Recitation, as required by CPLR §2219(A), of the papers considered in the review of respondents’ motion for summary judgment pursuant to CPLR §3212:Papers NumberedRespondents’ Notice of Motion; Affidavits and Affirmation in Support; and Annexed Exhibits 1Petitioner’s Affirmation in Opposition 2Respondents’ Reply Affirmation 3DECISION /ORDER Upon the foregoing papers, the Decision/Order of this Court is as follows:The within nonpayment proceeding was commenced by petitioner seeking rent arrears from January 2016 through June 2016 at a rate of $1,850 per month. Respondents move for summary judgment dismissing the proceeding on the grounds petitioner the legal regulated rent sought is improper.HISTORYMs. Luz Suero (“respondent”) is the rent-stabilized tenant of record at 910 Riverside Drive, New York, New York, Apartment 3F (“premises”). 910 Riverside LLC (“petitioner”) and respondent entered into stipulation, dated July 16, 2002, under a prior L&T Index No. 53006/2001, where they agreed to the following:Parties, in settlement of this litigation and future litigation about preferential rent, agree on the advice of their attorneys to execute a two-year, rent-stabilized lease, for the period of January 1, 2002 to December 31, 2003. All future renewal leases for the tenant shall be based on the $1,000 monthly rent plus applicable rent stabilization increases, however, the landlord may continue to register this apartment at the legally regulated rent.Since the July 16, 2002 stipulation, the parties executed renewal leases based upon the stipulated $1,000 preferential rent with respective annual Rent Guidelines Board (“RGB”) increases. However, for the renewal period, January 1, 2010 through December 31, 2010, respondent selected a one-year renewal lease at 3 percent annual increase from the prior rent of $1,200.14. Petitioner miscalculated the amount of the increase from $36 to $64.82 or $1,236 to $1264.82. Based upon this erroneous amount, petitioner and respondent executed subsequent renewal leases with erroneous higher preferential rents. The last renewal lease executed on August 25, 2015, for the period January 1, 2016 through December 31, 2016 set the preferential rent at $1,850. According to respondent, the correct preferential rent during this period should have been $1,459.68.By notice of petition and petition, dated June 28, 2016, petitioner commenced this nonpayment proceeding against respondent seeking rent arrears from January 2016 through June 2106 at the monthly rent of $1,850. Respondent appeared pro se and filed an answer with various defenses and counterclaims. Subsequently, respondent’s counsel filed an amended answer with various affirmative defenses and counterclaims, dated January 30, 2017.Respondent now moves for summary judgment seeking: (1) dismissal of the proceeding because petitioner is seeking an unlawful rent; (2) a determination of overcharge in an amount to be determined at trial; and (3) treble damages. Petitioner opposes respondent’s motion.LEGAL ANALYSISPursuant to CPLR §3212, summary judgment is a drastic remedy that deprives litigants of their day in court, and it “should only be employed when there is no doubt as to the absence of triable issues.” See Andre v. Pomeroy, 35 NY2d 361 [1974]; see also, Doize v. Holiday Inn Ronkonkoma, 6 AD3d 573 [2d Dept 2004]. The court’s function is not to determine credibility, but to determine if there exists a triable issue, or if arguably there is a genuine issue of fact. See S.J. Capelin Assocs., Inc. v. Global Mfg. Corp., 34 NY2d 338 [1974]. The movant has the initial burden of proving entitlement to summary judgment and upon such proof, the opposing party must show facts sufficient to require a trial of any issue of fact. See Winegrad v. New York Univ. Med. Center, 64 NY2d 851 [1985](citing, Zuckerman v. City of New York, 49 NY2d 557 [1980].)As set forth in the statute, rent stabilized leases are to be renewed on the same terms and conditions as the underlying lease agreement. See RSL Sections 2522.5(b) and 2522.5(g). Where parties agree that the preferential rent initially granted is intended to endure for the length of the tenancy rather than just the term of the lease, or the parties are silent as to its term, then the tenant is entitled to renewal leases with increases based upon the preferential rent, not the legal regulated rent. See Missionary Sisters of the Sacred Heart ILL v. DHCR, 283 A.D. 284 [1st Dept 2001]; see also, Aijaz v. Hillside, 8 Misc. 3d 73 [App. Term, 1st Dept. 2005]: Colonnade Management LLC v. Warner, 11 Misc. 3d 52 [App. Term, 1st Dept. 2006].It is undisputed that the parties, represented by counsel, agreed in a court-ordered stipulation, dated July 16, 2002, that all future rent increases shall be based upon the $1,000 preferential rent plus applicable RGB increases. It appears however, that for the renewal period, January 1, 2010 through December 31, 2010, petitioner miscalculated the applicable RGB increase from $36 to $64.82 or $1,236 to $1,264.82.Thereafter, the rent charged to respondent for the period January 1, 2011 through December 31, 2011 should be $1,263.11 based upon respondent’s selection of a one-year lease. During this period, petitioner charged respondent $1,320 per month. The rent charged to respondent for the period January 1, 2012 to December 31, 2013 should be $1,354.69 based upon respondent’s selection of a two-year lease. During this period, petitioner charged respondent $1,485 per month. The rent charged to respondent for the period January 1, 2014 through December 31, 2015 should be $1,459.68 based upon respondent’s selection of a two-year lease. During this period, petitioner charged respondent $1,637.74 per month. Finally, the rent charged to respondent for the period January 1, 2016 through December 31,2016 should be $1,459.68 based upon respondent’s selection of a one-year lease. During this period, petitioner charged respondent $1,850 per month.While the court is able to determine the collectible rent for the premises, it is unable to calculate the amount of overcharge because the rent breakdown (attached to respondent’ moving papers as Exhibit E) fails to show any record of rents charged and received prior to June 18, 2014. The law is clear that treble damages are not afforded in an instance where outstanding arrears in and of themselves exceed the amount of overcharge. See 9 NYCRR Section 2526.1; see also, Dodd v. 98 Riverside, 2011 WL 5117699 [Sup Ct, NY County](“the rent overcharge would be the difference between what was actually collected by the owner less what should have been charged”); 72A Realty Assocs. v. Lucas, 28 Misc3d 585 [Civ Ct, NY County], aff’d as modified, 43 Misc3d 47 [App Term, 1st Dept 2011].CONCLUSIONBased upon the foregoing, respondents’ motion for summary judgment is granted insofar as determining the rent chargeable to respondent. The balance of the motion is denied without prejudice. The proceeding is restored to the court’s calendar on 5/23/18 to select a trial date.This constitutes the order and decision of this court.Dated: New York, New YorkMay 7, 2018
