced and policy concerns expressed by the dissent here were considered and rejected by the majorities in Thornton and Grimm, as the dissenting opinions in those cases make abundantly clear.

Collateral Estoppel

Defendants argue that the lower courts incorrectly applied the doctrine of collateral estoppel to foreclose them from contesting Civil Court’s findings of fraud, which underpin the Judge’s determination of liability and the awards of treble damages and attorneys’ fees. Collateral estoppel comes into play when four conditions are fulfilled:

“(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits” (Alamo v McDaniel, 44 AD3d 149, 153 [1st Dept 2007], citing Ryan v New York Tel. Co., 62 NY2d 494 [1984], and Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]).

Civil Court seems to have made findings of fraud to support the conclusion that tenants had shown “an actionable overcharge.” The Judge nonetheless dismissed tenants’ overcharge claim, without prejudice, because they had not submitted proof of the lawful rent on the base date, as is necessary to compute overcharge damages. Consequently, Civil Court’s findings of fraud are not entitled to preclusive effect because two of the four prerequisites for collateral estoppel are unmet: the issues in Civil Court (breach of the warranty of habitability) and Supreme Court (evidence of fraud sufficient to render the rent on the base date unreliable) are not identical (the first condition), and findings of fraud were not necessary to support the judgment entered on the April 8th order, which awarded tenants rent abatement on account of Megan’s breach of the warranty of habitability and directed Megan to remedy code violations (the fourth condition).

As tenants urge, however, the trial record in Civil Court is replete with evidence of the illegality of the rent charged by Megan for tenants’ apartment on the base date. This evidence is unrefuted. And Megan enjoyed ample opportunity to contest tenants’ proof at trial, despite defendants’ protestations to the contrary. As a result, whatever the minimum scope of the inquiry that must be made by the courts or DHCR to resolve an overcharge claim where fraud has been alleged and there exist substantial indicia of fraud on the record, and whatever minimum quantum of evidence is required for a tenant to establish fraud sufficient to taint the reliability of the rent on the base date (see Grimm, discussed earlier), these thresholds have been crossed here: Civil Court made extensive findings of fraud based on a record developed at a trial, which afforded both sides the opportunity (even though shunned by defendants) to submit evidence and present and cross-examine witnesses regarding the apartment’s rental history.

Piercing the Corporate Veil

Generally, a plaintiff seeking to pierce the corporate veil must show that “(1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiffs injury” (Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141 [1993]). Here, questions of fact remain about whether Ku, through his undoubted domination of Megan, abused the corporate form to commit a wrong or fraud causing injury to tenants.

We have reviewed defendants’ remaining arguments and consider them to be meritless.

Accordingly, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed, and the certified question answered in the negative.

Pigott, J.

(dissenting). The majority holds, apparently on the basis of Thornton v Baron (5 NY3d 175 [2005]) and Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off of Rent Admin. (15 NY3d 358 [2010]), that because the tenants “advance a colorable claim of fraud within the meaning of Grimm . . . Supreme Court in this case properly considered tenants’ counterclaim alleging rent overcharges notwithstanding expiration of the four-year statute of limitations to which such claims are generally subject” (majority op at 16). Thornton and Grimm do not support that conclusion, and there are strong policy considerations why.

In Thornton, this Court held that a lease provision circumventing rent stabilization was void as against public policy, and that the rent registration statement in effect on the base date listing the illegal rent was “a nullity” (Thornton, 5 NY3d at 181). We instructed DHCR to use a default formula to calculate the rent on the base date, which “uses the lowest rent charged for a rent-stabilized apartment with the same number of rooms in the same building on the relevant base date” (id. at 180 n 1). The Court expressly noted that “[o]nly one question is before us: How is the legal regulated rent of the apartment to be established?” (Id. at 180.) The majority opinion did not decide the statute of limitations issue — the lawsuit was brought more than seven years after the first alleged overcharge — and indeed the dissent pointed out that the majority “ignore[d] the four-year limitation” (id. at 183 [Smith and Read, JJ., dissenting]).

In Grimm, we held that where “substantial indicia of fraud [exist] on the record” and “the overcharge complaint alleges fraud, . . . DHCR has an obligation to ascertain whether the rent on the base date is a lawful rent” (Grimm, 15 NY3d at 366). In that case, however, petitioner’s action was not barred by the statute of limitations, since it was brought well within four years following the first alleged rent overcharge. The question was whether DHCR could examine the rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint, so as to determine whether the rent on the base date was itself an overcharge. We said it could and should, but, necessarily, we did not address the statute of limitations. The Court “merely conclude[d] that DHCR acted arbitrarily in disregarding the nature of petitioner’s allegations and in using a base date without, at a minimum, examining its own records to ascertain the reliability and the legality of the rent charged on that date” (id. at 367).

The appeal before us now raises the question the Court avoided in Thornton and had no need to address in Grimm, namely whether CPLR 213-a precludes an action on a residential rent overcharge commenced more than four years after the first alleged overcharge. Yet, the majority gives no justification for its holding other than the two abovementioned Court of Appeals cases that do not support it.

The statute is abundantly clear. Under CPLR 213-a, as amended in 1997:

“[a]n action on a residential rent overcharge shall be commenced within four years of the first overcharge alleged and no determination of an overcharge and no award or calculation of an award of the amount of any overcharge may be based upon an overcharge having occurred more than four years before the action is commenced. This section shall preclude examination of the rental history of the housing accommodation prior to the four-year period immediately preceding the commencement of the action” (emphasis added).

Regardless of whether the action is brought as an administrative or judicial claim, “a rent overcharge claim is subject to a four-year statute of limitations” (Matter of Cintron v Calogero, 15 NY3d 347, 353 [2010]; see also e.g. Matter of Brinckerhoff v New York State Div. of Hous. & Community Renewal, 275 AD2d 622 [1st Dept 2000], lv denied 96 NY2d 712 [2001]; Mozes v Shanaman, 21 AD3d 854 [1st Dept 2005], lv denied 6 NY3d 715 [2006]; Direnna v Christensen, 57 AD3d 408 [1st Dept 2008]).

The majority now rewrites the statute, so as to delete the first clause (“[a]n action on a residential rent overcharge shall be commenced within four years of the first overcharge alleged”), with the result that “section 213-a merely limits tenants’ recovery to those overcharges occurring during the four-year period immediately preceding Conason’s rent challenge” (majority op at 6). In effect, the Court has simply removed the statute of limitations from the statute. In doing so, it overlooks the well-established principle that, irrespective of whether the misconduct alleged is minor or heinous, “actions are subject to the time limits created by the Legislature” and “[a]ny exception to be made to allow these types of claims to proceed outside of the applicable statutes of limitations would be for the Legislature” to enact (Zumpano v Quinn, 6 NY3d 666, 677 [2006]).

The majority’s decision will have several serious and troublesome ramifications. Rent records will be subject to challenge indefinitely. Property owners and buyers will have no certainty as to the value of residential rental property. Landlords will have to keep evidence of rent charges indefinitely, in order to preserve their ability to defend against fraudulent rent overcharge claims. And endless litigation will ensue concerning whether tenants are making “a colorable claim of fraud within the meaning of Grimm,” before any complaint challenging years-old rents can be dismissed.

I would reverse the order of the Appellate Division and hold that Conason’s complaint should have been dismissed as barred by the statute of limitations. Accordingly, I would not reach the collateral estoppel and piercing the corporate veil issues and I do not join the Court’s opinion as to the merits of those claims.

Chief Judge Lippman and Judges Rivera and Abdus-Salaam concur; Judge Pigott dissents and votes to reverse and dismiss the complaint in an opinion; Judges Stein and Fahey taking no part.

Order modified, without costs, by remitting to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed, and certified question answered in the negative.

      . Megan’s petition did not include a demand for rent after April 2009, and Megan conceded at trial that all rent had been paid through May 2009, thus satisfying the demand in its petition.

      . At some point during the course of this litigation, Megan added Bryant, Conason’s husband, as a party. Conason and Bryant apparently were not married until after Conason’s tenancy began.

      . As noted previously, Conason first alleged an overcharge in a counterclaim in her answer, dated April 24, 2009. CPLR 203 (d) provides that “[a] defense or counterclaim is interposed when a pleading containing it is served.” Here, the record on appeal does not disclose when the answer was served, although presumably this happened shortly after April 24th. Whether the base date falls early or late in the month of April 2005 would seem to make no practical difference.

      . The record discloses that the monthly rent for this apartment in April 2005 was $180.92.

      . Defendants similarly contend that the Appellate Division improperly allowed treble damages to be recovered on overcharge claims interposed more than two years after the first overcharge alleged. But that Court did not discuss treble damages other than to state that Supreme Court properly awarded them (and attorneys’ fees) because defendants failed to prove by a preponderance of the evidence that the rent overcharge was not willful (109 AD3d at 726-727). Tenants’ complaint sought treble damages “for the period April 2007 to April 2009” (i.e., roughly, the two years before Conason counterclaimed to recover overcharges) (see Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-516 [a] [2] [i]). In any event, Supreme Court has not yet fixed tenants’ overcharge damages, treble or otherwise; the Judge has only determined the lawful rent on the base date, to be used to compute these damages.

      . Thus, Cintron involves the interplay of rent reduction orders — not fraud — and the four-year statute of limitations, although both Supreme Court and tenants relied on it.