Recitation, as required by CPLR §2219(A), of the papers considered in the review of petitioner’s order to show cause to restore proceeding to the court’s calendar, to strike respondents’ notice of settlement of order and to deem respondents’ motion and action abandoned pursuant to CPLR §2219 and 22 NYCRR 208.33:Papers NumberedRespondents’ Notice of Proposed Settlement of Order 1Petitioner’s Order to Show Cause; Affirmation in Support, Memorandum of Law, Proposed Counter Order and Annexed Exhibits 2Respondents’ Affirmation in Opposition to Counter Order and in Support of its Proposed Order Reply 3Petitioner’s Reply Affirmation and in further support of its Counter Order 4DECISION / ORDER Upon the foregoing papers, the Decision/Order of this Court is as follows:HISTORY326-338 East 100th LLC (“petitioner”) commenced a nonpayment proceeding against Raul Cortes and Joel Cortes (“respondents”), the rent-stabilized tenants of record for the apartment located at 338 East 100th Street, Apt 1C, New York, New York 10020 (“premises). Respondents, through their counsel interposed various affirmative defenses and counterclaims, including rent overcharge and treble damages. Subsequently, respondents moved for summary judgment: (1) dismissing the proceeding; (2) setting the monthly legal regulated rent at $2,186.82 for the period July 2014 to the present; and (3) awarding them a finding of rent overcharge and treble damages for payments made in excess of the legal regulated rent during that period. Petitioner cross-moved to dismiss respondents’ third and fourth affirmative defenses based upon rent overcharge and laches, as well as respondent’s counterclaims, which are grounded in rent overcharge, treble damages, breach of warranty of habitability, and a declaratory order to correct.By Decision and Order, dated August 8, 2017, the court granted respondents’s motion for summary judgment, finding, among others:Respondents are to be awarded a judgment against the petitioner in the amount collected in excess of the legal collectible rent less unpaid rent at $2,029.53. Respondents are entitled to treble damages plus interest on said amount.***Based upon the foregoing, respondents’ motion for summary judgment is granted. The petition is dismissed with prejudice and the respondents are awarded a judgement on their counterclaims. The parties are directed to settle an order on notice pursuant to the provisions of CPLR Section 2219 reflecting the monetary awards cited herein and direct them to the Hon. Timmie Elsner.On August 18, 2017, respondents’ counsel served petitioner’s counsel a copy of the court’s decision with Notice of Entry.Pursuant to the court’s August 8, 2017 decision/order, respondents submitted a Notice of Settlement of Proposed Order, dated November 5, 2018 to the court. By order to show cause, dated November 12, 2018, petitioner moves to restore this proceeding to the court’s calendar, to strike respondents’ notice of settlement of order and the action abandoned pursuant to CPLR §2219 and 22 NYCRR 208.33. Petitioner also submitted a Proposed Counter Order, dated November 14, 2018.FACTSThe facts are largely undisputed. In September 2017, respondents’ counsel drafted a proposed order and submitted same to petitioner’s counsel, Daniels, Norelli, Cecere & Tavel, P.C. Petitioner’s counsel refused to agree upon the proposed order or to negotiate the terms of the order to be submitted to the court. Moreover, petitioner’s counsel advised respondents’ attorney that their client would be retaining new counsel.On September 15, 2017, petitioner retained Rose & Rose, P.C. as their new counsel. On September 18, 2017, petitioner’s new counsel filed a Notice of Appeal of the court’s August 8, 2017 decision/order. According to respondent’s counsel, petitioner’s new counsel refused to negotiate a proposed order because of the appeal. Respondents’ counsel left a voicemail message with petitioner’s counsel on June 12, 2018 and followed up with emails on June 14, 26, and 27.On July 30, 2018, petitioner again changed counsel and retained Kossoff, PLLC. Respondents’ counsel re-commenced settlement negotiations with petitioner’s new counsel. These negotiations were unsuccessful.LEGAL ANALYSISA. Order to Show CausePursuant to 22 NYCRR 208.33, the time period for settling an order on notice is within sixty days of the decision directing parties to do so. “Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless, for good cause shown.” See 22 NYCRR 208.33(b). The Court of Appeals in Brill v. City of New York, 2 NY3d 648 [2004] defines “good cause” for the delay as a “satisfactory explanation for the untimeliness — rather than simply permitting meritorious non-prejudicial filings, however tardy.”In this proceeding respondents have shown a “satisfactory explanation” for the delay in submitting a proposed notice of settlement. At the outset, the court directed the parties to settle an order on notice. This required both parties to work together and calculate the total amount due based upon the court’s decision and submit same to the court. It is undisputed that respondents’ counsel attempted to negotiate the terms of a proposed settlement with petitioner. However, the negotiations were hampered by the numerous changes of counsel for petitioner. There were three separate law firms representing petitioner since the courts decision/order. It is undisputed that two of the law firms representing petitioner refused to negotiate the terms of the proposed settlement.Based upon the foregoing, petitioner’s order to show cause is denied as respondents have shown good cause for the delay in submitting a proposed order of settlement to the court.B. Proposed Order of SettlementSection 26-516(a) of the Rent Stabilization Law (“RSL”) provides that any owner who is found to have collected an overcharge “…shall be liable to the tenant for a penalty equal to three times the amount of the overcharge. If the owner establishes by a preponderance of the evidence that the overcharge was not wilful, the…DHCR…shall establish the penalty as the amount of the overcharge plus interest.” Section 26-516(a)(2)(i) of the RSL limits the imposition of treble damages to no more than two years before the filing of the complaint. Section 25-516(a)(4) of the RSL states that an owner who is found to have overcharged rent “may be assessed the reasonable costs and attorney’s fees of the proceeding and interest from the date of the overcharge at the rate of interest payable on a judgment pursuant to [CPLR] Section 5004.”In, Mohassel v. Fenwick, 5 NY3d 44 [2005], the Court of Appeals held:“These provisions are designed to discourage violations of the RSL and, where a violation occurs, to compensate the tenant, particularly when the violation is willful. Interest on a rent overcharge award is generally authorized from the date of the initial monthly overpayment, except when treble damages are warranted. In those circumstances, treble damages are imposed in lieu of interest from the date of the monthly overcharge to the date of the Rent Administrator’s decision…[emphasis added].”In 212 W. 22 Realty, LLC v. Fogarty, 1 Misc3d 905(A)[Civ Ct, NY County 2003], petitioner-landlord commenced the nonpayment proceeding against respondent-tenant who claimed rent overcharge. The court found that the rent overcharge of $10,828.34 was wilful and awarded treble damages of $32,485.02. The court then held that petitioner-landlord was “entitled to set-off of rent owed” subsequently from December 2002 through October 2003 in the sum of $13,294.60 and awarded respondent a money judgment in the amount of $19,190.42 [emphasis added].As set forth in the court’s August 8, 2017 decision/order, respondents were awarded a judgment in the amount collected in excess of the monthly legal collectible rent of $2,029.53 less rent paid, plus treble damages and interest pursuant to the Rent Stabilization Code. The history of payments and overpayments are set forth herein:1) From July 2014 through November 2014, respondents paid $2,962.64 per month or an overpayment of $933.11 per month for four months for a total overpayment of $4,665.55. Respondents are not awarded treble damages on this amount as the overpayment accrued in excess of two years prior to respondents’ overcharge claim was interposed, however statutory interest is to be awarded on said amount.2) From December 2014 through April 2016 (during the “two-year treble damages period”), respondents paid $2,962.64 or an overpayment of $933.11 per month for seventeen months for a total overpayment of $15,862.87. Respondents are to be awarded treble damages of $47,588.61 (or $15,862.87 x 3).3) From May 2016 through December 2016, respondents withheld rent at $2,029.34 per month for a total of $16,234.72.4) From January 2017 through March 2017, respondents paid rent $2,085.34 per month or an overpayment of $55.81 per month for three months for a total overpayment of $167.43. Respondents are to be awarded statutory interest on said amount.5) From April 2017 through November 2018, respondents withheld rent pending the outcome of this proceeding at $2,029.34 per month for twenty months for a total of $40,586.80.Based upon the above calculations, respondents’s overpayments (not including treble damages) total $4,823.98. The court awards respondents statutory interest on said amount which is $1,739.70 through November 2018. Overcharges plus interest total $6,572.68. The court also awards respondents treble damages of $47,588.61. Thus, overcharges with interest plus treble damages are $54,161.29 through November 2018.Respondents withheld $56,821.52 through November 2018. Since respondents are awarded $54,161.29 in overcharges, plus interest and treble damages, the remaining balance due to petitioner is $2,660.53. Accordingly, this court awards petitioner a final judgement in the amount of $2,660.53.CONCLUSIONBased upon the foregoing, petitioner’s order to show cause is denied. Respondents are awarded a total of $56,821.52 as a result of their rent overcharge claim. This includes interest and treble damages Respondents total award is offset from rent withheld through November 2018 which totals $54,161.29. Petitioner is awarded a final judgment in the amount of $2,660.53. A warrant of eviction shall issue forthwith, however execution of the warrant are stayed five days for paymentThis constitutes the order and decision of this court.Dated: New York, New YorkDecember 19, 2018
