Redlisky v. Boyko

RECITATION, PURSUANT TO CPLR §2219(a), OF THE PAPERS CONSIDERED IN REVIEW OF RESPONDENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND FOR LEAVE TO CONDUCT DISCOVERY AND PETITIONER’S CROSS MOTION TO STRIKE THE AMENDED ANSWER AND FOR A FINAL JUDGMENT OF POSSESSION AND A MONEY JUDGMENT OR AN ORDER DIRECTING A RENT DEPOSIT.PAPERS  NUMBEREDNOTICE OF MOTION & AFFIDAVITS ANNEXED            1NOTICE OF X-MOTION & AFFIDAVITS ANNEXED         2bORDER TO SHOW CAUSE & AFFIDS. ANNEXEDANSWERING AFFIDAVITS TO MOT.               2a, 3bREPLYING AFFIDAVITS    3a, 5PETITIONER’S MEMO OF LAW        4RESPONDENT’S MEMO OF LAW    6DECISION/ORDER Petitioner commenced this summary nonpayment proceeding seeking to recover rent arrears for apartment 1F located at 34-33 30th Street, Astoria, New York (“subject premises”) from respondent Rachel Carmen Boyko.The rent demand indicates that rent for March, 2018 through July, 2018 is due at $950.00 per month totaling $4,750.00. The petition and notice of petition include rent for August, 2018 due and owing increasing the total amount due to $5,700.00. The subject premises is rent stabilized and paragraph eight of the petition provides that the premises is duly registered with the New York State Division of Housing and Community Renewal (“DHCR”) and is in compliance with the Rent Stabilization Law and Code in that the rent demanded does not exceed the legal regulated rent permitted under relevant laws.Respondent moves pursuant to CPLR §3212 for an order granting partial summary judgment setting respondent’s monthly rent at $434.35 and for an order granting leave to conduct discovery. Petitioner opposes respondent’s motion and cross-moves to strike respondent’s amended answer, to amend the petition through November, 2018, and for an order granting petitioner a final judgment of possession and a money judgment for rent due through November, 2018. Alternatively, petitioner seeks an order directing a rent deposit for post-petition rent that has come due. Both parties are represented by counsel.Striking the Amended AnswerRespondent’s amended answer raised several affirmative defenses including a defective rent demand, late rent registration filings, charge of an unlawful rent, and repairs and conditions existing in the apartment as well as a counterclaim for rent overcharge. On October 16, 2018, the parties entered into a two-attorney stipulation agreeing to vacate respondent’s September 4, 2018 default and granting respondent’s motion to interpose the amended answer. As such, that branch of petitioner’s cross motion to strike the amended answer is denied as moot.Respondent’s Motion for Partial Summary Judgment & Petitioner’s Motion for a Final Judgment and a Money JudgmentRespondent moves for partial summary judgment and for an order setting the monthly rent at $434.35 per month, which is the last legal regulated rent registered with DHCR prior to petitioner’s recent registration in September, 2018. Respondent argues that based on petitioner’s noncompliance with the New York City Administration Code §26-517(e) and the Rent Stabilization Code §§2528.1 and 2203.1 in failing to timely and properly register the subject premises with DHCR, the rent is frozen at $434.35 per month.¹Petitioner opposes and argues that the statutes eliminate any penalty once the registration is filed and that respondent’s arguments are meaningless because no rent was ever paid for the subject premises. Petitioner cross-moves for a judgment of possession and a money judgment for rent arrears due through November, 2018 on the grounds that petitioner has demonstrated its prima facie case.Respondent proffers a DHCR rent registration history for the subject premises. The DHCR records show that in 1984 the subject premises was initially registered as rent stabilized with a legal registered rent of $297.44 per month. Subsequently, the subject premises was registered listing a legal regulated rent of $372.41 in 1987, $372.41 in 1988, and $434.35 in 1991. The last registration filed for the subject premises was in 1993 listing the apartment as rent stabilized with a legal regulated rent of $434.35 per month. Then, from 1994 to 2017, the DHCR registration indicates “Reg not found for subject premises.”Respondent maintains that she has been residing at the subject premises since December, 2017 and proffers a lease agreement between the parties for the subject apartment for one year from December 1, 2017 to November 30, 2018 at a rent of $950.00 per month.After this proceeding was commenced, petitioner mailed respondent an Initial Registration Summary and Initial Building Services Registration dated September 12, 2018 for the subject building as well as an Initial Apartment Registration dated September 6, 2018 listing respondent as the tenant and the legal registered rent as $950.00 per month for the same term period as the parties’ lease agreement. These registrations indicate that the building became subject to rent stabilization on April 4, 1947.An owner must register buildings and apartments subject to rent stabilization with DHCR. NYC Admin. Code §26-517; 9 NYCRR §§2528.1 and 2203.1. Rent stabilized apartments must be registered annually. 9 NYCRR §2528.3. New York City Administrative Code §26-517(e) provides, in pertinent part:The failure to file a proper and timely initial or annual rent registration statement shall, until such time as such registration is filed, bar an owner from applying for or collecting any rent in excess of the legal regulated rent in effect on the date of the last preceding registration statement….The filing of a late registration shall result in the prospective elimination of such sanctions and provided that increases in the legal regulated rent were lawful except for the failure to file a timely registration, the owner, upon the service and filing of a late registration, shall not be found to have collected an overcharge at any time prior to the filing of the late registration. (Emphasis added.)Rent Stabilization Code §2528.4(a) provides, in pertinent part:The failure to properly and timely comply, on or after the base date, with the rent registration requirements of this Part shall, until such time as such registration is completed, bar an owner from applying for or collecting any rent in excess of: the base date rent, plus any lawful adjustments allowable prior to the failure to register. Such a bar includes but is not limited to rent adjustments pursuant to section 2522.8 of this Title. The late filing of a registration shall result in the elimination, prospectively, of such penalty….(Emphasis added.)The statutes provide that if a building owner fails to file a proper and timely rent registration with DHCR, the penalty is a rent freeze at the amount of the legal regulated rent of the last registration that was in fact filed with DHCR. Samson Mgt., v. Cordero, 62 Misc.3d 129(a) (A.T. 2 2018); 125 Ct. St., LLC v. Sher, 58 Misc.3d 150(A) (A.T. 2 2018); Bradbury v. 342 West 30th Street Corp., 84 A.D.3d 681 (1st Dept. 2011) (citing Jazilek v. Abart Holdings, LLC, 72 A.D.3d 529 (1st Dept. 2010)). However, once the late registration is filed, and if the increases in the legal regulated rent were lawful, then the rent freeze is lifted going forward as of the date of the filing and an owner can charge a higher rent amount. Samson Mgt., v. Cordero, 62 Misc.3d 129(a) (A.T. 2 2018); 125 Ct. St., LLC v. Sher, 58 Misc.3d 150(A) (A.T. 2 2018); Bradbury v. 342 West 30th Street Corp., 84 A.D.3d 681 (1st Dept. 2011) (citing Jazilek v. Abart Holdings, LLC, 72 A.D.3d 529 (1st Dept. 2010)).This proceeding was commenced on the grounds that respondent failed to pay the rent at $950.00 per month pursuant to a lease agreement for the months of March, 2018 through August, 2018. The DHCR rent registration history for the subject premises shows that the last registered rent for the subject premises was in 1993 at $434.35 per month. No other registrations were filed with DHCR until September, 2018 when petitioner maintains that it filed an Initial Apartment Registration² listing the legal regulated rent at $950.00 per month. Petitioner does not submit proof showing that this DHCR registration in fact was filed.³ However, even if the registration was filed as alleged, this late registration resulted in the lifting of the rent freeze as of the time of the late filing in September, 2018. Accordingly, due to petitioner’s late filing, the collectible rent for the subject premises was frozen at $434.35 per month from 1994 through at least August, 2018. As such, since the rent demand sought payment of rent at $950.00 per month, the rent demand is defective as it is not a good faith approximation of the rent due. The rent demand is a condition precedent to a summary nonpayment proceeding (RPAPL §711(2)) which is not subject to cure (Chinatown Apts. v. Chu Cho Lam, 51 N.Y.2d 786 (1980)), and therefore, petitioner’s defective rent demand requires dismissal.Accordingly, respondent’s motion for partial summary judgment is granted to the extent set forth above and the petition is dismissed. That branch of petitioner’s motion for a judgment of possession and a money judgment for rent arrears due through November, 2018 is denied. Petitioner’s request for a rent deposit is likewise denied. Respondent’s counterclaim for rent overcharge is also dismissed without prejudice as respondent acknowledges that she has not paid the amount sought in the petition, and the request for discovery relating to the counterclaim is denied as moot. At this time, the court does not reach a determination as to whether a monthly rent of $950.00 is a lawful and proper rent for the period of September, 2018 going forward.Based on the foregoing, respondent’s motion is granted and the petition is dismissed. Respondent’s counterclaim also is dismissed. Petitioner’s cross motion is denied and that branch of respondent’s motion seeking discovery is denied as moot.⁴This constitutes the decision and order of the court.Dated: April 4, 2019Queens, New York