Opinion
88077/08.
Decided on February 20, 2009.
HEIBERGER ASSOCIATES, P.C., Attorney for Petitioner, Robert Ehrlich, Esq., New York, NY.
LANCE ORTON SR., Respondent Pro Se, New York, New York.
BACKGROUND
This summary nonpayment proceeding was commenced by 163 BROADWAY ASSOCIATES, LLC ("Petitioner") seeks to recover possession of Apartment 4J, at 601 West 163rd Street A/k/a 3901 Broadway ("Subject Premises") based on the allegation that LANCE ORTON SR. ("Respondent") the rent-stabilized tenant of record, had failed to pay rent for the Subject Premises.
PROCEDURAL HISTORY
The rent demand was issued on or about September 19, 2008, seeking $14,051.43 in rent arrears, for the period of July 2007 through September 2008. On or about October 3, 2008 a notice of petition and petition were issued for the same period of time, in addition to rent for October 2008. On October 8, 2008, Respondent filed an answer alleging that there were conditions in the Subject Premises requiring repair, and disputing the amount sued for. On or about October 15, 2008, Respondent filed an amended answer, which references the prior non-payment proceeding between the parties, and states that the arrears sought are not valid and that payments Respondent had made prior to December 2007 had not been credited.
The proceeding was initially returnable on October 15, 2008. It was adjourned to November 3, 2008 due to Respondent having surgery. It was adjourned over a few more dates for access and repairs to be done, and for which the Court assigned a Resource Assistant to be present. On February 9, 2009 there was a proposed stipulation which was executed by the parties resolving the case. However, after the allocution by the Court, the stipulation was rejected by Respondent, and the matter was scheduled for trial on February 9, 2009.
On February 9, 2009 the proceeding was assigned to Part S for trial. The trial commenced and was completed on the same day. After trial the court reserved decision.
DISCUSSION
Petitioner failed to establish key elements of its prima facie case at trial. The main defects in Petitioner's prima facie case concern establishing the legal rent, and establishing an agreement between the parties to pay rent, or even a landlord tenant relationship between the parties. Pursuant to the deed (Pet. Ex. "1") in evidence, Petitioner became the owner of the Subject Building on July 11, 2007. According to the rent history (Pet. Ex. "5"), Respondent has made no payments since Petitioner took ownership. Petitioner offered one lease renewal ("Renewal") into evidence (Pet. Ex. "4"). The Renewal is dated October 1, 2007, for a term from January 1, 2008 through December 31, 2009. The Renewal has two stamps on it. On the top it is stamped "REVISED" in bold letters, and on the bottom, where the Respondent's signature would otherwise go, it is stamped "DEEMED" in bold red letters. Next to the "DEEMED" stamp is a date, written in black ink, of August 25, 2008. In blue ink is Respondent's signature, with the annotation "per ct agreement 2/9/09". The managing agent's signature is also on the document, in blue ink, without a date. Petitioner offered no testimony regarding how or why the revised deemed Renewal was created, and what "revisions" were made.
The Court finds that based on the preponderance of evidence offered at trial, the Renewal is not valid, and is insufficient to establish a landlord tenant relationship between the parties or an agreement to pay rent. The Court's finding is based on the following detailed facts. The Renewal was signed in Court, at the same time and in conjunction with the proposed stipulation of settlement, which was ultimately rejected by Respondent and the Court. Additionally, the document appears to be invalid on its face. This determination is based in part on a prior non-payment proceeding between the parties, referenced in the Respondent's answer, and which the Court has taken Judicial Notice of in reaching its determination, with notice to and on consent of both parties.
In 2007, Petitioner sued Respondent for nonpayment of rent under Index Number 91042/07 ("Prior Proceeding"). The Prior Proceeding was discontinued, without prejudice, after being assigned to Judge Wendt for trial on December 17, 2007. In the Prior Proceeding, Petitioner alleged that Respondent's rent was $1200.00 per month, pursuant to a written rental agreement, and sought rent for the period of February 2007, prior to the time Petitioner owned the building, through October 2007, at a rental of $1200.00 per month.
Petitioner was not able to establish in the Prior Proceeding that the legal rent was $1200.00 per month, and thus discontinued the proceeding without prejudice. Almost one year later, Petitioner started this proceeding. Petitioner's agent, Cynthia Marrero testified that Petitioner had attempted to contact the prior owner, and obtain the documents necessary to prove that the Subject Premises was renovated, and that legal rent was based on allowable increases pursuant to the improvements made. Ms. Marrero testified that Petitioner was not able to do so, and thus effective September 2008, Petitioner started billing Respondent at $957.59 per month, rather than $1269.00 per month, which Petitioner had billed from February 2008 forward.
The Renewal was not created on October 1, 2007, as its date would suggest, it is not a proper renewal, and there is no basis in the record to allow Petitioner to deem it renewed (RSC § 2523.5[a], [c][1]). Months after the Renewal was purportedly issued and dated, Petitioner commenced the Prior Proceeding seeking rent at $1200.00 per month. The Renewal was probably first drafted after September 2008, and whether it was ever presented to Respondent, prior to the court date on February 9, 2008 in conjunction with the proposed stipulation of settlement, is not apparent from the record. Certainly, Petitioner did not prove the allegation in paragraph two of the Petition, that Respondent is in possession pursuant to a written rental agreement wherein he agreed to pay $957.59 at trial.
The DHCR registration records put into evidence by Petitioner indicate that on June 17, 2004, Respondent was living in Apartment 6B at the Subject Building, and that the tenant of record for the Subject Premises was Maria Feliz at a legal rent of $679.82. The next registration for the Subject Premises lists Respondent as the tenant of record, with a lease that ran from January 1, 2005 through December 31, 2007. The rent listed for said lease is $905.52. The registration for 2005, along with all subsequent registrations, were filed on January 5, 2009, after the commencement of this proceeding, and appear to be amended registrations indicated by an asterisk next to the apartment number.
Though there was neither testimony, nor documentary evidence, indicating the date and terms of the lease under which Respondent became the tenant of record for the Subject Premises, the Court presumes that Respondent became the tenant effective January 1, 2005. There is also no evidence in the record as to whether the initial tenancy was for a one year period or a two year period, nor any conclusive evidence as to whether Respondent moved from one apartment to the other at the owners request or for his own purpose.
The rent history (Pet. Ex. "5") indicates that from July 2007 through December 2007, Respondent was billed at a rate of $1200.00 per month. In January 2008, which would have been the next term for a renewal, Petitioner started billing Respondent at a rate of $1269.00 per month representing a 5.75% increase, which presumably would have been for a two year period.
The Renewal is based on a previous rent of $905.52. It is not clear where this figure came from. There does not appear to have ever been a lease agreement between the parties at said rate. Assuming arguendo that the Petitioner had just resolved to take a 20% vacancy over the last registered rent that would amount to $815.78. Thus Petitioner failed to establish any entitlement to rent for July 2007 through December 2007 at a rent of $905.52.
The Court finds that based on the pleadings and the prior litigation between the parties, putting in an amended registration, initially filed with DHCR months after the commencement of this proceeding, is insufficient in and of itself, to establish by a preponderance of the evidence that the rent sought is legal. This conclusion is further supported by Petitioner's failure to offer into evidence any valid rental agreement between the parties, or between Respondent and the prior owner, that would support a finding that the rent sought was legal, as well as the substantial inconsistencies raised by the rent history that was put into evidence. ( Mangano v. DHCR, 30 AD2d 267 [1st Dept, 2006][ inadequacies and inconsistencies in documentation presented by landlord justified finding of overcharge] quoting Matter of Argo v. DHCR, 257 AD2d 455).
Under Rent Stabilization the legal regulated rent must be based on the documented legal rent four years prior to the interposition of a pleading challenging the legality of the rent ( Auto Park Inc. v. Bugdaycay , 7 Misc 3d 292 ). Respondent first challenged the legality of the rent for the Subject Premises on October 12, 2007, in the Prior Proceeding, wherein it is noted in the Court file as part of Respondent's answer, that he disputed the amount sued for, and which issue served as the basis for Petitioner's discontinuance of the Prior Proceeding at trial.
It is Petitioner's burden to provide documentation establishing the legal regulated rent on the base date, and to provide documentation regarding the rent history to show that the rent charged is the legal regulated rent ( Auto Park., supra; 4947 Associates v. DHCR 199 AD2d 179 [1st Dept, 1993]). Petitioner has not met its burden in either regard.
Based on the forgoing, the Court dismisses the petition. As the Court was not able, based on the record at trial, to determine what the legal registered rent for the Subject Premises, and because Respondent did not assert any counterclaim for rent overcharge in this proceeding, the matter of the legal rent remains unresolved. Respondent, if so advised, may file a complaint with DHCR and have that agency make such a determination.
The Court notes that the parties had agreed amongst themselves to further access dates to finish alleged necessary repairs in the Subject Premises. The record at trial established that Respondent was not cooperative in providing access to the Subject Premises, and maintained an unsanitary and cluttered apartment. The evidence further established Respondent harbors Rottweiler in the Subject Premises that prevents or limits Petitioner from making repairs, and which Respondent permits to urinate and defecate in the Subject Premises. Given said findings, the Court declines to order Petitioner to make any repairs, other than what the parties had agreed to between themselves at the conclusion of the trial in this proceeding.
This constitutes the decision and order of this Court.