RECITATION, AS REQUIRED BY CPLR SECTION 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:.PAPERS NUMBEREDNOTICE OF MOTION AND AFFIDAVIT AND EXHIBITS ANNEXED 1ANSWERING AFFIRMATION AND EXHIBITS ANNEXED 2REPLYING AFFIRMATION AND EXHIBITS ANNEXED 3DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:Petitioner commenced this nonpayment proceeding seeking monthly rent of $1,020.00 from July 2017, for the subject rent stabilized apartment. The five day notice to tenant states that there is a balance of $595.00 due for July 2017, $1020.00 due each month for the months August 2017 through November 2017.Respondent moves by notice of motion for an order dismissing the proceeding with prejudice on the grounds that documentary evidence demonstrates that the predicate rent demand is defective in that it alleges a monthly rental amount that is in excess of the legal rent. Respondent moves pursuant to CPLR 3211(1) or (7), and pursuant to RPAPL 711(2) as the rent demand fails to provide a good faith approximation of the arrears. The petition seeks monthly rent of $1020.00 for the subject rent stabilized apartment. The respondent moved into the subject apartment around May 1, 2015, and the initial rent was $1000/month. Exhibit B reveals there is a DHCR rent reduction order from 1989 that is still in effect. Petitioner is aware of this 1989 order as the 2014 DHCR order denying petitioner’s application to restore the rent refers to it. There are also DHCR orders from 1994 and 2014 indicating that petitioner is suing for rent that is in excess of the legal monthly rent.The DHCR’s order, dated February 14, 1994, on the landlord’s PAR of the rent overcharge finding issued for the subject apartment, found rent overcharge and an award of treble damages. The 2014 DHCR order is an “order denying owner’s application to restore the rent.” The 2014 DHCR order states that the, “Rent was previously reduced by order issued on 01/25/1989 under Docket Number BK 210091 S based on decreased services…The DHCR finds that conditions upon which an order was issued reducing rent have not been corrected…The owner’s application to restore rent is denied.” 2014 DHCR Order (exhibits B and C)Respondent states that according to the 1994 DHCR order, the legal rent for the subject unit was $278. (1994 DHCR order exhibit B, D) The DHCR Rent Overcharge Finding states that the maximum collectible rent was $278. The DHCR order annexed to the moving papers demonstrate the rent for the apartment is $278. Respondent argues that the overcharge occurred within the four (4) year statute of limitations as the landlord set the rent at $1200 when respondent moved into the apartment in 2015.In opposition petitioner argues that in a prior proceeding (L&T 76533/14), respondent Baker and the petitioner, both represented by counsel, signed a stipulation, dated April 16, 2015, setting the rent at $1,000/month. Petitioner relies on the parties’ agreement in the 2015 stipulation wherein counsel for both sides set the rent for the subject rent regulated apartment. Petitioner argues that assuming arguendo there was a mutual mistake in setting the legal rent at $1000/month, an amount in excess of the legal rent, that is not a grounds to treat the 2015 stipulation as a nullity. Petitioner argues the parties are bound by the two attorney 2015 stipulation. Petitioner fails to attach documentary evidence that the DHCR rent reduction order, setting the rent at $278/month, is not in effect, or has been lifted.In reply, respondent states that when DHCR issues a rent reduction order, rent restoration is permitted only upon a determination by the agency that the landlord is entitled to restoration. Respondent states that petitioner does not dispute the rent reduction order is still in effect, and that DHCR issued an order finding rent overcharge under docket number AX210084 R on March 10, 2014. The Rent Overcharge Finding stated the collectable rent in 2014 was $278, and petitioner fails to produce an order from DHCR restoring the rent.Respondent argues that petitioner cannot circumvent the RSC by private agreement, and a stipulation by counsel cannot be enforced if it is against public policy.DiscussionIn a motion to dismiss pursuant to CPLR 3211(1) and (7), when a party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action. Meyer v. Guinta, 262 AD2d 463, 464 (2nd Dept. 1999) Based on the documentary evidence submitted by both sides, it is undisputed that there is a DHCR rent reduction order in effect setting the rent at $287/month.Summary judgment should only be granted where no triable issues of fact exist. Salino v. IPT Trucking, Inc., 203 AD2d 352 (1994); Andre v. Pomeroy, 35 NY2d 351 (1974). The moving party of a summary judgment motion must establish a cause of action or defense by admissible evidence sufficient for the court to direct judgment in his favor as a matter of law. Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065 (1979). CPLR 3212(b) The party opposing the summary judgment motion must lay bare its proof to establish that any real and alleged matters are capable of being established at trial. Zuckerman v. City of New York, et. al., 49 NY2d 557 (1980). See also Hasbrouck v. City of Gloversville, 102 AD2d 905 (AD 3rd Dept. 1984) aff’d 63 NY2d 916 (1984). If “…the issue is fairly debatable a motion for summary judgment must be denied…” Stone v. Goodson, 8 NY2d 8 at 12, 1960.Rent Stabilization Code (RSC) 2520.13 states:An agreement by the tenant to waive the benefit of any provision of the RSL or this Code is void, provided, however, that based upon a negotiated settlement between the parties and with the approval of the DHCR, or a court of competent jurisdiction, or where a tenant is represented by counsel, a tenant may withdraw, with prejudice, any complaint pending before the DHCR.The application of this regulation is uncomplicated, and the prior 2015 stipulation setting the rent at an amount in excess of the legal collectible rent, is void. It is not an agreement to withdraw a complaint pending before DHCR, and therefore, there is no exception to the RSC. Riverside Syndicate, Inc v. Munroe, 10 NY3d 18, 22 (2008)Petitioner’s reliance on a two attorney 2015 stipulation, from a prior proceeding, wherein the parties set the rent at $1,000/month is not controlling. “[A]n agreement in purported or actual settlement of a landlord-tenant dispute which waives the benefit of a statutory protection is unenforceable as a matter of public policy, even if it benefits the tenant” (Drucker v. Mauro, 30AD3d 37, 38[2006], lv dismissed 7 NY3d 844[2006]; see Rent Stabilization Code [9 NYCRR] 2520.13).” 8 Beach Street Realty Inc v. Blagg, 48 Misc3d 143[A], (AT, 1st Dept. 2015) In the Blagg case there was a ten year gap between the unenforceable stipulation, and the summary judgment motion in the current litigation. In Bridgeview II, LLC v. Mars, 51 Misc3d 29, 32 (AT, 2nd Dept, 11th & 13th Jud Dists, 2015), the Appellate Term held that where the terms of a two attorney stipulation set the rent in violation of the controlling federal statutes, the stipulation could not be enforced.It is well settled that any agreement by a tenant to pay a sum in excess of the legal rent is void. (See RSC 9 NYCRR 2520.13, 2525.1, Jazilek v. Abart Holdings, LLC, 10 NY3d 943 ([2008]). 153rd Street Apartment LLC v. Alveranga, 30 Misc 3d 129[A], (AT 1st Dept. 2010) In Alveranga petitioner argued that the tenant’s overcharge claims were precluded by stipulations in prior summary proceedings. The Appellate Term in the first department held that any agreement by a tenant to pay a rent in excess of the legal rent is void.It is undisputed that the rent demand herein is defective as it seeks a monthly rental amount that is in excess of the legally collectible rent based on the DHCR records. Therefore, based on the documentary evidence submitted, the respondent’s motion to dismiss the petition is granted, and the petition is dismissed.This constitutes the decision and order of the court.DATED: July 13, 2018
