Argued-May 1, 2017
Collins, Dobkin & Miller, LLP, New York, NY (Timothy L.
Collins of counsel), for appellant.
F. Palomino, New York, NY (Jack Kuttner of counsel), for
respondent New York State Division of Housing and Community
Tennenbaum Berger & Shivers, LLP, Brooklyn, NY (David M.
Berger and Michael Cohen of counsel), for respondent Zelig
& Zelig, LLC.
C. DILLON, J.P. SYLVIA O. HINDS-RADIX HECTOR D. LASALLE
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
proceeding pursuant to CPLR article 78 to review a
determination of the Deputy Commissioner of the New York
State Division of Housing and Community Renewal Office of
Rent Administration, dated October 20, 2014, which denied a
request for administrative review and confirmed a Rent
Administrator's determination, inter alia, that the
initial legal registered rent for the subject apartment was
$1, 700 per month, the petitioner appeals from a judgment of
the Supreme Court, Kings County (Rothenberg, J.), dated
September 16, 2015, which denied the petition and dismissed
the proceeding on the merits.
that the judgment is affirmed, with one bill of costs.
issue here is the petitioner's legal rent for a
April 2007, the petitioner took possession of the subject
apartment, 1L, which was vacant, pursuant to a one-year lease
dated April 1, 2007, at a stated monthly rent of $2, 000. The
lease further provided that the landlord and the tenant
agreed to a reduction of $300 in the monthly rent, and that
the "total rent due each month is $1, 700.00."
According to the petition, the monthly rent of $2, 000 was
"illusory" and inserted into the lease by the
landlord because vacant apartments rented for $2, 000 per
month or more are not subject to rent stabilization (see New
York City Administrative Code § 26-504.2).
subject apartment had been registered with the New York State
Division of Housing and Community Renewal (hereinafter DHCR)
as exempt from rent regulation because it was occupied by the
owner or the owner's employee until at least April 1,
2002. The owner had registered the apartment as leased to
another tenant for $1, 480 per month from April 1, 2002,
until March 31, 2004.
December 2006, the building was purchased by a new owner and
re-conveyed to the current owner, Zelig & Zelig, LLC
(hereinafter Zelig). Zelig corrected the rent record to
reflect that the tenant originally registered as occupying
the subject apartment was actually a tenant of apartment 2L,
and that the subject apartment had been vacant for more than
four years when the petitioner moved in.
March 31, 2011, the petitioner filed a rent overcharge
complaint with the DHCR, claiming that the rent of $1, 700
was unlawful, asserting that her apartment was subject to
rent regulation, and alleging fraud. In an order dated
December 13, 2012, the Rent Administrator granted her
application to the extent of rejecting the landlord's
claim that $2, 000 was the legal rent and ruling that the
subject apartment was rent stabilized. However, the Rent
Administrator ruled that the petitioner was not overcharged,
and that the initial legal registered rent was $1, 700 per
month because the apartment was vacant on the "base
date" of March 31, 2007, four years prior to the filing
of the rent overcharge complaint (see 9 NYCRR 2520.6[f]),
and the rent agreed upon by the petitioner and the owner at
that time was $1, 700 per month, citing 9 NYCRR former
2526.1(a)(3)(iii). The Rent Administrator also rejected the
fraud allegation. That determination was affirmed on
petitioner commenced this proceeding pursuant to CPLR article
78 challenging that determination, alleging that the claim
that the apartment was vacant prior to her tenancy was false,
as part of a scheme to defraud. In the judgment appealed
from, the ...