Opinion
570396/02, 02-194.
Decided June 9, 2004.
Landlord appeals from an order of the Civil Court, New York County, dated March 12, 2002 (Jean T. Schneider, J.) insofar as the order denied landlord's motion to dismiss tenant's first and second counterclaims in a nonpayment summary proceeding. Tenant cross-appeals from the same order insofar as it denied his motion for summary judgment dismissing the petition and for summary judgment on the counterclaims.
Order dated March 12, 2002 (Jean T. Schneider, J.) modified by granting landlord's motion to dismiss the first and second counterclaims and, as modified, affirmed, with $10 costs to landlord appellant.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
Landlord commenced holdover summary proceedings to recover a rent stabilized apartment predicated upon tenant's refusal to execute a renewal lease (Rent Stabilization Code § 2524.3[f]), which set forth a "preferential rent" of $1,595 but provided that the "legal rent" was $2,000. Tenant counterclaimed for rent overcharges, alleging that his original 1993 lease was for $1,500 per month, whereas the last registered rent in 1985 was $361.50. There were no further registrations until 1999, when landlord filed with DHCR for the years 1994-1999, listing the rent actually paid by the tenant in those years as the legal regulated rent. Civil Court denied landlord's motion to dismiss the overcharge claims, reasoning that "although the challenged rent had been paid by the tenant for more than four years prior to the interposition of the claim, it was not registered four years prior to the interposition of the claim". However, since tenant interposed his counterclaims on August 16, 2001, the court was precluded from examining any rental history prior to August 16, 1997 (Rent Stabilization Law [Administrative Code of City of NY] § 26-516[a]; CPLR 213-a). Thus, under controlling caselaw, the rent paid pursuant to the lease extant in 1997 — i.e., $1,580, may no longer be challenged, notwithstanding the absence of registration statements or the belated filing of registration statements (Myers v. Frankel, 292 AD2d 575; Cecilia v. Irizarry, 292 AD2d 557; Matter of Sessler v. DHCR, 282 AD2d 262).
With respect to tenant's cross-appeal for summary dismissal of the petition, although landlord advises that the within proceeding was discontinued, the record indicates that a new proceeding based upon tenant's failure to execute a renewal lease was subsequently commenced. There are factual issues bearing upon whether landlord offered a proper renewal lease, such as whether the legal rent is $1,595 plus applicable guidelines increases, or $2,000. In this regard, unexplained in the record is the discrepancy between the 1999 registrations, which set forth a last regulated rent of $1,595, and the amended 2000 registrations, which for the first time set forth a legal rent of $2,000.
This constitutes the decision and order of the court.