Appeal from an order of the Civil Court of the City of New York, Kings County (Phyllis K. Saxe, J.), entered July 11, 2011. The order granted tenant's motion for summary judgment dismissing the petition in a nonpayment proceeding.

ORDERED that the order is affirmed, without costs.

In August 2010, landlord commenced this nonpayment proceeding, alleging that tenant, pursuant to a written rental agreement, had agreed to pay landlord monthly rent of $800 for the premises, and that tenant owed $700 for July 2010 and $800 for August 2010. The petition alleged that the apartment is subject to the Rent Stabilization Law of 1969, that it was registered with the New York State Division of Housing and Community Renewal (DHCR), and that the rent demanded did not exceed the registered rent or the lawful stabilized rent. In an amended answer, tenant asserted that the apartment was not subject to rent stabilization and that he had never executed a rent-stabilized lease for the amount stated in the petition. He further alleged, as an affirmative defense, that landlord was seeking to collect a rent overcharge, warranting the dismissal of the petition.

Tenant moved for summary judgment dismissing the petition. He stated, in his supporting affidavit, that he had lived in the same apartment since 1965, and annexed, among [*2]other things, copies of rent bills from May 1, 2006 through July 1, 2010, which demonstrated that he had been charged a monthly rent of $100 during that period. Tenant contended that his apartment was subject to rent control, because he had moved into the premises prior to June 30, 1971 (the applicable vacancy decontrol date), and because the building, consisting of more than three apartments, had been erected prior to February 1, 1947.

In opposition to the motion, landlord asserted that the apartment was subject to rent stabilization and that, since 2006, the registered monthly rent for the premises had been $800. Although landlord claimed that it was annexing rent registration statements to that effect, the only statements annexed to the opposition papers were for the years 1988 through 1996. Landlord contended that a trial was necessary as there was a triable issue of fact as to whether the apartment was subject to rent control or rent stabilization and as to "whether the rent is $800 or $100 or something else."

By order entered July 11, 2011, the Civil Court granted tenant's motion for summary judgment, upon a finding that tenant had established a "prima facie entitlement to rent control coverage."

We affirm, albeit for reasons other than those stated by the Civil Court.

Tenant, through the submission of his rent bills from May 1, 2006 through July 1, 2010, established that, for the four years prior to the commencement of this proceeding, he had been billed a monthly rent of $100 and that such amount had been accepted by landlord's predecessor. This, together with tenant's sworn averments, constituted prima facie proof of the existence of an agreement, express or implied, for a monthly rent of $100 (see BPIII-548 W. 164th St. LLC v Garcia, 95 AD3d 428 [2012], revg 28 Misc 3d 140[A], 2010 NY Slip Op 51547[U] [App Term, 1st Dept 2010]). Landlord failed to rebut this showing. Even if we assume the truth of landlord's contention that the apartment is rent stabilized (although landlord did not make a sufficient showing of this), landlord submitted no documentation to support its contention that the legal regulated rent was $800, as it submitted neither an executed rental agreement to that effect nor even DHCR registration rent roll reports indicating that amount. Although landlord contended that it had no obligation to continue tenant's "preferential rent," landlord was obligated to demonstrate, at least, that there was a new rental agreement terminating the "preferential rent." Landlord failed to show any new rental agreement whatsoever, and made no factual allegations that could raise a triable issue of fact. Thus, landlord's petition, alleging the existence of a written rental agreement in which tenant agreed to pay monthly rent of $800, should have been dismissed based on the discrepancy between the amount sought in the rent demand and petition, and the amount of the actual agreed-upon monthly rent.

In view of the foregoing, we do not reach the issue of whether the apartment is subject to rent control or rent stabilization.

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. [*3]
Decision Date: February 08, 2013