Summary
In Smitten (supra), the First Department ruled that for these apartments the legal regulated rent was the old rent-controlled rent. It should be readily apparent, however, that this ruling, which deprives the owner of the benefit of a negotiated first rent and rolls back the rent to the rent-controlled rate, imposes a sanction that is highly disproportionate to the rent freeze which the Legislature intended to impose.
Summary of this case from Murray v. MorrisonOpinion
November 13, 1990
Appeal from the Supreme Court, New York County (Shirley Fingerhood, J.).
Plaintiff was the first tenant in this formerly rent-controlled apartment after a purported vacancy decontrol, for which the landlord did not file an initial legal rent registration, and did not file an annual registration from 1985 through 1988 inclusive. The plaintiff sought rent overcharges for a period covering March 1986 through November 1988, inclusive, alleging that the base rent was the last legal rent-controlled rate of $189.28 per month.
The IAS court properly determined that it had subject matter jurisdiction (Emergency Tenant Protection Act § 12 [L 1974, ch 576, § 4, as amended]; McKinney's Uncons Laws of N Y § 8632 [a] [1] [f]). This is a rent overcharge proceeding and not, as defendants contend, a fair market rent appeal. A fair market rent appeal requires that the initial legal regulated rent be effectively determined (Rent Stabilization Law [Administrative Code of City of New York] § 26-513 [b] [1]), for which registration of the initial rent, plainly lacking here, is a prerequisite. (Rent Stabilization Code [9 N.Y.CRR] § 2521.1 [a] [1].) The IAS court correctly held that since there was no initial registration, the legal rent rate was the last rate under rent control.
Further, as defendants failed to meet their burden of disproving willfulness, the IAS court properly awarded treble damages (Rent Stabilization Law § 26-516 [a]). It is the landlord's burden to disprove willfulness, which defendants failed to do.
Concur — Kupferman, J.P., Milonas, Rosenberger, Asch and Kassal, JJ.