Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for summary judgment; cross-motion for summary judgment.Papers NumberedNotice of Motion and Affidavits Annexed 1-2Notice of Cross-Motion and Affidavits Annexed 13-15Answering AffidavitsReplying Affidavits 21, 23Exhibits 3-12, 16-20, 22, 24OtherDECISION/ORDER Upon the foregoing cited papers, the Decision/Order on these motions is as follows:The instant proceeding is based on respondent’s alleged failure to renew the lease. Respondent interposed a written answer in which he claims the offered renewal lease was not proper under the Rent Stabilization Code. The parties move and cross-move for summary judgment. The Court consolidates both motions for disposition.Landlord is the owner of the subject premises. The apartment is covered by Rent Stabilization. Respondent moved into the apartment in 2006. He signed a Renewal Lease dated May 22, 2007, which expired August 31, 2008. The legal rent was stated as $9,276.69 for a one year renewal and contained a preferential rent of $3500 per month. Petitioner failed to offer respondent a renewal lease upon expiration of the this lease.Approximately two years later, petitioner offered respondent a renewal lease dated April 1, 2010 with a commencement date of September 1, 2010. This renewal lease reflected a prior legal rent of $9,932.48 per month with a stated renewal rent of $10,296.03 per month. The lease contained a preferential rent of $3,300 per month. Respondent signed the renewal lease electing a two-year term expiring on August 31, 2012. After expiration of this lease, petitioner again failed to offer respondent a renewal lease. In 2018, petitioner offered respondent a renewal lease dated January 15, 2018. The renewal lease indicated a third party other than respondent at the signature line and throughout the riders. The lease indicated that the prior legal rent was $4,388.45 and a new rent of $4,443.31 for a one year period.By letter dated January 23, 2018, petitioner served respondent with a renewal offer consisting of five different versions of a renewal lease. In pertinent part, the letter stated “you may choose a lease commencing either May 1, 2018 or September 14, 2014. Obviously, if you choose a…lease commencing September 1, 2014 that lease will have already expired such that you will have to choose additional renewal leases until you reach a lease term which includes the current date.” The versions listed were 1) renewal commencing May 1, 2018, 2) renewal commencing September 1, 2014, 3) renewal commencing September 1, 2015, 4) renewal commencing September 1, 2016, and 5) renewal commencing September 1, 2017.Section 2523.5 of the RSC provides:(a) On a form prescribed or a facsimile of such form approved by the DHCR, dated by the owner, every owner…shall notify the tenant named in the expiring lease not more than 150 days and not less than 90 days prior to the end of the tenant’s lease term…of the expiration of the lease term, and offer to renew the lease or rental agreement at the legal regulated rent permitted for such renewal lease and otherwise on the same terms and conditions as the expiring lease.Section 2523.5(c)(1) provides that where a renewal lease offer is not made during the period between 150 days and 90 days prior to the end of the tenant’s lease term, the tenant is entitled to a one or two year lease commencing, at the tenant’s option, either[I] On the date a renewal lease would have commenced had a timely offer been made, or[ii] On the first rent payment date occurring no less than 90 days after the date that the owner does offer the lease to the tenant. In either event, the effective date of the increased rent under the renewal lease shall commence on the first rent payment date occurring no less than 90 days after such offer is made by the owner, and the guidelines rate applicable shall be no greater than the rate in effect on the commencement date of the lease for which a timely offer should have been made.The law as applied to the facts of this proceeding mandates a finding that the renewal offer was not proper.First, the law does not require respondent to sign back-dated leases. Here, four of the leases were backdated and, as the letter expressly demands, respondent was required to sign “additional renewal leases until you reach a lease term which includes the current date.” The renewals also appear to capture legal rent increases to which petitioner was not entitled due to its failure to offer timely renewals.Second, the lease commencing May 1, 2018, had the wrong signatories on the signature lines and riders. It also reflects a prior legal rent of $4,388.45 for a two year renewal which differs from the amount reflected in the last renewal lease between the parties.Third, in reviewing the DHCR registration for the building, the Court notes a bump in the legal regulated rent between years 2005 and 2006. In 2005, the legal rent was registered as $7,500 and in 2007 the legal rent was registered as $8878 for a total increase of $1,378. Petitioner’s managing agent admits the DHCR registrations reflected “erroneous rents initially charged (and later corrected)…” Santos Affidavit at paragraph 15. Thus, the DHCR filings are not reliable and open the door to possible fraud.Based on the foregoing, the Court finds that petitioner did not make a proper renewal offer in compliance with the RSC. Thus, the petition does not state a cause of action. Accordingly, the Court grants the motion for summary judgment dismissing the petition and denies the cross-motion.The Court shall mail courtesy copies of its decision/order to counsel.Dated: February 13, 2019Brooklyn, New York
