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Judge Clifton A. Nembhard

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Landlord commenced this nonpayment proceeding, and prior to that served a rent demand seeking a balance of over $3,000 for two months. Tenant filed an amended answer including a counterclaim for rent overcharge, and now moved to dismiss arguing the petition failed to state a cause of action as the predicate notice sought rent in excess of that permitted under the Rent Stabilization Law. The apartment was last registered as rent stabilized in 2002 and the legal regulated rent then was nearly $1,600, but has been registered as exempt since 2003 due to high rent vacancy. Torres challenged the claim the apartment was luxury decontrolled, relying on Altman v. 285 W. Fourth LLC, 38 NYS3d 173. She argued as the legal rent before being registered as exempt was less than $2,000, the threshold for deregulation, the apartment was still subject to stabilization, and landlord’s failure to register it as such prohibited it from collecting rent in excess of the prior legal regulated rent. While Altman was controlling authority when the motion was submitted, the Appellate Division resolved the split of authority, thus, the mere fact the last registered rent was less than $2,000 did not prove Torres’ apartment was subject to rent stabilization. The court found Torres overcharge claim unavailing, denying dismissal.