Opinion
570321/10.
Decided May 12, 2011.
Landlord, as limited by its briefs, appeals from that portion of an order of the Civil Court, New York County (Thomas M. Fitzpatrick, J.), dated May 18, 2009, which granted tenant's cross motion for summary judgment dismissing the petition in a holdover summary proceeding.
PRESENT: Shulman, J.P., Hunter, J.
Order (Thomas M. Fitzpatrick, J.), dated May 18, 2009, insofar as appealed from, reversed, with $10 costs, tenant's cross motion denied, and petition reinstated.
This holdover summary proceeding, based upon tenant's refusal to execute a renewal lease, is not ripe for summary disposition. Most prominent among the issues that remain unresolved on this record is whether the rental amount specified in landlord's lease renewal offer exceeded the legal regulated rent ( see Rent Stabilization Code [ 9 NYCRR] § 2524.3[f]) so as to justify the tenant's refusal to accept the renewal lease ( see Ridges v Spots Realty Corp. v Edwards , 4 Misc 3d 130 [A], 2004 NY Slip Op 50682[U] [App Term, 1st Dept]). Resolution of that issue must await a calculation of the initial base rent pursuant to Rent Stabilization Code (9 NYCRR) § 2522.6. Contrary to tenant's contention, the cited Code section, not the Thornton default formula ( see Thornton v Baron , 5 NY3d 175 ) provides a proper basis to fix the legal rent in the matter at hand, in which no tenable showing was made that the landlord or its predecessor attempted to evade or circumvent the rent regulatory scheme and where the difficulty in establishing the base date rent arises not from any alleged illegality — the rent actually charged tenant on the March 12, 2005 base date was $0 — but because such rent "cannot be established" (Code § 2526.1[a][3][ii]; see Matter of Cabrini Realty, LLC v New York State Div. of Hous. and Community Renewal , 6 AD3d 280 , 281; cf. Levinson v 390 W. End Assoc., LLC , 22 AD3d 397 , 401-402, n 6).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.