Brian F. Ward, Esq., PLLC (Brian F. Ward, Esq.), for appellant-respondent.

Leon I. Behar, P.C. (Leon I. Behar, Esq.), for respondent-appellant.

PRESENT: DAVID ELLIOT, J.P., MICHAEL L. PESCE, THOMAS P. ALIOTTA, JJ

ORDERED that the final judgment is reversed, with $30 costs to tenant, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition; and it is further,

ORDERED that the cross appeal is dismissed as moot.

In this nonpayment proceeding, landlord served a rent demand alleging that tenant owed rent at the rate of $3,700 for January through April 2012, and at the rate of $4,475.65 for May 2012 through October 2013. The petition incorporates the rent demand and alleges, among other things, that the apartment is subject to rent stabilization because landlord is the recipient of an RPTL 421–a tax abatement (see 28 RCNY 6–01 et seq. ). Tenant interposed an answer denying, among other things, the petition's allegation that a proper rent demand had been served, and asserting, among other things, that landlord had fraudulently registered the rents, that landlord had overcharged her, and that landlord had breached the warranty of habitability.

At a nonjury trial, the evidence established that tenant's initial 2005 lease, which was the first lease for the unit, listed a "legal regulated rent" of $9,175 and a preferential rent of $3,540. Each subsequent lease contained a "legal regulated rent" calculated based on that initial $9,175 figure. The renewal lease commencing May 2012 stated a legal regulated rent of $11,388.83 and a preferential rent of $5,000. In September 2013, landlord amended its Department of Housing and Community Renewal (DHCR) filings for tenant's apartment to restate the initial legal regulated rent as $3,540, with increases in the legal regulated rent in subsequent renewal leases calculated from that base. An employee of landlord's management company, Two Trees Management Company, testified that, based on this recalculation, landlord had unilaterally lowered the rent during the May 2012 lease term to the newly registered legal maximum, $4,475.65, and had given tenant certain credits, but no lease containing that amount had been executed. There was substantial testimony from both parties regarding tenant's warranty of habitability claim and landlord's claim that tenant did not provide sufficient access for repairs. Following the trial, the Civil Court found that landlord was entitled to rent at the rate of $3,700 per month for January 2012 through April 2012, and at the rate of $4,475.65 per month from May 2012 through September 2014, for a total unpaid balance of $127,693.85. The court further found that tenant was entitled to a 20% abatement for August 2011 through November 2012 and a 40% abatement for December 2012 through October 2013. After crediting the abatement, the court awarded landlord a final judgment of possession and the sum of $95,075.08.

Pursuant to Rent Stabilization Code (RSC) (9 NYCRR) § 2521.1 (g), "The initial legal regulated rent for a housing accommodation constructed pursuant to section 421–a of the Real Property Tax Law shall be the initial adjusted monthly rent charged and paid[.]" Since tenant was the first occupant of the premises and the rent she paid was $3,540, that sum became the initial legal regulated rent and all subsequent legal rents should have been calculated from that base. Landlord failed to register the correct maximum legal regulated rent for the initial 2005 lease term until September 2013 and offered no explanation for its filing of improper registrations, and none of the leases it proffered to tenant during those years accurately represented the maximum legal regulated rents.

In these circumstances, the rent was "frozen" at the initial legal regulated rent of $3,540 per month and landlord was entitled to no increases until September 2013 when the registrations were corrected (see Jazilek v. Abart Holdings, LLC , 72 AD3d 529, 531 [2010] ; see also Thornton v. Baron , 5 NY3d 175, 181 [2005] ; Bradbury v. 342 W. 30th St. Corp. , 84 AD3d 681, 684–685 [2011] ). Landlord's amended registrations have no retroactive effect (see Matter of Second 82nd SM LLC v. New York State Div. of Hous. & Community Renewal , 2012 NY Slip Op 30865[U], *8 [Sup Ct, NY County 2012]; Ernest & Maryanna Jeremias Family Partnership, LP v. Matas , 39 Misc 3d 1206[A], 2013 NY Slip Op 50505[U] [Civ Ct, Kings County 2013] ). Consequently, the maximum legal regulated rent for the unit remained $3,540 until at least September 2013.

A proper rent demand is a statutory prerequisite for a nonpayment proceeding ( RPAPL 711 [2 ] ) and an element of a landlord's prima facie case (see Community Hous. Innovations, Inc. v. Franklin , 14 Misc 3d 141[A], 2007 NY Slip Op 50050[U] [App Term, 9th & 10th Jud Dists 2007] ). A rent notice must "set forth the approximate good faith amount of rent owed" ( Dendy v. McAlpine , 27 Misc 3d 138[A], 2010 NY Slip Op 50890[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see 542 Holding Corp. v. Prince Fashions, Inc. , 46 AD3d 309 [2007] ) and cannot be amended (see Chinatown Apts. v. Chu Cho Lam , 51 NY2d 786, 787 [1980] ). Here, we find that the amounts demanded in the rent notice did not constitute approximate good faith rent amounts, and, thus, the petition should be dismissed.

While tenant has requested an award of attorney's fees, such an award should await the ultimate outcome of the nonpayment dispute (see Elkins v. Cinera Realty , 61 AD2d 828, 828 [1978] ).

Accordingly, the final judgment is reversed, the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition, and the cross appeal is dismissed as moot.

ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.