The parties agree that defendants were liable for payment of the fair market rent on their cooperative apartment in plaintiff's Mitchell-Lama premises and, accordingly, did not have to file income recertifications to determine whether their rent should be fair market rent or some lesser amount. However, defendants were required to certify their income for the purpose of determining whether they were responsible for payment of a surcharge, and if so, the amount thereof, as provided by section 3-03 (a) of HPD's Rules and Regulations (28 RCNY). The IAS Court correctly determined that the HPD surcharge was not "rent," as specifically provided by paragraph 4 (o) of plaintiff's 1978 refinancing agreement with the United States Department of Housing and Urban Development, and that, accordingly, the surcharge is not preempted by section 236 of the National Housing Act (82 US Stat 498, as amended; 12 U.S.C. § 1715z-1) setting forth the formula for the calculation of rent. Defendants are responsible for payment of plaintiff's attorneys' fees pursuant to paragraph 17 (c) of their occupancy agreement.

Concur — Murphy, P.J., Rosenberger, Rubin and Tom, JJ.