This is a Nonpayment Proceeding which was commenced by Palmer Ave Estates LLC (Petitioner) seeking to recover possession of Apartment 412 at 3300 Palmer Avenue, Bronx, New York 10475 (the subject premises) based on the allegation that Zoleton Brown and Shara Rose (Respondents), who are the tenants in possession of the subject premises, have failed to pay past due rent. The Petition is dated January 7, 2019, alleges a current lease with a monthly rent of $1800 and seeks rent arrears of $3610, comprised of rent for December 2018 and January 2019 and a $10 balance due for November 1, 2018. The Petition also alleges that “said rent has been demanded personally”, that Respondents’ tenancy is subject to the Rent Stabilization Law of 1969 and that the apartment has “been duly registered with the New York State Division of Housing and Community Renewal (DHCR)”.Respondent Rose pro se filed an Answer to the Petition on January 16, 2019 raising a “general denial” and a defense of breach of the warranty of habitability (articulated on the court’s Answer form as “conditions in the apartment and/or the building/house which the Petitioner did not repair and/or services which the Petitioner did not provide”). Respondent Rose’s Answer also states, “Tenant states she is withholding payments until repairs are completed.”The initial court date was January 24, 2019 after which the case was adjourned four times prior to the trial which took place on June 19, 2019. As discussed in greater detail below, because Respondent raised a “general denial” in her Answer and Petitioner failed to establish all of the material elements of its Petition at trial, the proceeding is dismissed without prejudice. As to Respondents’ claim of breach of the warranty of habitability, because it was plead only as a defense and not as a counterclaim, despite having heard extensive testimony on this issue from both sides, the Court cannot rule on it at this juncture and it is dismissed, also without prejudice.It is fundamental that where an answer to a complaint or petition includes a “General Denial”, “the plaintiff was bound to establish every material fact therein alleged.” Farmers’ Loan & Trust Co v. Siefke (144 NY 354, 358, 39 NE 358, 359 [1895]). Dismissal is required when the defending party raises a general denial and the petitioner fails “to affirmatively establish the allegations in the petition”. MacLean v. 7 Ave Garden, LLC (44 Misc 3d 1208[A], 997 NYS2d 99 [Civ Ct NY Co 2014])(dismissing a proceeding brought under RPAPL Article 7-A).Through the testimony of its agent Ari Weissman and various documents which were admitted into evidence, Petitioner established the following facts which are material to this nonpayment proceeding:Petitioner’s interest in the premises, as required by New York State Real Property Actions and Procedures Law (RPAPL) §741(1) — which it did by producing a certified copy of its deed dated June 14, 2016 showing that it is the owner of the building;That the building, which has 135 apartments, is currently registered with the New York City Department of Housing Preservation and Development (HPD) as a multiple dwelling, as required by NYC Administrative Code §27-2097 and 22 NYCRR §208.42 — which, because the HPD registration form Petitioner offered into evidence was outdated, was accomplished by the Court taking judicial notice of the registration information on HPD’s website, pursuant to Multiple Dwelling Law §328(3);The existence of an agreement to pay rent, as required by RPAPL §711(2); and see, e.g., 71 W 68th St, LLC v. Roach (57 Misc 3d 144[A], 72 NYS3d 518 [App Term 1st Dep't 2017]) — which it did by having Mr. Weissman identify the signatures on a copy of Respondents’ current lease, dated March 12, 2018, for the one-year term of July 1, 2018 through June 30, 2019;A default in the payment of rent as required by RPAPL §711(2) — which it did through the testimony of Mr. Weissman and the admission into evidence of a rent ledger for the period of November 19, 2018, when there was an unidentified $10.00 balance due after crediting a payment of $1800, through June 1, 2019. The ledger reflects that no rent was paid in the months of December 2018 through June 2019 leaving a balance due to date of $12,610;The relief sought (a judgment for the unpaid rent of $12,610 to date) — which it did through the testimony of Mr. Weissman.While, as mentioned above, the Court took judicial notice of the current multiple dwelling registration on HPD’s internet website under Multiple Dwelling Law §328(3) to rectify Petitioner’s failure to prove the current registration requirement, the Court cannot do the same as to two other “material facts” of Petitioner’s case which were not proven:That a demand for the rent was made as required by RPAPL §711(2); andThat Petitioner is actually in compliance with the Rent Stabilization Law and Code’s requirement that the apartment be registered annually with the DHCR.As to the rent demand, paragraph 5 of the Petition asserts that “Said rent has been demanded personally.” A personal demand for rent was permissible under RPAPL §711(2) at the time this proceeding was commenced.1 See generally Zenila Realty Corp v. Masterandrea (123 Misc 2d 1, 472 NYS2d 980 [Civ Ct NY Co 1984]). However, Petitioner’s agent did not offer any testimony about how and when the demand for rent was made.As to proof that the apartment is currently registered with the DHCR as required by the Rent Stabilization Law and Code2, it is fundamental that a landlord bringing a nonpayment proceeding against a Rent Stabilized tenant must not only plead the rent regulatory status and compliance with the appropriate statutes and codes but also must “actually be in compliance for a court to order the requested relief.” Villas of Forest Hills Co v. Lumberger (128 AD2d 701, 702, 513 NYS2d 116, 118 [2nd Dep't 1987]); and see, e.g., Caceres v. Golden (1991 NY Misc LEXIS 856 [App Term 2nd Dep't 1991]); 554-558 W 181 St LLC v. Cochrane (61 Misc 3d 1203[A] [Civ Ct NY Co 2018]). Here, the only proof Petitioner presented that it is in compliance with the annual registration requirements of the Rent Stabilization Law and Code was a DHCR “Registration Rent Roll Report Effective April 1, 2017″, certified on January 4, 2018, reflecting a lease for the subject premises in the name of Respondent Zoleton Brown for the period of July 1, 2016 through June 30, 2017 at a “Legal Reg Rent” of $2912.85 and a Preferential Rent of $1590. This Report for the year 2017 does not prove Petitioner to “actually be in compliance” with the applicable statutes and codes which require that the subject premises be currently registered with the DHCR.CONCLUSIONAccordingly, the Petition is dismissed, without prejudice. This constitutes the Decision and Order of this Court, copies of which are being mailed to Petitioner’s attorneys and to Respondents forthwith. The parties may pick up their documents that were submitted into evidence as trial exhibits from the Part T Clerk (in either Room 409 or 410 at 851 Grand Concourse, Bronx, New York) within thirty days. If the exhibits are not picked up by July 25, 2019, they may be disposed of in accordance with Administrative Directives.Dated: June 25, 2019Bronx, New York
