130 E. 18th, L.L.C. v. Mitchel
| Decision Date | 08 December 2015 |
| Citation | 50 Misc.3d 55,23 N.Y.S.3d 530 |
| Parties | 130 EAST 18th, L.L.C., Appellant, v. Jean MITCHEL, Tenant, and Lucie Delice, Respondent. |
| Court | New York Supreme Court — Appellate Term |
The Law Office of Rosenblum & Bianco, LLP, Rockville Centre (Joan Burrell–Rubel of counsel), for appellant.
Seymour W. James, The Legal Aid Society, Brooklyn (Patrick J. Langhenry of counsel), for Lucie Delice, respondent.
PRESENT: ELLIOT, J.P., PESCE and SOLOMON, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Marcia J. Sikowitz, J.), dated May 22, 2013. The order, insofar as appealed from as limited by the brief, (1) upon renewal, granted the branch of a motion by tenant Lucie Delice seeking to vacate a final judgment of the same court entered June 20, 2012, and (2) granted the branches of the motion seeking to vacate so-ordered stipulations dated June 20, 2012 and July 26, 2012, leave to file an amended answer, and partial summary judgment dismissing the petition based upon the affirmative defense of rent overcharge, in a nonpayment summary proceeding.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
This nonpayment proceeding was commenced by landlord to recover unpaid rent at the rate of $1,272 per month for the subject rent-stabilized apartment. Lucie Delice (tenant) served an answer which included a counterclaim, and, on June 20, 2012, while appearing pro se, entered into a stipulation pursuant to which, among other things, a final judgment was to be entered awarding landlord possession and the sum of $5,759.90, a warrant was to issue, tenant was to make specified payments on specified dates, and landlord could execute the warrant upon tenant's default. A final judgment was entered as against tenant on that date. On July 26, 2012, the parties entered into a second so-ordered stipulation which amended the payment schedule. In August 2012, tenant moved to vacate the final judgment. The Civil Court denied the motion by order dated August 31, 2012.
Tenant then moved, insofar as is relevant to this appeal, for leave to renew her prior motion and, upon renewal, to vacate the final judgment; to vacate the two so-ordered stipulations; for leave to file an amended answer which included an affirmative defense and counterclaim alleging that landlord had been seeking to collect a rent overcharge; and for summary judgment dismissing the petition based upon tenant's rent-overcharge claims. In support of her motion, tenant demonstrated that the Department of Housing and Community Renewal (DHCR) had issued a rent reduction order on March 14, 1996, which had frozen the rent for the subject apartment at $658.13 based upon landlord's failure to provide services, and that no restoration order had ever been issued by DHCR. Tenant argued, therefore, that the monthly rent of $1,272 sought by landlord in this proceeding was unlawful.
Landlord appeals from so much of an order of the Civil Court dated May 22, 2013 as vacated the stipulations and the final judgment entered pursuant thereto, granted tenant leave to file an amended answer and deemed the answer attached to tenant's motion to have been served and filed, and dismissed the petition based upon the affirmative defense that the monthly rent upon which this proceeding was based was unlawful. Landlord argues on appeal that it had restored the services at issue in the rent reduction order and, therefore, that no restoration order was necessary in order to restore the rent, and that, in any event, vacancy increases are permitted even when a rent reduction order is in place.
Contrary to landlord's contention, it is clear that rent restoration is permitted only upon a determination by DHCR that a landlord is entitled to restoration (Rent Stabilization Code [RSC] [9 NYCRR] § 2523.3 []; DHCR Policy Statement 90–2 ["where DHCR determines that an owner has failed to maintain services, such owner shall not be entitled to a rent restoration until he or she has made an application and DHCR issues an order restoring the rent"]; see Atsiki Realty LLC v. Munoz, 48 Misc.3d...
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