This is a Nonpayment Proceeding under Section 711[2] of the New York State Real Property Actions and Proceedings Law that Petitioner NYSANDY12 CBP7 LLC commenced by Petition dated January 7, 2019 seeking rent arrears of $3056.86 from Respondent Perry Negron, the Rent Stabilized tenant in Apartment #1A at 4130 Carpenter Avenue, Bronx, New York. The Petition alleges arrears comprised of rent at a monthly rate of $967.90 for the months of December 2018 and January 2019, monthly “MCI” (major capital improvement) charges of $28.65 for the months of March 2017 through November 2018 and an “MCI TEMP” charge of $519.41. In his answer, Respondent pro se disputed the amount claimed due, raised a “general denial” and a defense of payment or partial payment. After settlement negotiations failed, first in the Resolution Part and then at pre-trial conferences in the Trial Part, the case proceeded to trial on September 9, 2019, at which Petitioner appeared by counsel and Respondent appeared pro se. TRIAL Petitioner’s Case At trial, Petitioner proved itscase through the testimony of its agent Lynnette Davis, who works for Petitioner’s management company “Simply Better Apartment Homes”, and documents admitted into evidence without objection. Petitioner is the owner and landlord of the premises pursuant to a deed dated December 22, 2015. The building is a registered multiple dwelling and Respondent’s apartment is Rent Stabilized and registered with the New York State Division of Housing and Community Renewal (DHCR). The DHCR registration history statement reflects that the apartment is and has been registered in Respondent’s name since 2011 and that the current legal regulated rent is $967.90. Respondent’s most recent fully executed renewal lease was dated April 5, 2016 and ran from August 1, 2016 through July 31, 2017 with a monthly rent of $939.25. That renewal lease states on its face that the rent “may be increased or decreased by order or annual updates of the [DHCR]“. Petitioner’s agent testified that the DHCR authorized a rent increase for MCIs after the date of Respondent’s last lease renewal. Certified copies of a DHCR “Order Granting MCI Rent Increase” and a “Modification Order for [MCI](s) Due to J-51 Tax Abatement” were admitted into evidence. The original MCI Order was issued on April 15, 2016, effective September 1, 2014, and authorized a permanent rent increase of $35.40 per month for Respondent’s 3-room apartment ($11.80 per room) collectible as of May 1, 2016; given the retroactive effective date of September 1, 2014, the Order authorized an additional temporary increase to cover the MCI increases due for the 20-month period from September 2014 through April 2016 ($35.40 x 20 = $708) to be charged in limited increments over time as permitted by the Rent Stabilization Code. The modification Order was issued on February 10, 2017, effective January 1, 2016, and provided a temporary monthly offset, due to a J-51 Tax Abatement, of $6.75 ($2.25 per room), thereby reducing the monthly MCI to $28.65 as of January 1, 2016. Petitioner’s computer-generated rent ledger runs from December 23, 2015 to the present and shows rent arrears due through September 2019 of $8921.56. For the period of January 2016 through April 2016 the only charges on the ledger are for rent at the monthly rate of $939.25. Beginning in May 2016 and continuing through January 2017 the ledger lists in addition to the rent of $939.25 the permanent MCI at the rate of $35.40 and the temporary MCI at the rate of $18.25. In February 2017 the ledger deducts $1358.90 from the balance due with the notation “Forwarding Balance severed per NYC Index B-17-003408″ and charges rent at the monthly rate of $974.65 (rent of $939.25 plus the permanent MCI of $35.40) plus a separate charge for the temporary MCI of $18.25. In March and April 2017, the ledger charges rent of $974.65 plus the temporary MCI charge of $18.25. For the months of May 2017 through January 2018 the ledger charges rent of $974.65 plus a separate temporary MCI charge of $53.65. In February 2018 the ledger charges rent of $974.65 plus a final temporary MCI charge of $6.15. In the months of March 2018 through August 2018 the ledger charges rent of $974.65 and no other charges. Credits of $202.50 and $6.75 were applied on July 20, 2018 and August 1, 2018, respectively, referencing “J-51 Docket #FN610018X”. For the months of September 2018 through September 2019 the ledger charges rent of $967.90 (rent of $939.25 plus the modified permanent MCI of $28.65) and no other charges. Throughout much of the period covered by the rent ledger up through January 2019 the “Payments” column reflects monthly payments of $939.25; no further payments were credited after January 2019. The Court took judicial notice at Petitioner’s request of the following documents in the court file: Rent Demand, Notice of Petition and Petition and the affidavits of service of those documents. Petitioner’s attorney requested that the Petition be amended to date and that Petitioner be awarded a judgment for $8921.56. Respondent’s Case Respondent pro se testified on his own behalf and stated that his position, based on information he obtained from a lawyer and his own research, is that because his last lease renewal expired on July 31, 2017 and Petitioner did not prove there to be a current lease, the proceeding should be dismissed. In response to the Court’s inquiry as to what rent if any he thinks he owes Respondent answered that he could not say, “because of the fluctuations.” Respondent presented no proof of any payments he made other than the ones recorded on Petitioner’s ledger. When the Court asked why he does not have a current renewal lease Respondent answered that he was not offered one. DISCUSSION Certainly, as a Rent Stabilized tenant, Respondent has the right to a timely offer of a renewal lease for a one- or two-year term that conforms to the requirements of the Rent Stabilization Law and Code. See Rent Stabilization Code §2522.5(b)(1). The Rent Stabilization Code further provides tenants with a remedy if a landlord fails to offer a proper and timely renewal lease: When the tenant does get such an offer it will commence, 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.” 9 NYCRR §2523.5(c)(1).1 However, where a landlord fails to offer such renewal lease the effect is not that the tenant has no rental obligation or that the landlord cannot commence an eviction proceeding for nonpayment of rent under RPAPL §711[2] in the event the tenant stops paying rent as Respondent herein did. Rather, under Rent Stabilization Code §2523.5(d), “the tenant shall continue to have the same rights as if the expiring lease were still in effect.” That is, the tenant retains all the protections of the Rent Stabilization Law and Code, the rent remains the same as it was under the expired lease and the only loss is to the landlord, who cannot charge an otherwise authorized rent increase. Directly on point is FAV 45 LLC v. McBain (42 Misc 3d 1231[A], 986 NYS2d 865 [Civ Ct NY Co 2014]), a nonpayment proceeding in which the Rent Stabilized respondent-tenant moved to dismiss so much of the petitioner-landlord’s case that sought a judgment for rent arrears accruing after the date her last lease expired. In denying the motion the court explained: “Respondent’s argument proves too much. If there is no contractual landlord/tenant relationship entitling a landlord to a cause of action for nonpayment of rent, it follows that a rent-stabilized tenant with an expired lease is subject to a holdover proceeding for no reason other than expiration of the lease. Such a result has no support in the Rent Stabilization Code,” and the case of Samson Mgt, LLC v. Hubert (92 AD3d 932, 939 NYS2d 138 [1st Dep't 2012]), does not “alter the proposition that a landlord/tenant relationship continues after the expiration of a rent-stabilized lease on a month-to-month basis at the same rent as the parties had previously agreed to so long as the tenant remains in possession.” FAV 45 LLC v. McBain, supra. Thus, while Respondent is correct that a key element of a petitioner’s prima facie case in a nonpayment proceeding under RPAPL §711[2] is proof of an agreement to pay rent, see, e.g., Haberman v. Singer (3 AD3d 188, 771 NYS2d 505 [1st Dep't 2004]); 71 W 68th St, LLC v. Roach (57 Misc 3d 144[A], 72 NYS3d 518 [App Term 1st Dep't 2017]); East Harlem Pilot Block Bldg IV HDFC Inc v. Diaz (46 Misc 3d 150[A], 9 NYS3d 592 [App Term 1st Dep't 2015]); Krantz & Phillips, LLP v. Sedaghati (2003 NY Misc LEXIS 58, 2003 NY Slip Op 50032[U][App Term 1st Dep't 2003]), such proof is present here where petitioner seeks to collect only the rent stated in the last fully executed Rent Stabilized renewal lease between the parties plus monies due under an MCI Order, as modified, that was issued after the date that renewal lease was prepared. As for the judgment amount, the Court has carefully examined the rent ledger and determined that Petitioner has charged rent at the amount stated in Respondent’s last executed lease throughout the time period at issue in this proceeding. The only additional charges Petitioner seeks are for the permanent and temporary MCI increases authorized by the DHCR’s Order of April 15, 2016, minus the $6.75 reduction retroactive to January 2016 due to the J-51 tax abatement as per the DHCR’s modification Order of February 10, 2017, credited on the ledger in July and August 2018. Respondent offered no proof of any payments other than those which already appear on Petitioner’s ledger and stated that he has been holding his rent payments since the case began and is able to pay whatever the Court decides he owes. CONCLUSION Accordingly, Petitioner is entitled to a final judgment of possession and a money judgment for $8921.56. The warrant of eviction shall issue forthwith; however, to provide Respondent an opportunity to pay the judgment and avoid eviction, execution of the warrant is stayed for ten days after Petitioner files with the Court proof of service on Respondent by first-class mail of a copy of this Decision and Order with Notice of Entry. This constitutes the Decision and Order of the Court, copies of which are being mailed to Petitioner’s attorney and Respondent pro se. Petitioner’s attorney may pick up the 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 October 10, 2019, they may be disposed of in accordance with Administrative Directives. Dated: September 10, 2019 Bronx, New York
