Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion.PapersRespondent’s Notice of Motion, Affirmation, Affidavit, Memorandum of Law Exhibits 1Petitioner’s Affirmation in Opposition, Exhibits 2Respondent’s Affirmation in Further Support 3DECISION/ORDER Upon the foregoing citing papers, the Decision and Order on this Motion are as follows: In this residential nonpayment of rent matter for a rent stabilized apartment, respondent moves to dismiss for failure to serve the predicate notices and Notice of Petition and Petition. In the alternative respondent moves to vacate all stipulations between the parties and admit an amended answer: Petitioner opposes in all respects and notes that rather than vacating the stipulation the amounts owed may be amended while preserving the judgment. For the reasons stated within, the motion to dismiss due to failure to serve the predicate notices, Notice of Petition and Petition is denied, the motion to vacate the stipulations as well as admit the late answer are granted and deemed served nunc pro tunc. The matter is scheduled for a status conference in Part E at 9:30 am on June 4, 2018.The matter was originally calendared on December 14, 2017 and after several adjournments the matter was settled by stipulation on January 30, 2017. Respondent signed the stipulation of January 30, 2017 and subsequent stipulations without the benefit of counsel. After respondent retained counsel this motion followed.Respondent seeks to dismiss the proceeding due to a failure to serve both the predicate notice and Notice of Petition and Petition. Other than an attorneys assertions the only proof offered is a conclusory denial of service in the affidavit in support of the motion. Respondent indicates she was only made aware of the proceeding by receiving a post card from the Court. Petitioner has provided an affidavit of service of the Notice of Petition and Petition alleging service by conspicuous place and mail service. As to service of the predicate notice, petitioner does not provide an affidavit of service or meaningfully address the allegation but the petition indicates that there was an oral demand for rent.Respondent’s conclusory statements regarding a failure to serve the Notice of Petition and Petition are insufficient in the face of a process servers affidavit of service. Slimani v. Citibank, N.A., 47 A.D.3d 489, 849 N.Y.S.2d 541 (1st Dep’t 2008). The motion to dismiss based upon failure to serve is therefore denied.Respondent contends in his affidavit that no predicate notice was served. Respondent’s counsel notes that petitioner does not provide a sworn assurance of service of the predicate notice but the petition alleges an oral demand for rent. Given that petitioner has rebutted the contention that no predicate notice was served through the allegation of oral demand in the petition, this rebuttal will suffice to defeat the motion at this time. The contention of an oral demand constitutes a factual allegation that defeats the allegation of failure to serve a predicate notice. A motion to dismiss must give to the non-moving party the advantage of every inference that can properly be drawn from the facts presented. See Falk v. Havemeyer, 144 A.D. 688 (N.Y. App. Div. 1911); Kraus v. Birnbaum, 200 N.Y. 130 (N.Y. 1910); Burger v. Burger, 111 N.Y. 523 (N.Y. 1888). Therefore, the motion to dismiss based upon failure to serve a predicate notice is denied.A key issue in this case is the issuance of a rent reduction Order from DHCR issued on May 4, 2017.1 The Order required that as of October 1, 2016 “the rent is reduced to the level in effect prior to the most recent guidelines increase for the tenant’s lease which commenced before the effective date of this Order.” Respondent cites to Highbridge House Ogden LLC v. Del Valle, 54 Misc. 3d 1220(A), 54 N.Y.S.3d 610 (Civ. Ct. Bx. 2017) as persuasive authority. Respondent contends that the conditions in his home were horrendous including but not limited to failure to provide gas service extensive periods of time.2 Petitioner provides an Order Restoring Rent from DHCR dated December 8, 2017 which restored the rent to its previous level as of August 1, 2017.Based upon the rental breakdown at Exhibit S of respondent’s motion, respondent’s rental arrears date from August 2016. Petitioner’s calculation of the arrears was based upon a monthly rent of $1,469.31 when the authorized rent after the May 4, 2017 DHCR rent reduction Order provided for a monthly rent of $1,402.70. Simply put, respondent’s rent should have been frozen at a rate of $1,402.70 from October 1, 2016 through August 1, 2017 when the Rent Restoration Order at Exhibit 2 of petitioner’s affirmation in opposition would have gone into effect. Respondent provides and petitioner does not contest a rental breakdown that indicates that respondent’s rental arrears were calculated at a rate more than the DHCR permitted rate during the rent reduction order period.Respondent’s motion to vacate the stipulations and their associated judgments is granted. In addition to the natural disabilities that the self-represented face when opposed by experienced counsel, respondent notes that if the rent reduction Order was effective, respondent agreed to pay arrears based on a monthly rate more than the legal rent.3 Additionally, respondent’s counsel notes that no consideration was given to respondent to conditions egregious enough to compel DHCR to issue the rent reduction Order. Contrary to petitioner’s argument, this disparity of position cannot be resolved only by adjustments in the amounts owed. Petitioner was pursuing every dime owed while respondent was not having any of the breaches of the warranty of habitability addressed. It is conceivable on these facts that respondent may owe little or nothing after the appropriate abatements and reduction orders are taken into consideration.While stipulations are to be binding, this rule is not absolute. A stipulation may be vacated based upon ignorance, fraud, mistake, misrepresentation, nonrepresentation, unconscionability or duress. In the case at bar, the fact that the tenant was unrepresented and did not address the issues of the rent reduction order, the lack of any repairs and potential abatement compel vacating the stipulation.4As to the amended answer, review of the amended answer in context with these facts indicate that admission and service of the proposed answer nunc pro tunc is warranted. The proposed amended answer articulates the basis of this motion, that the rent demanded exceeded the legal rent due to the rent reduction order, that a substantial abatement would be due for conditions including but not limited to lack of cooking gas for many months. This line of defense would likely not have been apparent to a pro se litigant and the delay should not prevent this defense from being asserted. See Guzetti v. City of New York, 32 A.D. 3d 234, 238 (N.Y. 2006. In addition, the Court notes the oral demand for rent only supported by the allegation in the petition and without a supporting affidavit naturally leads to the question of exactly how much rent was demanded.This is the decision of the Court and copies will be mailed to the attorneys for the petitioner, each of the respondents and made available in the Courtroom.Date: April 23, 2018
