NYSANDY12 CBP7 LLC v. Negron

• Decision Date: 10 September 2019
• Docket Number: 1460/2019
• Citation: NYSANDY12 CBP7 LLC v. Negron, 64 Misc.3d 1238(A), 118 N.Y.S.3d 374(Table) (N.Y. Civ. Ct. 2019)
• Parties: NYSANDY12 CBP7 LLC, Petitioner-Landlord, v. Perry NEGRON, Respondent-Tenant.
• Court: New York Civil Court

64 Misc.3d 1238 (A)

118 N.Y.S.3d 374 (Table)

NYSANDY12 CBP7 LLC, Petitioner-Landlord,

v.Perry NEGRON, Respondent-Tenant.

1460/2019

Civil Court, City of New York.

Decided September 10, 2019

Petitioner's Attorney, Avi Kaniel, Esq. Gutman, Mintz, Baker & Sonnenfeldt, LLP, 813 Jericho Turnpike, New Hyde Park, NY 11040, (516) 775-7007

Respondent Pro Se: Mr. Perry Negron

Diane E. Lutwak, J.

This is a Nonpayment Proceeding under Section 711[2] of the New York State Real Property Actions and Proceedings Law that Petitioner NYSANDY12 CBP7 LLC commenced by Petition dated January 7, 2019 seeking rent arrears of $3056.86 from Respondent Perry Negron, the Rent Stabilized tenant in Apartment #1A at 4130 Carpenter Avenue, Bronx, New York. The Petition alleges arrears comprised of rent at a monthly rate of $967.90 for the months of December 2018 and January 2019, monthly "MCI" (major capital improvement) charges of $28.65 for the months of March 2017 through November 2018 and an "MCI TEMP" charge of $519.41. In his answer, Respondent pro se disputed the amount claimed due, raised a "general denial" and a defense of payment or partial payment.

After settlement negotiations failed, first in the Resolution Part and then at pre-trial conferences in the Trial Part, the case proceeded to trial on September 9, 2019, at which Petitioner appeared by counsel and Respondent appeared pro se .

TRIAL

Petitioner's Case

At trial, Petitioner proved itscase through the testimony of its agent Lynnette Davis, who works for Petitioner's management company "Simply Better Apartment Homes", and documents admitted into evidence without objection. Petitioner is the owner and landlord of the premises pursuant to a deed dated December 22, 2015. The building is a registered multiple dwelling and Respondent's apartment is Rent Stabilized and registered with the New York State Division of Housing and Community Renewal (DHCR). The DHCR registration history statement reflects that the apartment is and has been registered in Respondent's name since 2011 and that the current legal regulated rent is $967.90.

Respondent's most recent fully executed renewal lease was dated April 5, 2016 and ran from August 1, 2016 through July 31, 2017 with a monthly rent of $939.25. That renewal lease states on its face that the rent "may be increased or decreased by order or annual updates of the [DHCR]".

Petitioner's agent testified that the DHCR authorized a rent increase for MCIs after the date of Respondent's last lease renewal. Certified copies of a DHCR "Order Granting MCI Rent Increase" and a "Modification Order for [MCI](s) Due to J-51 Tax Abatement" were admitted into evidence. The original MCI Order was issued on April 15, 2016, effective September 1, 2014, and authorized a permanent rent increase of $35.40 per month for Respondent's 3-room apartment ($11.80 per room) collectible as of May 1, 2016; given the retroactive effective date of September 1, 2014, the Order authorized an additional temporary increase to cover the MCI increases due for the 20-month period from September 2014 through April 2016 ($35.40 x 20 = $708) to be charged in limited increments over time as permitted by the Rent Stabilization Code. The modification Order was issued on February 10, 2017, effective January 1, 2016, and provided a temporary monthly offset, due to a J-51 Tax Abatement, of $6.75 ($2.25 per room), thereby reducing the monthly MCI to $28.65 as of January 1, 2016.

Petitioner's computer-generated rent ledger runs from December 23, 2015 to the present and shows rent arrears due through September 2019 of $8921.56. For the period of January 2016 through April 2016 the only charges on the ledger are for rent at the monthly rate of $939.25. Beginning in May 2016 and continuing through January 2017 the ledger lists in addition to the rent of $939.25 the permanent MCI at the rate of $35.40 and the temporary MCI at the rate of $18.25. In February 2017 the ledger deducts $1358.90 from the balance due with the notation "Forwarding Balance severed per NYC Index B-17-003408" and charges rent at the monthly rate of $974.65 (rent of $939.25 plus the permanent MCI of $35.40) plus a separate charge for the temporary MCI of $18.25. In March and April 2017, the ledger charges rent of $974.65 plus the temporary MCI charge of $18.25. For the months of May 2017 through January 2018 the ledger charges rent of $974.65 plus a separate temporary MCI charge of $53.65. In February 2018 the ledger charges rent of $974.65 plus a final temporary MCI charge of $6.15. In the months of March 2018 through August 2018 the ledger charges rent of $974.65 and no other charges. Credits of $202.50 and $6.75 were applied on July 20, 2018 and August 1, 2018, respectively, referencing "J-51 Docket #FN610018X". For the months of September 2018 through September 2019 the ledger charges rent of $967.90 (rent of $939.25 plus the modified permanent MCI of $28.65) and no other charges. Throughout much of the period covered by the rent ledger up through January 2019 the "Payments" column reflects monthly payments of $939.25; no further payments were credited after January 2019.

The Court took judicial notice at Petitioner's request of the following documents in the court file: Rent Demand, Notice of Petition and Petition and the affidavits of service of those documents. Petitioner's attorney requested that the Petition be amended to date and that Petitioner be awarded a judgment for $8921.56.

Respondent's Case

Respondent pro se testified on his own behalf and stated that his position, based on information he obtained from a lawyer and his own research, is that because his last lease renewal expired on July 31, 2017 and Petitioner did not prove there to be a current lease, the proceeding should be dismissed. In response to the Court's inquiry as to what rent if any he thinks he owes Respondent answered that he could not say, "because of the fluctuations." Respondent presented no proof of any payments he made other than the ones recorded on Petitioner's ledger. When the Court asked why he does not have a current renewal lease Respondent answered that he was not offered one.

DISCUSSION

Certainly, as a Rent Stabilized tenant, Respondent has the right to a timely offer of a renewal lease for a one- or two-year term that conforms to the requirements of the Rent Stabilization Law and Code. See Rent Stabilization Code § 2522.5(b)(1) . The Rent Stabilization Code further provides tenants with a remedy if a landlord fails to offer a proper and timely renewal lease: When the tenant does get such an offer it will commence, at the tenant's option, "either (i) on the date a renewal lease would have commenced had a timely offer been made, or (ii) on the first rent payment date occurring no less than 90 days after the date that the owner does offer the lease to the tenant. In either event, the effective date of the increased rent under the renewal lease shall commence on the first...