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5-15 W. 91st St. LLC v. Williams

Court Lacks Jurisdiction Over Electrical Charges; Improper Rent Demand Dismisses Action

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NumberedNotice of Motion and Affidavits Annexed           1, 2Affidavits/Affirmation in Opposition    6Reply Affidavits/Affirmation               10Exhibits 3-5, 7-9, 11-13BriefsAffidavit/Affirmation/Acknowledgment of ServiceSur-Reply Affidavits/AffirmationDECISION/ORDER

*1  Based on the foregoing cited papers, the Decision/Order on this motion is as follows: Respondent moves to dismiss this nonpayment proceeding because the court has no jurisdiction to adjudicate indebtedness that arises out of electric charges in excess of the legal regulated rent and because the rent demand lacks a good faith approximation of rent due. Petitioner opposes. Petitioner alleges that they are entitled to seek electric charges pursuant to DHCR Order Granting Permission to Terminate Rent Inclusion of Electricity and Change from Master Metering to Submetering (hereinafter “the DHCR order”). The DHCR order is attached as an exhibit by both parties.Petitioner served a demand for rent as required by RPAPL Section 711(2). The rent demand seeks payment of the tenant’s share of the rent for May 2017 plus electric charges on a variety of dates from April 2014 to May 2017. The petition pleads that the premises is subject to the Rent Stabilization Law. A charge for electricity that a landlord passes on through sub-metering after removing electricity charges from inclusion with the rent cannot be included in the legal regulated rent. 9 N.Y.C.R.R. Section 2522.4(d)(3)(ii). See also 9 N.Y.C.R.R. Section 2522.10 (providing that a charge for electricity as well as any related service surcharge is not part of the legal regulated rent), 9 N.Y.C.R.R. Section 2520.6(c) (defining “rent” so as to specifically exclude surcharges authorized pursuant to 9 N.Y.C.R.R. Section 2522.10). The DHCR order

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