Judge John Stanley

Landlord commenced a summary non-payment proceeding against tenant Spiritos seeking possession of the premises. Spiritos claimed rent overcharge in her answer, seeking summary judgment and a determination of the legal regulated rent under the formula set forth in Thornton v. Baron. Landlord’s predecessor received a J-51 tax abatement, hence, under Roberts v. Tishman Speyer Prop., a landlord could not deregulate an apartment during the time it was receiving such benefits. Landlord changed the status of the premises and adjusted the rent, crediting Spiritos as a result of the recalculation of the arrears owed. The court stated the Appellate Division, First Department disavowed the methodology used by landlord here, noting there was no longer a four year limit to a review of the rental amounts under 72A Realty Associates v. Lucas. After Lucas, the landlord was permitted to produce all available records to determine the legal rent, and may apply the Thornton Default Formula, but only if the subject records were unreliable or did not exist. As such, the court ruled the determination of whether no reliable records existed could not be made by this cross-motion.