Recitation, as required by CPLR §2219(a), of the papers considered in review of the instant motions.Papers NumberedNotice of Motion, Affirmation, Affidavit and Annexed (ex. A-H) 1Notice of Cross-Motion, Affirmation and Annexed (ex. A-G) 2Affirmation in Reply and in Opposition to Cross-Motion and Annexed (ex.1) 3Pro se Reply Statement in Further Support of Cross-Motion and Annexed 4DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on the motion and cross-motion is as follows:In this nonpayment proceeding, the petition alleges, inter alia, that the apartment at issue, which was formally subject to rent control, became exempt from rent control due to the prior tenant’s vacatur and was also exempt from the Rent Stabilization Law because the rent established in the first lease with Respondents was above the legal rent threshold for deregulation in effect at the time of lease execution.This Court, by Decision and Order dated October 12, 2018, found, inter alia, that the apartment was improperly exempted from rent stabilization coverage and, therefore, remained subject to rent regulation.Petitioner now moves for an Order, pursuant to CPLR §3025(b), seeking leave to amend the petition to include an allegation, in conformity with this Court’s finding, that the apartment is subject to the Rent Stabilization Law. Petitioner also seeks an Order, pursuant to RPAPL §745(2), directing Respondents to pay accrued and ongoing rent.Respondent Garret Daub (“Respondent”) opposes the motion and cross-moves for an Order, pursuant to CPLR §3211(a)(7), dismissing the petition for failure to state a cause of action, in that it does not state the proper regulatory status of the premises.Under RPAPL §741(4), where a tenancy is subject to a specific type of regulation, the petition must state the premises’ regulatory status, as it may determine the scope of the parties’ rights and defenses. Failure to do so renders the petition jurisdictionally defective and requires dismissal. MSG Pomp Corp v. Jane Doe, 185 A.D. 2d 798 (1st Dept. 1992).Given this Court’s finding that the subject apartment remains rent stabilized, the petition herein is fatally defective and is, therefore, unamendable. MSG Pomp Corp v. Jane Doe, supra. Accordingly, the petition is hereby dismissed, pursuant to RPAPL §741(4) and CPLR §3211(a)(7), for failure to state a cause of action.Even if amendment of the petition herein was permissible, Petitioner’s request for leave to amend the petition would still be denied, since the proposed amended answer is inadequate, in that it fails to allege, as required, that the premises are duly registered with the New York State Division of Homes & Community Renewal (“DHCR”) and that the rent demanded does not exceed the legally collectable rent as mandated by N.Y.C. Administrative Code §26-512(e) and §26-517. See also, Randall Assocs., LLC v. Davis, 20 Misc.3d 1116A (Civ. NY 2008). Failure to register the initial rent stabilized rent with DHCR and serve the tenant with the appropriate initial registration disclosures precludes Petitioner from seeking any rent above that which was presumably last registered. 430 Realty Co., LLC v. Heftler, 185 Misc.2d 450 (Civ. NY 2000); Smitten v. 56 MacDougal Street Co., 167 A.D.2d 205 (1st Dept. 1990); 11 Jones St. Assocs. v. Orbach, 168 Misc. 2d 511 (App. Term 1st Dept. 1996). Since this apartment was previously subject to rent control and the rent at that time was significantly lower than that charged to the Respondents, the higher rent now demanded is grossly greater than that permitted. As a result, the sought rent is uncollectable in this proceeding and the petition is dismissible for failure to state a good faith approximation of the rent due.In light of the foregoing, Petitioner’s motion is denied, in its entirety; and Respondent’s cross-motion is granted, in its entirety.This constitutes the Decision and Order of this Court.Dated: May 17, 2019New York, N.Y.
