DECISION/ORDER In this holdover proceeding, petitioner seeks to gain possession of 215 West 134th Street, Apartment #3F, New York New York 10030 (“premises”). The premises is subject to the Rent Stabilization Law of 1969, as amended. Petitioner is the landlord and owner of the premises who purchased the premises pursuant to a Judgment of Foreclosure and Sale dated June 14, 2014 and filed on August 2, 2016. The Referee’s Deed was recorded on October 17, 2016. Respondent is the rent stabilized tenant of the premises, who entered into possession in September 2012 with petitioner’s predecessor in interest.Petitioner alleged that respondent failed to sign a renewal lease and based upon respondent’s failure to sign, petitioner served respondent a notice pursuant to Rent Stabilization Code §2524.2(c)(1), 2524.3(f) and 2523.5 which elected to terminate respondent’s tenancy effective April 27, 2017. Respondent failed to vacate the premises by April 27, 2017 and petitioner commenced this proceeding by Notice of Petition and Petition dated April 28, 2017. The proceeding appeared in Part D on May 17, 2017. On June 20, 2017 respondent, by counsel, interposed a Notice of Appearance, Answer, and Notice of Motion to Dismiss or Discovery. The Answer alleged, inter alia, that the petition failed to state a cause of action and that the predicate notices are insufficient to maintain the proceeding and fail to state a cause of action. The Answer contained counterclaims for rent overcharge and attorneys fees. Respondent moved for summary judgment and petitioner cross moved for summary judgment. By Decision/Order dated September 13, 2017, the Hon. Jack Stoller denied both motions and held there was a colorable cause of action, on both sides, with material facts in dispute as to the 2016 is valid.Prior to trial, counsel for petitioner and respondent entered into a “So Ordered” stipulation dated August 6, 2018, in which the following documents were admitted into evidence: certified deed; certified MDR; certified DHCR rent registration; certified judgment of foreclosure; lease dated September 1, 2014; unsigned renewal lease form dated November 15, 2016 with no preferential rent; signed lease renewal dated November 15, 2016 with preferential rent that was not returned; mailing receipts dated November 15 and 28; unsigned lease renewal dated November 15, 2016 with preferential rent; lease dated July 30, 2016; letter dated June 16, 2012; DHCR rent registration history of apartment 3F certified on May 17, 2018 and August 2, 2017; rent reduction orders dated December 4, 2017 and January 31, 2005; and DHCR file; relevant DOB and ECB violations. The stipulation also allowed the parties to rely on oral testimony as well as the prior affidavits submitted on summary judgment as well as the Verified Petition and all other matter that is “properly the subject of judicial notice”. The Stipulation required the parties to submit briefs to the Court by September 28, 2018 at 9:30 am.1Petitioner alleges that it purchased the building out of foreclosure and had no prior relationship with the prior owner or manager of the building. Petitioner states that after it purchased the building, it was unable to obtain any lease documentation for the tenants. Within the first two weeks after the building was purchased, petitioner requested the tenants to provide it with any such documentation. According to petitioner, respondent forwarded a two year renewal lease for the premises which commenced October 1, 2014 and expired September 30, 2016 with a monthly preferential rent of $1,100.00 and a stated legal rent of $2,463.53. Based upon the lease provided to petitioner by respondent, on November 15, 2016 petitioner sent respondent a renewal lease which set for a legal rent for a one year renewal at $2,463.23 with a preferential rent of $1,900.00 or a two year lease with the legal rent of $2,512.80 or $preferential rent of 1,975.00. In addition to the rents being set in accordance with the lease provided by respondent, the new rents were also set in after consultation with HRA who agreed to pay the rent.Respondent failed to execute and return the renewal lease forwarded on November 15, 2016 and another lease was forwarded on November 28, 2016. The second lease forwarded to respondent did not contain a preferential rent. Approximately four months after the renewals were sent to respondent, respondent produced a new lease which commenced on August 1, 2016 and expired August 30, 2018 with a stated legal rent of $1,15.00 per month and a preferential rent of $750.00. Petitioner alleges that the second lease is a fraudulent document and/or that the lease was executed after title had already been conveyed to petitioner. Additionally, petitioner alleges that the lease is void or voidable as it was executed on the eve of completion of the foreclosure action and well after the filing of the Notice of Pendency.Respondent alleges that he was not required to sign the renewal lease issued in November of 2016 as he already had a lease in effect that was not set to expire until August, 2018. Respondent alleged that the foreclosure was after he entered into the renewal lease with the prior landlord and that the foreclosure had no bearing on his current lease or his rights as a rent stabilized tenant. Combined Ventures, LLC v. Fiske House Apt. Corp., 74 AD3d 1119 (2nd Dept. 2010). Pisani v. Cominger, 36 AD2d 593 (1st Dept 1971). Respondent also attacked the legitimacy of the alleged regulated rent. Respondent alleged there were inexplicable jumps in the rent registration history and that the premises were not registered.2Ms. Ida Kolic, petitioner’s employee, testified for petitioner. According to Ms. Kolic, she sent two renewal leases to respondent, both dated November 15, 2016. The first lease was sent to respondent on November 15, 2016 and the second lease was sent to respondent on November 28, 2016. Ms. Kolic testified although both leases were dated November 15, 2016, one lease contained a preferential rent and the other lease did not which was due to a clerical error on her part.The New York City Rent Stabilization Law (“RSL”) §26-511(d) mandates that all rent stabilized leases be accompanied by the appropriate riders. For all rent stabilized tenant, an owner must furnish to each tenant signing a vacancy lease or renewal lease, a rider, in a form promulgated or approved by the DHCR, in larger type than the lease, describing the rights and duties of the owners and tenants as provided for under the RSL. In a case directly on point, Haberman v. Neumann, WL 222807 (AT 1st Dept. 2003), the Appellate Term held:“Since landlord’s notice for renewal of the lease was not in the form “prescribed” or “approved” by the DHCR (see Rent Stabilization Code §2523.5[a]), and the requisite rider promulgated by the DHCR was not attached (see, Rent Stabilization Code §2523.5[d][ii], this holdover proceeding based upon tenant’s alleged refusal to renew lease does not lie”.Based upon petitioner’s testimony that it only sent respondent the lease, and nothing else, petitioner’s failure to provide respondent with the mandatory rider renders this proceeding defective and this failure to renew holdover proceeding must be dismissed. Although respondent has failed to state that he was confused by the different leases and has utterly failed to explain why he provided petitioner with the first lease (rent of $1,015.00) and then four months after being sent a renewal lease with an increased preferential rent ($1900.00 or $1,950), respondent conveniently presented a second “current” lease which contained a preferential rent of $750. Despite the lack of evidence on the lease, since this proceeding may not be maintained, this Court does not reach the any of the issues which surround the allegation of fraud, the appropriate place to commence this proceeding and/or the legal regulated rent for the premises.This Constitutes the Decision and Order of this Court. Trial exhibits may be picked up in Room 225, Window 9, Monday through Friday between 9:30 a.m. and 4:30 pm. Any exhibits that are not picked up within 30 days may be destroyed.Dated: New York, New YorkNovember 8, 2018
