This decision has been referenced in a table in the New York Supplement.
Cozen O'Connor by Ally Hack, Esq., New York, for Petitioner.
The Law Offices of Mitchell P. Heaney, Cochecton, for Respondent.
SABRINA B. KRAUS, J.
This summary nonpayment proceeding was commenced by CHELSEA DYNASTY LLC (Petitioner) against MELI PENNINGTON and BRIAN BOTHWELL (collectively Respondents) seeking to recover possession of 222 West 23rd Street— Room 220/222, New York, N.Y. 10011 (Subject Premises) based on the allegation that Respondents have failed to pay rent due for the Subject Premises.
Petitioner issued a rent demand dated January 14, 201, seeking $88,500.00 in arrears for a period covering September 1, 2011 through January 2013. The amount demanded includes an unexplained opening balance of $7,500.00 on September 1, 2011, rent at $2500 per month through May 2012, and rent at $12,000 per month for a period from June 1, 2012 forward.
The petition is dated January 28, 2013. The petition asserts that Respondents are in possession pursuant to an oral agreement made between Respondents and Petitioner's predecessor in interest. The petition further asserts that the premises are exempt from rent regulation because they were a combined unit with a rent of over $2000 per month.
On February 14, 2013, Respondents through counsel filed a jury demand and a verified answer. The answer asserts that Respondents are Rent Stabilized tenants as they are permanent tenants of the hotel. The answer asserts that the Subject Premises has never been registered with DHCR, and that Respondents first paid $700 per month for rent in Apt 220 in 1994 and $1400 per month in rent for Apt. 22. The answer further asserts that these remain the legal rents for the units to date, but that in January 2000 the rents were illegally increased to $800 per month for Apt. 220 and $1600 per month in Apt 222, with a further illegal" increase in August 2004 to $900 per month for Apt. 220.
Respondents seek treble damages for the alleged overcharge. Respondent also assert breach of warranty of habitability and that there was never an oral agreement to pay $12000 per month for the Subject Premises.
The proceeding was initially returnable on February 22, 2013. On that date, the parties entered a stipulation adjourning the proceeding to April 12, 2013, to argue a motion. The stipulation set forth an agreement for service of papers on said motion.
Respondents agreed to pay " use and occupancy" to Petitioner at a rate of $1600 per month for Apt 222 and $900 per month for Apt 200, by the first of each month pending the litigation.
On April 12, 2013, Petitioner moved for an order dismissing Respondents' first, second, third and fourth affirmative defenses and Respondents' counterclaim. The motion also sought an order " compelling Respondents to pay petitioner use and occupancy pendent lite at the last rental rate ...