Recitation, as required by CPLR 2219(a), of the papers considered in the review of these motions:Papers: NumberedRespondents’s Notice of Motion for Summary Judgment and all Exhibits annexed thereto 1Petitioner’s Affirmation in Opposition and all Exhibits annexed thereto 2Respondent’s Reply to Petitioner’s Opposition 3DECISION/ORDER In this Non-Payment case, Petitioner seeks rent arrears in connection with Respondents’ tenancy at 57 Laurel Avenue, Staten Island, New York 10304 (“Premises”). Respondents move for summary judgment dismissing this Non-Payment proceeding alleging that the Petitioner has failed to provide Respondents with a rent-stabilized lease as required by Rent Stabilization Code (RSC) §2522.5 and that the Petitioner has failed to serve Respondents with a proper demand for rent in compliance with RPAPL §711(2). Petitioner opposes. Respondent specifically allege that Petitioner’s rent demand is improper insofar as the amount demanded is incorrect in that it is in excess of the legally collectible rent and that the Non-Payment Petition is fatally defective in that it misrepresents that the rent sought is not in excess of the maximum permissible rent under the Rent Stabilization Law. While considering good faith in determining the propriety of the predicate rent demand, the court must consider the Rent Stabilization Code and Petitioner’s compliance therewith. Should the court find that the Petition contains fundamental misstatements and/or omissions, it will be constrained to dismiss the proceeding. Cintron v. Pandis, 34 Misc.3d 152(A) (N.Y.Sup Ct. App. Term 2012).Rent Stabilization Code §2528.3(a) provides that annual registrations must be filed for rent stabilized apartment; §2528.4 of that Code prevents an owner from collecting rent in excess of the base date with lawful adjustments in the event that it failed to properly register with DHCR. Once registered, the owner may collect legal regulated rent as well as well as arrears provided the amount sought is not in excess of the legal regulated rent for any given year, inclusive of permissible adjustments. Late registration does not, however, validate improper collection of rent. If the amount of rent upon which Petitioner relies to make those calculations is unreliable due to its failure to annually register, dismissal will be supported. Altman v. 285 W. 4th LLC, 143 A.D.3d 415 (1st Dept.).Respondent alleges that the amount sought in the rent demand and Petition is not the legal regulated rent. Respondents direct this court’s attention to the initial legal regulated rent of $230 and correctly argues that, since no registrations were filed until there is no good faith basis for the amount requested in pleadings by either of the acceptable calculations permissible by law to determine the current legal rent — the default formula or the last legal registered rent — the rent being sought by the Petitioner in its pleadings requires payment in excess of the possible legal regulated rent1 and thus the rent demand is defective. Defects in a predicate notice are not subject to cure by amendment and require dismissal of the proceeding. Chinatown Apartments, Inc. v. Chu Cho Lam, 51 N.Y.2d 786, 433 N.Y.S.2d 86, 412 N.E.2d 1312 (1980).Respondents also specifically allege that the Petitioner has failed to provide Respondents with a rent-stabilized vacancy lease as required by RSC §2522.5. In support of such, Respondents attach at Exhibits B-D to their Notice of Motion leases provided to them by the Petitioner, all of which non-compliant with RSC §2522.5.In a holdover proceeding brought pursuant to RPAPL 711 in the Civil Court of the City of New York, a landlord must allege that the apartment is subject to the New York City Rent and Rehabilitation Law (Administrative Code of the City of New York former §Y51-1.0 et seq.; now §26-401 et seq)., the New York City Rent Stabilization Law (Administrative Code former §YY51-1.01 et seq.; now §26-501 et seq)., or neither law. In the case of the owner of a building under the Rent Stabilization Law (as is the petitioner), the landlord must also allege that he is a member in good standing of the Rent Stabilization Association and that he is in compliance with the Rent Stabilization Law and Code (see, 22 NYCRR former 2900.21 [e] [2]). Villas of Forest Hills Co. v. Lumberger, 128 A.D.2d 701, 702, 513 N.Y.S.2d 116, 117-18 (App. Div. 1987)Petitioner in its opposition papers fails to dispute the notion that a rent-stabilized vacancy lease was ever provided to the Respondents.Based on the foregoing, Respondents motion is granted in its entirety and the proceeding is dismissed without prejudice.The foregoing constitutes the Decision/Order of this court.Dated: December 21, 2018Staten Island, New York
