125 Court St., LLC v. Sher

• Decision Date: 19 January 2018
• Docket Number: 2015–2505 K C
• Parties: 125 COURT STREET, LLC, Respondent–Appellant, v. Nancy SHER, Appellant–Respondent.
• Court: New York Supreme Court — Appellate Term

58 Misc.3d 150 (A)
94 N.Y.S.3d 539 (Table)

125 COURT STREET, LLC, Respondent–Appellant,
v.
Nancy SHER, Appellant–Respondent.

2015–2505 K C

Supreme Court, Appellate Term, New York, Second Department, 2d, 11th and 13th Judicial Districts.

Decided on January 19, 2018

Brian F. Ward, Esq., PLLC (Brian F. Ward, Esq.), for appellant-respondent.

Leon I. Behar, P.C. (Leon I. Behar, Esq.), for respondent-appellant.

PRESENT: DAVID ELLIOT, J.P., MICHAEL L. PESCE, THOMAS P. ALIOTTA, JJ

ORDERED that the final judgment is reversed, with $30 costs to tenant, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition; and it is further,

ORDERED that the cross appeal is dismissed as moot.

In this nonpayment proceeding, landlord served a rent demand alleging that tenant owed rent at the rate of $3,700 for January through April 2012, and at the rate of $4,475.65 for May 2012 through October 2013. The petition incorporates the rent demand and alleges, among other things, that the apartment is subject to rent stabilization because landlord is the recipient of an RPTL 421–a tax abatement (see 28 RCNY 6–01 et seq. ). Tenant interposed an answer denying, among other things, the petition's allegation that a proper rent demand had been served, and asserting, among other things, that landlord had fraudulently registered the rents, that landlord had overcharged her, and that landlord had breached the warranty of habitability.

At a nonjury trial, the evidence established that tenant's initial 2005 lease, which was the first lease for the unit, listed a "legal regulated rent" of $9,175 and a preferential rent of $3,540. Each subsequent lease contained a "legal regulated rent" calculated based on that initial $9,175 figure. The renewal lease commencing May 2012 stated a legal regulated rent of $11,388.83 and a preferential rent of $5,000. In September 2013, landlord amended its Department of Housing and Community Renewal (DHCR) filings for tenant's apartment to restate the initial legal regulated rent as $3,540, with increases in the legal regulated rent in subsequent renewal leases calculated from that...