Opinion
570224/03.
Decided June 21, 2004.
Landlord appeals from an order of the Civil Court, New York County, dated December 20, 2002 (Jean T. Schneider, J.) denying landlord's motion to strike tenants' first and second affirmative defenses in a holdover summary proceeding.
Order dated December 20, 2002 (Jean T. Schneider, J.) affirmed, with $10 costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
Tenants took occupancy of the residential premises on January 1, 1999 pursuant to a two-year lease at a monthly rent of $3,200 and a subsequent renewal which terminated on December 31, 2001. On June 25, 2002, tenants commenced an action in Supreme Court for, inter alia, a judicial declaration of their rights under rent stabilization and damages for rent overcharge. Landlord then commenced this holdover summary proceeding, alleging that tenants' renewal lease had expired and that the premises was not subject to rent regulation; tenants interposed their coverage and overcharge defenses. The parties agreed by stipulation in the Supreme Court action to resolve all existing claims in Civil Court, with tenants' overcharge claim deemed interposed on June 25, 2002, thus rendering June 25, 1998 as the base date for examination of the rental history (CPLR § 213-a).
Landlord moved to dismiss tenants' defenses pursuant to CPLR § 3211(b), alleging that the $3,200 lease rent exceeded the $2,000 decontrol limit and the premises were thus exempt from regulation. In opposition, tenants submitted an affidavit from the predecessor rent stabilized tenant (Gelfan) affirming that her rent was $1,041.90, and a surrender agreement executed by Gelfan which provided that she would continue to pay rent and/or use and occupancy of $1,041.90 up to and including June 30, 1998. While landlord produced a September 1998 DHCR registration statement referencing a $2,080 rent pursuant to a lease with one "Lowenthal W." from July 1997 through June 1998, Gelfan's affidavit directly refutes those entries and calls into question whether such a lease was executed (see Lyndonville Properties Management, Inc. v. DHCR, 291 AD2d 311). In any event, since the examinable rental history dating back to June 25, 1998 at least raises an issue as to whether there was an impermissible increase from $1,041.90 to $3,200, landlord's dismissal motion was properly denied. To the extent landlord maintains that the increase was justified as a consequence of improvements to the apartment (Rent Stabilization Code § 2522.4[a][1], [4]), that issue may not be resolved on the existing record.
We do not reach landlord's other arguments not preserved below, and particularly note that the parties stipulated to litigate "all of their claims" in Civil Court.
This constitutes the decision and order of the court.