Recitation, as required by CPLR 2219(a), of the papers considered in review of Petitioner’s motion to: amend the petition and for a final judgment for all rent arrears owed to date and for Respondent’s cross-motion for a hearing on her warranty of habitability claims;Papers NumberedNotice of Motion and Annexed Exhibits 1Notice of Cross Motion and Annexed Exhibits 2Affirmation in Opposition to Cross Motion and in Reply to Motion and Annexed Exhibits 3Affirmation in Reply and Annexed Exhibits 4DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on this Motion and Cross-Motion is as follows:Petitioner commenced this summary holdover proceeding on November 29, 2017, to recover possession of the subject premises, alleging Respondent occupied the premises solely as incident to employment as superintendent of the building and that such employment had been terminated. On July 18, 2018, the parties, both represented by attorneys, entered into a stipulation of settlement, wherein it was agreed, in pertinent part, that Keith Faison and Tanya Taylor are the rent stabilized tenants of the subject premises. The legal rent was set at $1803.30 per month for the initial lease term. Respondents were granted a preferential rent ongoing of $1100 per month beginning August 2018 and including a two-year lease term beginning November 1, 2018. Respondents agreed to pay $15,000 in arrears, calculated using a $1500 per month preferential rent from the time Mr. Faison was terminated as superintendent (October 2017) to the date of the stipulation. The stipulation further provided that if the “[$15,000] arrears payment is fully paid [by August 30, 2018]…, this preferential rent shall continue thereafter without increase throughout their residence in the subject premises.” Upon default in payment, the stipulation provided that Petitioner may move for appropriate relief, including a judgment and warrant.One day after the $15,000 was to be paid pursuant to the stipulation — on August 31, 2018 — Petitioner served the instant motion. Although the notice of motion seeks a final judgment and warrant, in its opposition to the cross-motion, Petitioner states that it is “is simply seeking that the preferential rent become univariable, as were the terms of the stipulation” (10, Petitioner’s opposition to cross-motion). Likewise, in paragraphs seven through ten of these papers Petitioner states it is not seeking for a rent regulated tenancy to be forfeited or a warrant to be executed. Rather, Petitioner repeatedly states, “it is simply seeking that the preferential rent becomes unavailable…” Petitioner took the same position at oral argument. This Court further notes that Petitioner’s attorney’s affidavit in support of its motion never states what judgment amount it is seeking. Petitioner — while arguing for a legal rent — annexes a bill from its property manager showing that Petitioner continued to bill Respondent at the agreed preferential of $1100 a month, even after Respondent allegedly defaulted on the stipulation.Respondents oppose the motion and they cross-move to dismiss the petition and complete court ordered repairs. Alternatively, Respondents seek an abatement.It is uncontested that $18,300 was tendered by Respondents and accepted by Petitioner on October 25, 2018. This payment consisted of the $15,000 owed in arrears plus $1100 a month for August through October, as provided for in the July stipulation.Petitioner, is in fact, seeking a declaratory judgment from the Court, that because Respondents defaulted of the stipulations, they are no longer entitled to the preferential rent agreed to in the stipulation. This relief is beyond the power granted to the Court (see, CPLR §3001; see also Buck v. Civil Court of the City of New York, 88 AD2d 597, 597 [2nd Dept 1982]). Accordingly, Petitioner’s motion is denied.Respondents’ cross-motion to dismiss is likewise denied since the proceeding was settled in August 2017, per the parties’ stipulation. To the extent Respondent is seeking repairs, they failed to submit an affidavit from someone with personal knowledge regarding the status of repairs. As such, all relief related to an alleged failure to do repairs is likewise denied.In rendering this ruling, the Court makes no finding as to the merits of the claims and defenses of the parties, as Petitioner may commence an action for declaratory judgment in a proper forum.This constitutes the decision and order of the Court.Dated: November 21, 2018
