This summary nonpayment proceeding was commenced by WEST 151 STREET REALTY CO LLC (Petitioner) against ANTA MANGUELLE (Respondent) and HENRI MANGUELLE (HM), the rent-stabilized tenants of record, seeking to recover possession of 208 West 151st Street, Apt. # B68, New York, NY 10039 (Subject Premises) based on the allegation that Respondents have failed to pay rent due for the Subject Premises.

Petitioner issued a rent demand dated November 4, 2014, seeking $2,529.00 in arrears for September through November 2014, at a monthly rent of $1252.00. The petition is dated November 17, 2014.

Respondent appeared pro se on November 26, 2014 and filed an answer asserting breach of warranty of habitability and a claim for a rent abatement. The answer further asserted that there was no heat or gas in the Subject Premises.

The proceeding was initially returnable on December 4, 2014. A trial date was set for January 29, 2015, but was further adjourned by the court to February 9, 2015 due to weather conditions. On February 9, 2015, the court (Wendt, J) denied Petitioner's application for an adjournment and transferred the proceeding to the Expediter's Part for assignment to a trial part. On the same date, the proceeding was assigned to Part R for trial, and was discontinued without prejudice by Petitioner who was not prepared to proceed.

Respondent retained counsel, who filed a notice of appearance on her behalf on October 14, 2015. On October 16, 2015, Petitioner moved for an order restoring the proceeding to the calendar and seeking entry of a judgement and a warrant, and Respondent cross-moved for an order allowing her to file an amended answer. The motions were granted on consent pursuant to the parties' stipulation (which was not so-ordered by the court) to the extent of agreeing the proceeding would be restored to the calendar, the petition amended to include all rent due through October 2015, an agreeing to accept Respondent's amended answer. The stipulation further set access dates for repairs and adjourned the proceeding to November 9, 2015 for a settlement conference.

Respondent's amended pleading dated October 15, 2015 asserted defenses including: breach of warranty of habitability; laches; failure of Petitioner to issue a timely renewal lease; that Petitioner had taken illegal rent increases in violation of the Rent Stabilization Law; as well as counterclaims for retaliatory eviction; harassment; a claim for attorneys' fees; and rent overcharge.

On November 9 , 2015, Respondent moved for summary judgment on her rent overcharge claim and sought an order rolling back Respondent's rent to $97.59, and awarding Respondent treble damages and attorneys' fees.

On December 23, 2015, Petitioner cross-moved for an order dismissing Respondent's defenses and second and fourth counterclaims.

On January 4, 2016, the court heard argument and reserved decision.

Although Petitioner's notice of cross-motion states that Petitioner seeks dismissal of the defenses asserted in Respondent's answer, the only claims specifically addressed in the moving papers are harassment and rent overcharge.

The Administrative Code of the City of New York, Housing Maintenance Code Section 27—2004[a][48] defines "harassment" as:

any act or omission by or on behalf of an owner that (i) causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy, and (ii) includes one or more of the following: (a) the use or threatened use of force; (b) repeated interruption or discontinuance of essential services; (c) failing to comply with a HPD issued vacate [*2]order; (d) commencing repeated baseless or frivolous court proceedings against the tenant; (e) removing the tenants's possessions; (f) removing the entrance door to the tenant's apartment, or removing, plugging or disabling the lock to such entrance door, or changing the lock on such entrance door without supplying the tenant a new key; or (g) other repeated acts or omissions of such significance as to substantially interfere with or disturb the tenant's comfort, repose, peace or quiet and that causes or is intended to cause the tenant to vacate or surrender or waive any rights in relation to such occupancy.

Petitioner's motion to dismiss the counterclaim for harassment is denied. Respondent's verified pleading asserts that Petitioner has intentionally deprived Respondent of gas for over a year since may 2014, that Petitioner has failed to abate a mold condition, and failed to provide respondent with heat for five months, that Petitioner intentionally failed to timely offer respondent a renewal lease.

In response Victor Gjonaj, Petitioner's agent states only that this proceeding was commenced in good faith, that Petitioner never intentionally denied Respondent essential services, and that there are currently only two outstanding violations of record as pertains to the Subject Premises. Petitioner does not address the specific claims regarding lack of heat, gas and delay in issuing the renewal lease.

Based on the foregoing the motion to dismiss Respondent's second counterclaim is denied.

The parties allege that Respondent signed a rent stabilized lease for a tenancy commencing May 1, 2011 (no copy of said lease or any lease between the parties is annexed to the motion papers by either party) at a rate of $1200 per month.

The DHCR registration for the Subject Premises as of October 2015 provides that in July of 1995, Petitioner filed an initial 1984 registration for the Subject Premises listing Eloise Kearney as the rent control tenant of record at a monthly rent of $97.59 (Ex A to resps moving papers). Identical registrations were filed for 1990, 1995, 2003-2005, and 2008.

No registration was filed for the years 1985-89, 1991-1994, 1996 - 2002, 2006-2007 and 2009-2010. In 2011, the Subject Premises was registered as vacant at the same rent.

In 2012, the Subject Premises was registered as rent stabilized, Respondent is listed as the tenant of record at a monthly rent of $1300, for a lease term running from May 1, 2011 through April 30, 2013. In 2013, an identical registration is filed but HM is also listed as tenant of record. In 2014 and 2015, the same tenants are listed at a rent of $1352 pursuant to a lease for a term from May 1, 2013 to April 30, 2015.

Respondent shows proof of payment for various months from 2011 through 2014 at a rate that started at $1200 per month and went up to $1252 per month (Ex G to Respondent's moving papers).

Respondent asserts that the Subject Premises was not renovated immediately prior to her tenancy. Respondent asserts fraud and willfulness by Petitioner in setting the rent for the Subject Premises for Respondent as the first rent stabilized tenant of record, but really asserts no specifics to back up these conclusions.

Since September 2014 Respondent has not paid any rent for the Subject Premises.

Petitioner relies on Rent Guidelines Board Order Number 42 which provides in pertinent part that the permissible increase for decontrolled units which became decontrolled after September 30, 2010 is the greater of 50% above the maximum base rent or:

The Fair Market Rent for existing housing as established by the United States Department of Housing and Urban Development (HUD) for the New York City Primary Metropolitan Statistical Area pursuant to Section 8(c)(1) of the United States Housing Act of 1937 (42 USC section 1437f[c][1]) and 24 C.F.R. Part 888, with such Fair Market rents to be adjusted based upon whether the tenant pays his or her own gas and/or electric charges as part of his or her rent as such gas and/or electric charges are accounted for by the New York City Housing Authority (Ex 2 to Petitioner's moving papers).

Petitioner asserts that the 2011 Fair Market Rent established by HUD for a two bedroom apartment is $1403 per month and that this is the maximum legal rent Petitioner was entitled to collect at the commencement of Respondent's tenancy.

9 NYCRR 2523.1 provides:

Every owner of housing accommodations previously subject to the City Rent Law and thereafter rented to a tenant on or after April 1, 1984, shall within 90 days after the commencement of the first tenancy subject to the RSL, give notice in writing by certified mail to the tenant of each such housing accommodation on a form prescribed by the DHCR for that purpose, reciting the initial legal regulated rent for the housing accommodation and the tenant's right to file an application for adjustment of the initial legal regulated rent within 90 days of the certified mailing to the tenant of the notice pursuant to section 2522.3 of this Title.

Notwithstanding the foregoing, where such application is filed four years or more after the first date the housing accommodation was no longer subject to the City Rent Law, the application shall be dismissed pursuant to section 2522.3(c) of this Title.

Petitioner was thus required to file said notice, known as an RR-1, within 90 days of May 1, 2011. It is undisputed that Petitioner failed to do so.

However pursuant to 9 NYCRR 2522.3 (c), Respondent's time to file a fair market rent appeal (FMRA) has elapsed. Said provision provides in pertinent part:

(c) Such appeal shall be dismissed where:

(1) the appeal is filed more than 90 days after the certified mailing to the tenant of the initial apartment registration, together with the notice pursuant to section 2523.1 of this Title; or

(2) the appeal is filed more than four years after the vacancy which caused the housing accommodation to no longer be subject to the City Rent Law.

In Olsen v Stellar West 110, LLC (96 AD3d 440) the Appellate Division held that where the first rent stabilized tenants first sought to challenge the legal rent over four years after the decontrol of the premises, any adjustment of the legal rent was not governed by the provisions applicable to an FMRA, and tenants would be limited to recovering any overcharges paid during the four years immediately preceding the filing of the complaint and to seeking the setting of a legal rent prospectively.

The facts in this proceeding are somewhat unusual in that while Petitioner failed to serve and file the RR-1, Petitioner did timely file registrations for the years 2011 through 2015.

§ 26-512(b)(2) of the Rent Stabilization Code provides that the initial legal regulated [*3]rent:

For housing accommodations which were regulated pursuant to the city rent and rehabilitation law on the local effective date of the emergency tenant protection act of nineteen seventy-four, and thereafter become vacant, the rent agreed to by the landlord and the tenant and reserved in a lease or provided for in a rental agreement; provided that such initial rent may be adjusted on application of the tenant pursuant to subdivision b of section 26-513 of this chapter (emphasis added).

§ 26-516 of the Rent Stabilization Code provides that the legal regulated rent for purposes of determining an overcharge shall be the rent indicated in the annual registration statement filed four years prior to the most recent registration statement in addition to subsequent lawful increases and adjustments.

As noted above, while both parties reference an initial lease and subsequent renewals no such documents are annexed to any of the motion papers. As a determination of the initial legal regulated rent and any overcharge claim in this proceeding must be based in part on an examination of said leases, the court can not determine with finality the issues raised.

To the extent that Respondent seeks to have the rent rolled back to $97.59 its is clear that Respondent is not entitled to said relief (Ramlie v Soufer Family LLC 287 AD2d 388; Murray v Morrison 181 Misc 2d 209) and that portion of Respondent's motion is denied with prejudice.

However the balance of the issues raised by the parties motions can not be determined based on the submissions made by the parties and therefore the balance of the relief sought is denied.

The matter is restored to the Part R calendar for trial on February 9, 2016.

This constitutes the decision and order of this Court.