Recitation as required by CPLR 2219(a), of the papers considered in the review of the petitioner’s motion to dismiss affirmative defenses and counterclaims, partial summary judgment and use and occupancy pendente lite.Papers/NumberedNotice of Motion, Affirmation & Affidavit 1Affirmation & Affidavit in Opposition 2Reply Affirmation & Affidavit 3 Upon the foregoing cited papers, the Decision/Order of this Court on this motion is as follows:This is a nonpayment proceeding. Respondent, Samuel Herrnson, (“Mr. Herrnson”) orally answered the petition on November 13, 2018 raising numerous defenses. Then, on November 19, 2018 he filed an amended answer. The amended answer raised defenses of improper service of the notice of petition and petition, failure to demand the rent, that petitioner owed him money due to a rent overcharge, repairs needed, illegal apartment, general denial, harassment, “no annual registrations (10 yrs), illegally deregulated,” and counterclaims for rent overcharge, warranty of habitability, failure to serve a fair market rent appeal and “fraudulently stated improvements.”PETITIONER’S MOTIONPetitioner moves pursuant to CPLR 3211 (b) to strike certain affirmative defenses and counterclaims in the amended answer relating to the overcharge and deregulation claims. It argues that those defenses and counterclaims should be dismissed as meritless. Additionally, petitioner moves pursuant to CPLR 3212 for partial summary judgment on those affirmative defenses and counterclaims. Specifically, it argues that the “rent overcharge,” “illegal deregulation,” and “no annual registrations” defenses and counterclaims warrant summary judgment as they are meritless.According to Sara Zucker, petitioner’s Vice President and General Counsel, the prior tenant of the subject premises, before Mr. Herrnson, was John Overend. Before Mr. Overend’s tenancy, the subject premises was rent control. The unit became decontrolled upon the vacancy of the rent controlled tenant, William Epstein. Mr. Overend entered into a two year lease for the subject premises on May 24, 2001 for a monthly rent of $3,000. (Zucker Aff’d s 13 & 14); Exhibit J. The prior owner and Mr. Overend agreed to a first rent of $3,000, based on other comparable units in the building and neighborhood. Since the $3,000 rent was in excess of the statutory rent threshold at the time, the premises was deregulated. The prior owner of the building sent by certified mail to Mr. Overend a copy of the RR-1 also known as the initial apartment registration form for the premises, form RA-42V (owner’s report for vacancy decontrol) and form RR-2 (initial registration summary). (Zucker Aff’d 17); (Exhibit K). By law, Mr. Overend had ninety (90) days to file a fair market rent appeal (“FMRA”) to challenge the rent set by the prior owner. However, Mr. Overend never picked up the certified mail documents nor did he file a FMRA. Accordingly, Ms. Zucker claims that the initial $3,000 rent is not subject to challenge.Subsequently, Mr. Overend vacated the premises on or about February 27, 2003. (Zucker Aff’d 21). Then, Mr. Herrnon took possession of the subject premises pursuant to a written lease dated February 27, 2003 at a monthly rent of $3,200. (Zucker Aff’d 24). At the time of Mr. Herrnon’s initial occupancy, the building was receiving a J-51 tax abatement and petitioner treated the unit as deregulated. Therefore, petitioner did not have to file annual registrations with DHCR or provide rent stabilized leases.However, after the Roberts v. Tishman Speyer Properties, LP, 13 NY3d 270 (2009)1, and 89 AD3d 444 (1st Dep’t 2011)2 decisions, petitioner and the prior owner had to comply with the holding in Roberts and re-register the premises with DHCR. Petitioner offered Mr. Herrnon a rent stabilized lease. After the expiration of Mr. Herrnon’s 2013 rent stabilized lease, three renewal leases were offered for years 2015, 2017 and 2019. (Zucker Aff’d s 28 & 29). These renewal leases were offered in accordance with the allowable Rent Guidelines Board Orders. (Exhibit N). Since 2013, the premises have been annually registered with DHCR. (Zucker Aff’d 31); Exhibit I — DHCR apartment registration.Further, petitioner argues that the rent overcharge claim is limited by the four year statute of limitations, unless a colorable claim of fraudulent deregulation can be presented by the tenant. According to petitioner, respondent asserted his rent overcharge claim in his amended answer on November 19, 2018 and that the base date for statute of limitations purposes is November 19, 2014. Based on the four year statute of limitations set in CPLR §213-a, petitioner argues that respondent can not look at the DHCR rent registration history beyond four years, from November 19, 2014, since the amended answer does not specifically allege fraud. According to petitioner, it deregulated the rent control unit in compliance with DHCR rules and regulations. After the rent controlled tenant vacated and pre-Roberts, the prior owner did not have to file annual registrations or provide rent stabilized leases. Then, post- Roberts, the owner complied with the decision and registered the unit with DHCR. It offered respondent a rent stabilized lease with renewals subject to Rent Guideline Board increases.Lastly, petitioner argues that respondent’s counterclaim based on failure to serve on him a fair market rent appeal (“FMRA”) is meritless and precluded by statute. Specifically, petitioner argues that respondent does not have standing to demand a FMRA. According to petitioner, the only person who had standing to demand a FMRA is John Overend, the first tenant after the rent control tenant.RESPONDENT’S OPPOSITIONRespondent, Mr. Hernnson, in opposition to the motion submits an affidavit stating that he moved into the subject premises on March 29, 2003. (Hernnson Aff’d 5). He was provided with a deregulated lease. He states that on May 10, 2018 DHCR awarded him a rent reduction effective September 1, 2017 which still remains in effect. (Hernnson Aff’d 8). He withheld rent prior to this non-payment due to repairs needed in his apartment. He refers to Department of Housing Preservation and Development (“DHPD”) violations issued for his unit and attaches a copy of the violations to the motion. (Exhibit F). Additionally, Mr. Hernnson states that Sarah Zucker contradicts herself in her affidavit in support of the motion because on June 6, 2017 she wrote him a letter responding to his inquiry regarding the rent increase in rent from the prior tenant. (Exhibit D). In the letter, Ms. Zucker states that the rent paid by him was the “…Apartment’s initial legal rent.”PETITIONER’S REPLYHowever, Ms. Zucker in a reply affidavit to the motion explains that when she wrote that letter to Mr. Hernnson in June 2017, she did not have the file for the prior tenant, Mr. Overend. She drafted the letter based on what she had available at the time. (Zucker Affid 9). She claims this is further supported by the documents sent to Mr. Hernnson from Richard Dansereau (managing director for petitioner’s management company). Those documents had already placed Mr. Hernnson on notice that Mr. Overend was the first tenant. (Exhibit H).DISCUSSIONMotion to dismiss affirmative defenses and counterclaimsIn a motion to dismiss an affirmative defense pursuant to CPLR 3211(b), a plaintiff or petitioner bears the heavy burden of showing that the defense is without merit as a matter of law. Granite State Ins. Co. v. Transatlantic Reinsurance Co., 132 AD3d 479, 481, (1st Dep’t 2015); 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 AD3d 541 (1st Dep’t 2011). The allegations set forth in the answer must be viewed in the light most favorable to the defendant or respondent. 182 Fifth Ave. v. Design Dev. Concepts, 300 AD2d 198, 199 (1st Dep’t 2002).”[T]he defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed.” 534 E. 11th St v. Hendrick, 90 AD3d at 542. Further, the court should not dismiss a defense where there remain questions of fact requiring a trial. Id.A FMRA is an adjustment of an initial stabilized rent of a formerly rent controlled apartment after vacancy decontrol. RSL §26-513 (b)(1). The Rent Stabilization Law provides that an owner is entitled to set the initial regulated rent at the rent agreed to by owner and first tenant in occupancy, after the vacancy of the rent controlled tenant. RSL §26-512(b)(2). Additionally, according to RSC §2521.1, units no longer subject to Rent Control which become vacate will have an initial legal regulated rent agreed to by the owner and the first tenant and reserved in a lease or provided for in a rental agreement subject to the provisions of this Code, and subject to a tenant’s right to a FMRA to adjust such rent. Under RSC §2522.3, the time within which such tenant may file a fair market rent appeal is limited. The first tenant has ninety (90) days after such notice was mailed to him/her by the owner via certified mail to file a FMRA with DHCR asserting that the rent exceeds the fair market rent. However, no fair market rent appeal may be filed after four years from the date the housing accommodation was no longer subject to the City Rent Law.Here, the subject premises was occupied by a rent control tenant, William Epstein, since at least 1984 until his vacatur on or about May 2001. (Exhibit I — DHCR apartment registration). Then, John Overend entered into a written lease dated May 24, 2001 for the subject premises. The lease term began on July 1, 2001 and ended June 30, 2003. The monthly rent was $3,000. (Exhibit J). Subsequently, petitioner in a letter dated July 23, 2001 mailed a notice to DHCR regarding the decontrol of the unit and enclosed a RR-1 (Initial Apartment Registration), form RA-42V (Owner’s Report of Vacancy Decontrol) and form RR-2 (Initial Registration Summary). (Exhibit K). The RA-42V indicates that William Epstein was the last tenant prior to the vacancy with a maximum monthly rent of $1,406.57 plus fuel charges. It also indicates that John Overend was the new tenant in occupancy effective July 1, 2001 with a $3,000 monthly rent pursuant to a written agreement. The motion also contains a copy of an envelope addressed to John Overend at the subject premises with a certified mail sticker post marked July 24, 2001. The envelope has markings showing unclaimed at the post office, after three attempts to notify on 7/27/01, 8/7/01, and 8/17/01. (Exhibit L).Based on the above, petitioner has shown that the affirmative defenses and counterclaims related to improper deregulation and FMRA are without merit as a matter of law. Granite State Ins. Co. v. Transatlantic Reinsurance Co., supra,; 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, supra. Petitioner has complied with RSL §26-512(b)(2) and RSC §2521.1. It decontrolled the subject premises in 2001, after the vacatur of the rent controlled tenant, William Epstein. Thereafter, John Overend was the first tenant who agreed to a $3,000 monthly rent. Petitioner submitted the required decontrol notices to DHCR. This is reflected in Exhibit I — DHCR apartment registration — that shows the owner filed the 2001 apartment registration on July 27, 2001. John Overend did not file a FMRA within 90 days after such notice was mailed to him by the owner via certified mail (Exhibit L) nor within four years from the July 2001 deregulation. Therefore, the $3,000 rent is the lawful first rent of the subject premises and respondent can not challenge the rent. Accordingly, petitioner’s motion to dismiss the affirmative defenses and counterclaims related to improper deregulation and FMRA is granted.Moreover, petitioner has also shown that the affirmative defense and counterclaim relating to rent overcharge is without merit as a matter of law. Granite State Ins. Co. v. Transatlantic Reinsurance Co., supra,; 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, supra. Respondent was initially charged in February 2003 a $3,200 monthly rent based on a deregulated unit. Then, after Roberts, the owner complied with the decision’s holding and starting in 2013 registered the premises with DHCR as rent stabilized. All rent increases from 2013 were based on Rent Guidelines Board increases. Hence, there is no viable rent overcharge affirmative defense or counterclaim. Accordingly, petitioner’s motion to dismiss the affirmative defense and counterclaim related to rent overcharge is granted.DISCUSSIONMotion for partial summary judgment on affirmative defenses and counterclaimsSummary judgment is appropriate where the movant establishes the claim by tender of evidentiary proof in admissible form sufficiently to warrant the court as a matter of law to direct judgment in its favor. Rodriguez v. City of New York, 31 NY3d 312, 317 (2018); Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 (1979). The failure to make such a prima facie showing requires denial of the motion regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” Alvarez v. Prospect Hospital, 68 NY2d at 324. In determining the motion, the Court must be mindful that summary judgment is a drastic remedy and should not be granted when there is any doubt as to the existence of a triable issue. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978). The evidence must be considered in the light most favorable to the party opposing the motion, Henderson v. City of NY, 178 AD2d 129, 130 (1st Dept 1991), and the motion must be denied where conflicting inferences may be drawn from the evidence. Nowacki v. Metropolitan Life Ins. Co., 242 AD2d 265, 266 (2nd Dept 1997).Petitioner in support of its motion for partial summary judgment submits an affidavit from Sara Zucker, its Vice President and General Counsel, factually detailing the rent history of the subject premises. These factual details have already been discussed in the motion to strike defenses and counterclaims. Moreover, petitioner submitted evidentiary proof in admissible form to warrant judgment in its favor. Rodriguez v. City of New York, supra.; Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., supra. These documents include certified copy of the deed for the subject building, certified copy of the HPD multiple dwelling registration for the subject building, certified copy of the DHCR apartment registration, John Overend’s lease from 2001, a RR-1 (Initial Apartment Registration), form RA-42V (Owner’s Report of Vacancy Decontrol) and form RR-2 (Initial Registration Summary) for the subject premises, copy of envelope mailed to John Overend, and respondent’s leases for the subject premises. (Exhibits F, H, I, J, K, L, M, N, O & P).However, respondent in opposition has failed to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action on the illegal deregulation, no annual registration defenses, rent overcharge and counterclaims for the reasons already discussed in the motion to strike defenses and counterclaims. Alvarez v. Prospect Hospital, supra. Based on the above analysis, petitioner’s motion for partial summary judgment is granted.USE AND OCCUPANCYPetitioner’s motion for payment of use and occupancy pendente lite is granted. Accordingly, respondent is to pay ongoing use and occupancy by the 10th of the month starting July 2019 without prejudice. Additionally, respondent to pay any outstanding use and occupancy through June 30, 2019 by June 30, 2019.ORDERED that petitioner’s motion to dismiss affirmative defenses and counterclaims related to improper deregulation, FMRA and rent overcharge is granted.ORDERED that petitioner’s motion for partial summary judgment on affirmative defenses and counterclaims related to improper deregulation, FMRA and rent overcharge is granted.ORDERED that petitioner’s motion for use and occupancy pendente lite is granted.This matter is adjourned to August 14, 2019, Part F, Room 830 at 2:15 p.m. for settlement or trial.This is the decision and order of the Court, copies of which are being emailed and mailed to those indicated below.Dated: June 13, 2019New York, NY.
