Opinion
L & T Index No.: 10702/19
04-07-2020
ANDERSON A TO ANDERSON G LLC, Petitioner, v. Guillermo Obergh SANCHEZ, Respondent.
For Respondent, The Legal Aid Society, Attorneys for Respondent, Attn: Michael Fusilli, 1118 Grand Concourse, Room 250, Bronx, NY 10456 For Petitioner, Todd Rothenberg, Esq., 271 North Avenue Suite 115, New Rochelle, NY 10801
For Respondent, The Legal Aid Society, Attorneys for Respondent, Attn: Michael Fusilli, 1118 Grand Concourse, Room 250, Bronx, NY 10456
For Petitioner, Todd Rothenberg, Esq., 271 North Avenue Suite 115, New Rochelle, NY 10801
Bryant Tovar, J. The decision and order on this motion is as follows:
BACKGROUND & PROCEDURAL POSTURE
The Petitioner, Anderson A To Anderson G LLC, ("Petitioner"), commenced this summary nonpayment proceeding against Guillermo Obergh Sanchez, ("Respondent"), in February of 2019. The Petition seeks unpaid rent in the amount of $4,968.51, and alleges the subject premises are subject to Rent Stabilization. Respondent filed a pro se answer and the matter was made returnable on March 26, 2019. Respondent's answer asserts that the rent has been paid or partially paid to the Petitioner and a warranty of habitability defense.
Both sides are represented by counsel in this proceeding.
Respondent moves for leave to file an amended answer pursuant to CPLR § 3025. The Respondent seeks summary judgment pursuant to CPLR § 3212(e) based on Respondent's First Affirmative Defense and First Counterclaim of overcharge in violation of a Rent Reduction Order("RRO"). Respondent also seeks summary judgment on the second defense of rent overcharge based on an incorrect legal regulated rent and First Counterclaim.
The Respondent further seeks an Order for a Housing Court inspection of the subject premises and an order pursuant to New York City Civil Court Act § 110(c), RPL § 235-b (1) and the Housing Maintenance Code to repair all violations in Respondent's apartment.
In the alternative, Respondent seeks dismissal pursuant to CPLR § 3211 for failure to provide a rent demand with a good faith approximation as required by RPAPL § 711(2).
Amending the Answer
CPLR § 3025(b) provides that leave to amend a pleading shall be freely given upon such terms as may be just. ( Norwood v. City of New York , 203 A.D.2d 147, 148-149, 610 N.Y.S.2d 249 [1st Dept. 1994] ). Amendment can be made at any time, especially where there is not significant prejudice to the opposing party. ( National Union Fire Ins. Co. v. Schwartz , 209 A.D.2d 289, 290, 619 N.Y.S.2d 542 [1st Dept. 1994] ). In the instant proceeding, the proposed Amended Answer contains meritorious defenses including overcharge and warrant of habitability. ( Thomas Crimmins Contracting Co. v. New York , 74 N.Y.2d 166, 170, 544 N.Y.S.2d 580, 542 N.E.2d 1097 [1989] ).
Petitioner argues prejudice if Respondent is permitted to amend the answer. The court cannot credit petitioner's claims of prejudice. Prejudice in the context of permitting the submission of an amended pleading is shown where the nonmoving party is "hindered in the preparation of his case or has been prevented from taking some measure in support of his position." ( Loomis v. Civetta Corinno Constr. Corp. , 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90 [1981] ; Jacobson v. McNeil Consumer & Specialty Pharmaceuticals , 68 A.D.3d 652, 654-655, 891 N.Y.S.2d 387 [1st Dept. 2009] ["Prejudice does not occur simply because a defendant is exposed to greater liability or because a defendant has to expend additional time preparing its case."] [internal citations omitted] ). Petitioner's non-specific allegations of prejudice are unsupported. Accordingly, Respondent's motion to file the Amended Answer is granted and the proposed Amended Answer is deemed served and filed.
Argument
Respondent seeks a finding of overcharge and treble damages against the Petitioner on several bases. Respondent moved in to the subject premises pursuant to a rent stabilized lease commencing January 1, 2013, and ending December 31, 2014. This initial lease states a legal regulated rent of $1,586.61 and a preferential rent of $1,322.18. A subsequent lease commencing January 1, 2015, with a purported prior legal rent of $2,791.72 and new legal rent for one year of $2,819.64 and a two-year rate of $2,868.49 was then executed. The lease was executed at a two-year preferential rate of $1,398.95 per month. The parties executed several subsequent leases. The last lease executed between the parties commenced on August 1, 2018, and terminated December 31, 2019, with a legal regulated rent of $2,876.03 and a preferential rent of $1,700.02. This last lease is the only lease registered with the Division with the Housing Community and Renewal of the State of New York ("DHCR") during Respondent's entire tenancy.
An executed lease commencing December 1, 2013, and terminating December 31, 2014, is annexed to Respondent's motion as Exhibit D. The court notes that this lease indicates a prior legal rent of $1,322.18 and a vacancy increase of $264.43 (20%) for a new legal rent of $1,586.61 and preferential rent of $1,322.18.
An executed lease commencing January 1, 2015, and terminating December 31, 2016, is annexed to Respondent's motion as Exhibit E.
Respondent provides a copy of a lease commencing January 1, 2016, with a legal rent of $2,819.64 and a preferential rent of $1,350.10 and a lease commencing on January 1, 2017, and terminating December 31, 2017, with a legal regulated rent of $2,819.64 and a preferential rent of $1,350.17. The last lease executed between the parties commenced on August 1, 2018, and terminated December 31, 2019, at a legal rate of $2,876.03 and a preferential rent of $1,700.02. These executed leases are annexed to the Respondent's motion as Exhibit E.
The Respondent moves for partial summary judgment based on Petitioner's failure to comply with a DHCR Rent Reduction Order ("RRO") effective May 1, 2018, which currently remains in effect. The RRO was issued for the subject premises on December 5, 2018. The order, effective May 1, 2018, "reduced the legal regulated rent to the level in effect prior to the most recent guidelines increase for the tenant's lease which commenced prior to the effective date of the order."
A copy of the DHCR Rent Reduction Order issued for the subject premises on December 5, 2018 is annexed to Respondent's motion as Exhibit G.
The Respondent argues that Petitioner is precluded from collecting above $1,322.18, which was the rent agreed to by the parties in the original 2013 lease. It is proffered that all subsequent leases executed between the parties were improper as they were not offered under the same terms on conditions as the original lease. Specifically, the increase in the legal regulated rent from $1,586.61 in the initial lease between the parties to $2,868.49 in the subsequent lease - an increase of almost one hundred percent - remains unexplained by Petitioner.
Respondent seeks a finding of overcharge, as Petitioner failed to register the leases and corresponding rents with DHCR. Prior to the commencement of the Respondent's tenancy, the subject premises were registered with a legal rent of $1,996 and a preferential rent of $1,322.18, in 2012. The subsequent registration, which marks the commencement of Respondent's tenancy, registered the subject premises as exempt due to high rent vacancy. The apartment is then registered as exempt for each subsequent year through 2018. In 2018, the apartment is registered as rent stabilized with the Respondent as the tenant and a lease commencing February 5, 2019, with a legal regulated rent of $2,876.03.
A copy of the rent registration history for the subject premises is annexed to Respondent's motion as Exhibit I. this document was certified on July 16, 2019.
Petitioner's opposition provides no explanation for the almost $1,300 increase in the legal regulated rent for the subject premises from the initial 2013 lease executed by the parties and the subsequent lease which commenced on January 1, 2015. Petitioner also fails to justify its failure to register rents with DHCR for the subject apartment consistent with the leases executed during Respondent's tenancy. Petitioner's opposition regarding adherence to the RRO is merely to restate its language. The Order "reduces the rent to the level in effect prior to the most recent guidelines increase for the tenant's lease which commenced before the effective date of this Order." Petitioner argues that the legal regulated rent in effect prior to the reduction order was $2,819.64, as was stated in the lease commencing January 1, 2016, and that this is the amount that Petitioner was entitled to charge pursuant to the Rent Reduction Order. In the alternative, should the court find the 2013 lease governs, the Petitioner states that any overcharge should be limited to any amount charged in excess of $1,586.61, as the initial legal regulated rent set forth by the parties' initial lease rather than $1,322.18, the preferential rent agreed to by the parties in that same lease.
Petitioner also opposes Respondent's motion for summary judgment under the doctrine of res judicata and collateral estoppel. In a prior proceeding under L/T index No. 28678/18, the Respondent, without the representation of counsel, entered into an agreement in which he agreed to a two-year lease commencing August 1, 2018, with a preferential rent of $1,700.00. Curiously, this agreement is marked without prejudice and makes no mention of any prior improper DHCR registrations or any existing or potential overcharge claims. Petitioner argues that this agreement precludes Respondent from now arguing overcharge.
The stipulation is annexed to the Petitioner's opposition papers as Exhibit 3.
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law. ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974] ). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law and tender sufficient evidence in admissible form demonstrating the absence of material issues of fact. ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; CPLR § 3212 [b] ). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. ( Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735, 853 N.Y.S.2d 526, 883 N.E.2d 350 [2008] ). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution." ( Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81, 760 N.Y.S.2d 397, 790 N.E.2d 772 [2003] ; see also Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ; CPLR § 3212 [b] ).
When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues. ( Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ). The Court must view the evidence in the light most favorable to the nonmoving party and give the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence. ( Negri v. Stop & Shop, Inc., 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740 [1985] ). If there is any doubt as to the existence of a triable issue, summary judgment should be denied. ( Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068 [1978] ). Collectible Rent
The Rent Stabilization Code ("RSC") § 2528.4 provides that an owner who fails to timely file rent registrations with DHCR is barred from collecting rent in excess of the base date rent, and may be retroactively relieved of that penalty upon filing a proper registration only when "increases in the legal regulated rent were lawful except for the failure to file a timely registration." ( Nolte v. Bridgestone Assoc. LLC , 167 A.D.3d 498, 499 [1st Dept. 2018] ; Matter of 215 W 88th St. Holdings LLC v. New York State Div. of Housing & Community Renewal, 143 A.D.3d 652, 653, 40 N.Y.S.3d 92 [1st Dept. 2016] ).
In the case at bar, Petitioner has failed to register the rent for entirety of the Respondent's tenancy, except for the most recent lease at a purported legal regulated rent of $2,876.03. The court notes that this registration fails to mention the preferential rent and fails to account for the years where no registration was filed, thus providing no explanation for the increase in legal rent from $1,996 as was registered in 2012 to $2,876.03. Accordingly, this registration statement must be deemed a nullity. ( Thornton v. Baron , 5 N.Y.3d 175, 800 N.Y.S.2d 118, 833 N.E.2d 261 [2005] ). Further, Petitioner is barred from the collection of any rent until filing a proper registration. Rent Stabilization Code § 2522.5(g)(1) provides that a proper lease renewal must be offered "on the same terms and conditions" as the expired lease. The leases executed after Respondent's initial 2013 lease include unjustifiable legal rent increases. As such, these leases must be deemed null and void. A landlord and a tenant may not make an agreement that goes against the scheme of rent regulation, even if favorable to the tenant. ( Drucker v. Mauro , 30 A.D.3d 37, 814 N.Y.S.2d 43 [1st Dept. 2006] ["It is well settled that the parties to a lease governing a rent-stabilized apartment cannot, by agreement, incorporate terms that compromise the integrity and enforcement of the Rent Stabilization Law. Any lease provision that subverts a protection afforded by the rent stabilization scheme is not merely voidable, but void ( Rent Stabilization Code [9 NYCRR] § 2520.13 ), and this Court has uniformly thwarted attempts, whether by mutual consent or by contract of adhesion, to circumvent regulated rent maximums."] ). In addition, the tenant cannot waive a benefit of the rent stabilization law. ( 9 NYCRR § 2520.13 ). An agreement by the tenant to waive the benefit of any provision of Rent Stabilization Law or Rent Stabilization Code is void. ( Georgia Properties, Inc. v. Dalsimer , 39 A.D.3d 332, 334, 835 N.Y.S.2d 41 [1st Dept. 2007] ; Riverside Syndicate, Inc. v. Munroe , 39 A.D.3d 256, 257, 833 N.Y.S.2d 452 [1st Dept. 2007], aff'd 10 N.Y.3d 18, 853 N.Y.S.2d 263, 882 N.E.2d 875 [2008] ; United West LLC v. Margulies , 12 Misc. 3d 1159(A), 2006 N.Y. Slip Op. 50971(U), at *3, 2006 WL 1417860 [Civ. Ct., NY County 2006] ). A lease which attempts to evade the Rent Stabilization Code and contains an illegal rent is void at its inception and the rent registration statement listing this illegal rent is also a nullity ( Thornton v. Baron , 5 N.Y.3d 175, 800 N.Y.S.2d 118, 833 N.E.2d 261 [2005].)
The initial lease between the parties with a legal regulated rent of $1,586.61 and a preferential rent of $1,322.18 remains valid. This lease, while not collectible until properly registered, is still binding. ( Jazilek v. Abart Holdings, LLC , 72 A.D.3d 529, 531, 899 N.Y.S.2d 198 [1st Dept. 2010] ).
Part E, § 1 of the 2019 HSTPA states the following:
"Any tenant who is subject to a lease on or after the effective date of a chapter of the law of two thousand nineteen which amended this subdivision, or is or was entitled to receive a renewal or vacancy lease on or after such date, upon renewal of such lease, the amount of rent for such housing accommodation that may be charged and paid shall be no more than the rent charged to and paid by the tenant prior to that renewal."
Therefore, in compliance with HSTPA, the starting point of any lawful rent increase for Respondent's lease is the amount paid under his initial lease — to wit, $1,322.18.
Overcharge
Part F, § 5 of the 2019 HSTPA amended RSL § 26-516 as follows:
"h. The division of housing and community renewal and the courts, in investigating complaints of overcharge and in determining legal regulated rents, shall consider all available rent history which is reasonably necessary to make such determinations, including but not limited to (i) any rent registration or other records filed with the state division of housing and community renewal, or any other state, municipal or federal agency, regardless of the date to which the information on such registration
refers; (ii) any order issued by any state, municipal or federal agency; (iii) any records maintained by the owner or tenants; and (iv) any public record kept in the regular
course of business by any state, municipal or federal agency. Nothing contained in this paragraph shall limit the examination of rent history relevant to a determination as to:
(i) whether the legality of a rental amount charged or registered is reliable in light of all available evidence including, but not limited to, whether an unexplained increase in the registered or lease rents, or afraudulent scheme to destabilize the housing accommodation, rendered such rent or registration unreliable "
Thus, the changes to the Rent Stabilization Code pursuant to the HSTPA appeared to impose no time limit on how far back DHCR and courts can look in order to determine whether an overcharge has occurred. The amended CPLR § 213-a, when read in conjunction with the amended RSL § 26-516, instructed the courts and DHCR "to consider all available rent history" necessary to determine the legal rent and any overcharge that may have occurred. ( Dugan v. London Terrace Gardens, LP , 177 A.D.3d 1, 9-10 [1st Dept. 2019] ). However, the recent decision in Regina Metro. Co., LLC v. New York State Div. of Hous. and Community Renewal, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2020 N.Y. Slip Op. 02127 [2020] ) held the retroactive application of overcharge calculation amendments in Housing Stability and Tenant Protection Act did not comport with due process and are thus unenforceable. Regina Metro resurrects the pre-HSTPA rule, where a tenant was required to demonstrate a colorable claim of a fraudulent scheme to deregulate the apartment that would warrant granting discovery beyond the statute of limitations. ( Conason v. Megan Holding, LLC , 25 N.Y.3d 1, 6 N.Y.S.3d 206, 29 N.E.3d 215 [2015] ; Matter of Grimm v. State of NY Div. of Hous. & Community Renewal Off. of Rent Admin. , 15 N.Y.3d 358, 912 N.Y.S.2d 491, 938 N.E.2d 924 [2010] ; Thornton v. Baron, 5 N.Y.3d 175, 800 N.Y.S.2d 118, 833 N.E.2d 261 [2005] ; Spatz v. Valle , 63 Misc. 3d 134(A), 2019 N.Y. Slip Op. 50452(U) [App. Term, 1st Dept. 2019].) In the case at bar, the rent was registered at $1,996 in 2012 and was subsequently registered as exempt for high rent vacancy in 2013. In 2013, the high rent deregulation threshold was $2,500. Despite being well within its rights to do so due to the unexplained rent increase between his initial lease and the lease commencing January 1, 2015, and inconsistent lease registrations, Respondent does not challenge this registration. A review of the ledger indicates there is no evidence Petitioner has ever charged Respondent above $1,996. Accordingly, there is no overcharge under this basis.
The Regina Metro decision contradicts the Appellate Division decision Taylor v. 72A Realty Assoc., LP, 151 A.D.3d 95, 53 N.Y.S.3d 309 [1st Dept. 2017] ). In Taylor , the court permitted Rent Administrators to look beyond the four-year look back period to the last legal rent under stabilization to calculate base rent, even if there is no colorable claim of fraud.
The HSPTA changed the statute of limitation for an overcharge complaint from four (4) years to six (6) years
The year prior to the commencement of Respondent's tenancy.
A copy the rental history commencing December 2017 and ending August 2019 is annexed to Respondent's motion as Exhibit 6.
The Rent Reduction Order effective May 1, 2018, was filed after Petitioner's 2018 rent registration. This registration submits the premises to rent stabilization, thus enabled the filing of a request for a rent reduction. The order specifically states the rent shall be reduced to the last legal rent in effect prior to the reduction order. As the court has rendered the leases subsequent to the initial lease null and void, discussed supra , the last legal rent in effect is the registered rent of $1,996.00. Petitioner argues the legal rent of $1,586.61 pursuant to Respondent's initial lease, rather than Respondent's preferential rent of $1,322.18, should be controlling in determining the proper amount of rent collectible pursuant to the Rent Reduction Order. To allow either the $1,996.00 legal regulated rent or the legal rent of $1,586.61 as set forth in the parties' 2013 lease to determine the effect of the rent reduction order would be in contravention to the intent of the order and the goals of the Legislature in enacting Rent Stabilization Law § 26—514, namely, "to motivate owners of rent-stabilized housing accommodations to provide required services, compensate tenants deprived of those services, and preserve and maintain the housing stock in New York City." ( Jenkins v. Fieldbridge Assoc., LLC , 65 A.D.3d 169, 877 N.Y.S.2d 375 [2d Dept. 2009], citing Matter of Hyde Park Assoc. v. Higgins , 191 A.D.2d 440, 442, 594 N.Y.S.2d 57 [2nd Dept. 1993] ). Therefore, to allow Petitioner to collect a higher rent that the monthly amount ($1,322.18) agreed upon by the parties in the last valid, executed lease would effectively allow Petitioner to collect increases despite a Rent Reduction Order forbidding such increases and despite Petitioner's failure to offer and register lawful leases. Accordingly, in compliance with the RRO, the Petitioner should have charged the Respondent a monthly rent of $1,322.18, which was the preferential amount on the initial lease, from May 1, 2018, the effective date of the order, to date. During the time period at issue in the Petition, Petitioner charged the Respondent $26,093.91, comprised of a monthly rent of $1,350.10 from May 1, 2018 to August 1, 2018, a lease increase of $293.51 in August 2018, and a monthly rent of $1,700 from September 1, 2018 to August 1, 2019. The Petitioner was entitled to charge $21,154.88 during this time period, calculated at a monthly rate of $1,322.18 for the sixteen months between May 1, 2018 and August 1, 2019. Accordingly, Petitioner overcharged the Respondent $4,939.03 during this time period. Once it is determined that the landlord had overcharged the complaining tenant for rent, it becomes incumbent on the landlord to establish by a preponderance of the evidence that such overcharges were not willful. ( Chu v. New York State Division of Housing and Community Renewal , 231 A.D.2d 567, 647 N.Y.S.2d 285 [2d Dept. 1996] ). Petitioner has failed to establish that the rent overcharge in the instant proceeding is not willful. It is evident in the instant proceeding that Petitioner wholly disregarded the RRO and continued to charge the rent it believed to be in effect prior to the issuance of the order.
According to the ledger, the Respondent paid $21,195.40 during this time. "Treble damages can be calculated only from an amount that respondent paid over an amount that petitioner is owed." ( Curry v. Battistotti, 5 Misc. 3d 1012(A), 2004 N.Y. Slip Op. 51355(U), 798 N.Y.S.2d 708 [Civ. Ct., NY County 2004], aff'd , 12 Misc. 3d 129(A), 2006 N.Y. Slip Op. 51030(U), 2006 WL 1540333 [App Term, 1st Dept. 2006] ). Accordingly, the amount subject to treble damages is the overpayment of $40.52 - calculated at $21,195.40, the amount Respondent paid during the relevant time period, less $21,154.88, as the amount Petitioner should have charged during the relevant time period. Trebling this amount, the award to Respondent is $121.56. No calculation of interest upon this award is required by law or warranted. ( Grady v. Hessert Realty LP , 178 A.D.3d 401, 113 N.Y.S.3d 698 [1st Dept. 2019] ).
May 1, 2018-August 1, 2019.
Res Judicata and Collateral Estoppel
Petitioner argues that Respondent has waived any overcharge claims or challenges to the rent based on the doctrine of res judicata. This argument must fail. Stipulations which purport to waive a benefit of the rent stabilization are generally void on public policy grounds. (RSC § 2520.13 ; 390 West End Associates v. Harel , 298 A.D.2d 11, 15, 744 N.Y.S.2d 412 [1st Dept. 2002], citing Cvetichanin v. Trapezoid Land Co. , 180 A.D.2d 503, 504, 580 N.Y.S.2d 23 [1st Dept. 1992], lv dismissed 79 N.Y.2d 933, 583 N.Y.S.2d 184, 592 N.E.2d 792 [1992] ; New Hanover Corp v. Ibodli , 46 Misc. 3d 77, 78-79, 3 N.Y.S.3d 258 [App Term, 1st Dept. 2014] ; Weis v. Lefkowtiz , 261 A.D.2d 480, 690 N.Y.S.2d 130 [2d Dept. 1999] ). Logic dictates that if an express waiver of a right is void, an implicit waiver must also be void. ( Estro Chem. Co. v. Falk , 303 N.Y. 83, 86, 100 N.E.2d 146 [1951] ["[A] ‘statutory right conferred on a private party, but affecting the public interest, may not be waived or released if said waiver or release contravenes the statutory policy.’ "] [internal citations omitted] ). For these same reasons, petitioner's collateral estoppel arguments are also without merit.
Failure to File a Proper Rent Demand
A proper demand for rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of the period for which such claim is made. At a minimum, the landlord or his agent should clearly inform the tenant of the particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each such period. ( 542 Holding Corp. v. Prince Fashions, Inc ., 46 A.D.3d 309, 311, 848 N.Y.S.2d 37 [1st Dept. 2007], citing Schwartz v. Weiss—Newell , 87 Misc. 2d 558, 561, 386 N.Y.S.2d 191 [Civ. Ct., NY County 1976].)
The rent demand seeks a monthly rent of $1,700 for January and February of 2019, and $1068.51 for December 2018. This court has found that the lease which is the basis for alleged $1,700 per month rent amount to be invalid. Petitioner has failed to seek an appropriate rent, and, accordingly, the court cannot find that such demand includes a good faith sum of rent assertedly due. As a predicate notice is a condition precedent to a nonpayment summary proceeding, it is not subject to amendment and failure to provide a proper predicate notice must result in dismissal. ( Chinatown Apts. v. Chu Cho Lam , 51 N.Y.2d 786, 433 N.Y.S.2d 86, 412 N.E.2d 1312 [1980] ). This proceeding cannot be maintained in the absence of a proper rent demand and is therefore dismissed.
Conclusion
The Petitioner has not charged the Respondent above the legal regulated rent of $1,996, which this court finds to be the last reliable registered legal regulated rent. Accordingly, there is no overcharge under this basis. The Petitioner, however, disregarded the Rent Reduction Order and overcharged the Respondent from May 1, 2018, to date. Respondent is awarded treble damages in the amount of $121.56, as a result of this overcharge. The collectible rent for the subject premises, as a product of the voluntary initial lease between the parties and Rent Reduction Order, is $1,322.18. The collectible rent remains frozen at $1,322.18 until such time the Rent Reduction Order is lifted and the lease is lawfully registered. All future rents are to be based on the preferential rent of $1,322.18 and allowable increases above that amount. This proceeding is further dismissed for failure to provide a proper rent demand as a condition precedent, and Respondent reserves all rights and defenses pertaining to warranty of habitability claims.
Accordingly the Clerk is instructed to enter a money judgment in favor of the Respondent and against the Petitioner in the sum of $121.56.
This constitutes the Decision and Order of this Court.