Recitation, as required by CPLR §2219 (a), of the papers considered in review of Respondent’s Motion.PAPERS NUMBEREDRespondent’s Motion; Memorandum of Law; Affirmation in Support; Affidavit; & Exhibits (“A” – “H”) 1, 2, 3, 4, 5Petitioner’s Affirmation in Opposition; Affidavit in Opposition; Exhibits (“A” – “H”) 6, 7, 8Respondent’s Memorandum of Law in Reply and Exhibits (“A” – “D”) 9DECISION/ORDER Upon the foregoing cited papers, the Decision and Order on Respondent’s Motion is as follows:BACKGROUNDApple Estates LLC (“Petitioner”) commenced the within summary proceeding against Jesus Estoban Vargas Santiago1 and Anais Pena (“Respondent Pena”) seeking a money judgment and possession of 347 East 173rd Street, Apartment 1B, Bronx, New York, 10457 (“the subject premises”) on the basis of nonpayment of rent. Respondent Pena now moves this court for summary judgment or, in the alternative, for leave to file an amended answer and leave to conduct discovery. For the reasons cited below, Respondent Pena’s motion for summary judgment is GRANTED and the remaining prongs of Respondent’s motion seeking leave to file an amended answer and for discovery are DENIED as moot.FACTUAL AND PROCEDURAL BACKGROUNDThe Petition in the instant nonpayment proceeding is dated November 20, 2018 and seeks rental arrears for the months of October 2018 and November 2018 at a monthly rate of $1,750 and a portion of Respondent’s rent for the month of September 2018 in the amount of $829. The rent arrears sought in the Petition total $4,329 (non-inclusive of the late fees that Petitioner claimed in the pleading). The Petition is predicated on an oral rent demand which sought rent at the rate previously stated. On December 7, 2018, Respondent Pena filed a pro se answer raising a single defense to the instant proceeding: a general denial.The Petition was first noticed to be heard by the court clerk on December 17, 2018. On the initial court date, Respondent Pena appeared in this proceeding by counsel from Mobilization for Justice, Inc. The respective parties to this proceeding stipulated to adjourn the matter to February 5, 2019 and to amend the petition to date. Each party preserved their claims and defenses. Thereafter, Respondent Pena filed the instant motion for summary judgment or, in the alternative, for leave to file an amended answer and for discovery. Respondent Pena argues that the proceeding is subject to dismissal based on Petitioner’s failure in complying with the statutory requirements of the Rent Stabilization Code §2528.4. Annexed to the Respondent’s moving papers is a certified copy of the rent registration for the subject premises (dated January 2, 2019). It shows that the Petitioner last filed a registration for the subject premises in 2016 with a legal regulated rent of $1,348.27, Petitioner stands in opposition to the motion and its counsel argues that there was a “processing error” with the 2017 and 2018 registration for the subject premises. This statement is unsupported by the annexed affidavit of Barry Weiss (Petitioner’s managing agent). While Petitioner annexes a current registration which appears to show that the subject premises is now registered for 2018 and 2019 with a legal regulated rent of $2,382.43 and a preferential rent of $1,750, no supporting documentation is annexed to indicate that Petitioner submitted timely registrations with DHCR for those years.DISCUSSIONI. Standard for Summary JudgmentSummary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law/tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; CPLR 3212 [b]). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Smalls v. AJI Indus., Inc., 10 NY3d 733, 735 [2008]). Once a prima facie showing has been made, however, “the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution” (Giuffrida v. Citibank Corp., 100 NY2d 72, 81 [2003]; see also Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; CPLR 3212 [b]).When deciding a summary judgment motion, the court’s role is solely to determine if any triable issues exist, not to determine the merits of any such issues (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (Negri v. Stop & Shop, Inc., 65 NY2d 625, 626 [1985]). If there is any doubt as to the existence of a triable issue, summary judgment should be denied (Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978]).II. The Consequences that Follow from an Untimely Rent Registration in a Nonpayment ProceedingRent Stabilization Code §2528.42 and Rent Stabilization Law §26-517(e)3 penalize a landlord who fails to timely comply with the annual registration requirements. Landlords are barred from collecting any rent in excess of the legal regulated rent in effect on the date of the last preceding registration statement. Once the landlord fulfills its obligation to file the registration statement, the penalty of the past remains, and the landlord can only begin to collect the lawful rental amount from that day forward (see 17 E. 101st St. Assoc. v. Huguenin, 161 Misc 2d 815 [Civ Ct, New York County 1994, Braun, J.]; see also Verveniotis v. Cacioppo, 164 Misc 2d 334, 338 [App Term, 2d Dept 1995]; Matter of Cardona v. New York State Div. of Hous. & Community Renewal, 214 AD2d 393, 394 [1st Dept 1995]; 101 West 70th Street Assoc v. Desoiza, NYLJ, Dec. 24, 1998, at 30, col 2 (App Term, 1st Dept]).Here, Respondent Pena has demonstrated that she is entitled to summary judgment. In the instant proceeding, the Petition sought and the predicate notice orally demanded rental arrears for the months of October 2018 and November 2018 at a rate of $1,750 per month: a rate substantially higher than the last registered legal regulated rent. As Petitioner sought and demanded rent it was barred from collecting, Petitioner’s rent demand was made in the absence of good faith and was rendered defective (Passarelli Family Partnership, L.P. v. Davis, 32 Misc.3d 1226 [A] [Civ Ct, Richmond County, Mundy, J]; see also Bldg Management Co., Inc. v. Benmen, 36 Misc 3d 1225 [A] [Civ Ct, New York County 2012, Kraus, J] [The purpose of a rent demand in the context of a summary nonpayment proceeding is to afford a tenant an opportunity to avoid litigation by paying the amount due]). The statement of Petitioner’s counsel that there was a “processing error” is conclusory and unsubstantiated by any documentary evidence. The statement of Petitioner’s was similarly unsupported by the affidavit of Petitioner’ managing agent. Accordingly, Petitioner was unable to establish the existence of material issues of fact that would require a trial. As the rent demand is not subject to cure and is fatal to the proceeding upon which it relies, the proceeding must be dismissed (Chinatown Apartments, Inc., v. Chu Cho Lam, 51 NY2d 786 [1980]).Respondent-Tenant Pena’s motion for leave to file an amended answer and leave to conduct discovery are denied as moot.CONCLUSIONAccordingly, it is hereby:ORDERED, that Respondent Pena’s motion is GRANTED to the extent of dismissing the instant proceeding without prejudice.This constitutes the Decision/Order of this Court.Dated: Bronx, New YorkMay 31, 2019
