Recitation, as required by CPLR section 2219(a), of the papers considered in the review of this motion to dismiss:Papers NumberedNotice of motion, affirmations and exhibits annexed 1Affirmation in opposition1 2Affirmation in reply 3DECISION/ORDER AFTER ARGUMENT Petitioner commenced this summary holdover proceeding based upon respondent’s alleged failure to execute a properly offered renewal lease for 89-21 153rd St., Apt. #A4, Jamaica, NY 11432 (the “subject premises”). (See 9 NYCRR §2523.5.) The subject premises are subject to the Rent Stabilization Law of 1969. (See petition, Para. 9.) Respondent, MD Islam, appeared and retained counsel. He moves to dismiss, alleging that the documentary evidence shows that petitioner offered an improper lease renewal. (See CPLR 3211.)A “motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326).” (Cavaliere v. 1515 Broadway Fee Owner, LLC, 150 AD3d 1190 [2nd Dept 2017]). Respondent alleges his tenancy commenced on December 1, 2016. He produces a vacancy lease for the period of December 1, 2016 through November 30, 2017 which lists the monthly rent at $1,200.00. (Notice of Motion, Exhibit B.) Respondent states that in September 2017, he received a lease renewal offer containing a legal rent of $1,445.84. (Notice of Motion, Exhibit C.) Respondent calculates that this is a 20.5 percent increase on the $1,200.00 rent. Respondent notes that the applicable Rent Guidelines Board increases for the date of the renewal are of 1.25 percent and 2 percent for one-year and two-year renewals. On the basis of this calculation, respondent claims petitioner offered an improper renewal lease.Respondent argues that since the vacancy lease only listed $1,200 as the monthly rent, and did not contain a preferential rent rider, petitioner did not preserve a higher legal regulated rent. Consistent with this allegation, Sec. 2521.2 of the Rent Stabilization Code (“RSC”), entitled “preferential rent” states:(a) Where the amount of rent charged to and paid by the tenant is less than the legal regulated rent for the housing accommodation such rent shall be known as the “preferential rent.” The amount of rent for such housing accommodation which may be charged upon renewal or vacancy thereof may, at the option of the owner, be based upon either such preferential rent or an amount not more than the previously established legal regulated rent, as adjusted by the most recent applicable guidelines increases and other increases authorized by law.(b) Such legal regulated rent as well as preferential rent shall be set forth in the vacancy lease or renewal lease pursuant to which the preferential rent is charged.(c) Where the amount of the legal regulated rent is set forth either in a vacancy lease or renewal lease where a preferential rent is charged, the owner shall be required to maintain, and submit where required to by DHCR, the rental history of the housing accommodation immediately preceding such preferential rent to the present which may be prior to the four-year period preceding the filing of a complaint.Respondent argues that since neither the vacancy lease nor the riders contain a preferential rent and legal rent, the $1,200 is the legal regulated rent upon which any renewal increase must be based.Petitioner presents a document which contradicts those of respondent. In particular, petitioner produces a rider which includes calculations of how the rent prior to respondent’s occupancy was $1,154.81 and with a vacancy allowance and long-term increase, the legal regulated rent increased to $1,445.84 (See Affirmation in Support, Exhibit 5.) Petitioner presents DHCR Matter of MD Assaduzzam Khan, Admin. Review Docket No. FV110029RT in support of its claim that its rider is sufficient. In Khan, tenant filed an overcharge complaint. In denying tenant’s petition, the Rent Administrator noted that landlord provided a DHCR-approved lease rider which listed both the legal and preferential rents. In the case before this court, landlord’s rider does not contain the legal and regulated rent. Instead, it only contains the alleged legal regulated rent. Petitioner has not identified any language in the rider which states that $1200 is the preferential rent and $1,445.54 is the legal regulated rent. (See Affirmation in Support, Exhibit 5.) Thus, the aforementioned Khan decision is distinguishable and does not support petitioner’s argument. Therefore, petitioner did not properly preserve the legal regulated rent. Indeed, respondent’s counsel produced an example of the current DHCR rider which includes spaces for both the preferential and the legal rent. (See Reply Affirmation, Exhibit C.)Even if petitioner had properly preserved the legal regulated rent in the lease, petitioner could not demonstrate it offered a proper renewal lease because the prior alleged legal regulated rent is not registered with DHCR. As stated in Jazilek v. Abart Holdings, LLC, 2009 WL 2587517 (Sup Ct, NY County):The penalty for a failure to properly and timely comply with the annual rent registration requirements of RSC §2528.3 is a rent freeze barring an owner from applying for or collecting any rent in excess of: the base date rent, plus any lawful adjustments allowable prior to the failure to register, until the registration is completed. RSC §2528.4; Yorkroad Associates v. New York State Div. of Housing and Community Renewal, 19 A.D.3d 217 (1st Dept 2005).Petitioner did not register either the $1,200 alleged preferential rent or the $1,445.54 alleged legal regulated rent. Rather, petitioner has registered $1,250.00 as the legal regulated rent. The registration documentation lists the amount as a vacancy/renewal lease and does not contain a reference to a preferential rent. Therefore, petitioner cannot collect either the old amount of $1,445.54 or the allegedly new amount of $1,463.91 (for a one-year renewal) or $1,474.77 (for a two-year renewal), since it failed to “properly” register the correct rent (See RSC §2528.4.) (See Affirmation in Support, Exhibit 3.) That issue alone constitutes a basis for dismissal of this proceeding.Based on the foregoing, respondent’s motion seeking dismissal is granted without prejudice. The court reaches no other issue.This constitutes the decision and order of this court.Date 10-03-2018
