100 Audubon Holdings LP v Hernandez

[*1] 100 Audubon Holdings LP v Hernandez 2010 NY Slip Op 51604(U) [28 Misc 3d 140(A)] Decided on September 17, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 17, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570787/09.

100 Audubon Holdings LP, Petitioner-Landlord-Appellant,

against

Ruben D. Hernandez, Respondent-Tenant-Respondent.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Pam Jackman-Brown, J.), entered on or about October 3, 2008, after a nonjury trial, which dismissed the petition without prejudice and awarded tenant a rent abatement in a nonpayment summary proceeding.

Per Curiam.

Final judgment (Pam Jackman-Brown, J.), entered on or about October 3, 2008, modified to reinstate the nonpayment petition, and matter remanded to Civil Court for further proceedings consistent herewith; as modified, affirmed, without costs.

The trial court erred in dismissing the nonpayment petition on the ground that the predicate rent demand did not contain a good faith estimate of the amount of rent arrears owed to landlord, since tenant did not seek dismissal of the petition on that basis. In any event, the rent demand here at issue adequately informed tenant of the particular periods for which rent payments were allegedly owed and of the approximate good faith amount of rent assertedly due for each such period (see 501 Seventh Ave. Assoc., LLC v 501 Seventh Ave. Bake Corp., 7 Misc 3d 137[A], 2005 NY Slip Op 50799[U] [2005]; see also 402 Nostrand Avenue Corp. v Smith, 19 Misc 3d 44 [2008]; Brusco v Miller, 167 Misc 2d 54 [1995]).

On the merits, with respect to the proper rent to which landlord was entitled, landlord sought arrears for the months of November 2006 through April 2008 (excluding May 2007). However, prior to the August 2008 trial of this matter, landlord last filed an annual rent registration statement with the Division of Housing and Community Renewal in 2006, asserting a legal regulated rent of $1,219.18 per month. Since landlord did not file another annual rent registration statement between 2006 and the time of trial, it was barred from collecting any rent in excess of the legal regulated rent listed in the 2006 annual rent registration statement (see Rent Stabilization Law [Administrative Code of City of NY] § 26-517[e]; see also Rent Stabilization Code [9 NYCRR] § 2528.4). As tenant did not rebut landlord's trial evidence that he failed to pay rent for the periods at issue, we reinstate the nonpayment petition and remand the matter to Civil Court for calculation of the rent arrears owed landlord less the abatements awarded by the [*2]court, and entry of a new judgment. We decline to disturb the trial court's resolution of the habitability and access issues, since the court's conclusions on those issues are amply supported by the trial record.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 17, 2010