Laurian Assoc., L.P. v Lassoff

[*1] Laurian Assoc., L.P. v Lassoff 2009 NY Slip Op 52492(U) [25 Misc 3d 1239(A)] Decided on August 24, 2009 Civil Court Of The City Of New York, New York County Marton, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2009
Civil Court of the City of New York, New York County

Laurian Assoc., L.P., Petitioner,

against

J. Michelle Lassoff, Respondent



57092/09



Petitioner's counsel

Allison M. Heilbraun, P.C.

1046 McLean Avenue

Yonkers, NY 10704

Respondent pro se

Gary F. Marton, J.

After considering the testimony and the other evidence at the trial of this nonpayment proceeding, the court makes the following findings of fact, reaches the following conclusions of law, dismisses the petition as satisfied through May 14, 2009, and grants respondent a judgment against petitioner, also known as Lourian Associates, L.P., for $9,930.00 on her counterclaim.

The court finds that the premises is a rent stabilized apartment, that petitioner is the landlord and respondent the tenant thereof pursuant to a two-year lease, that the lease began on May 15, 2008 at a rent of $1,600.00 per month, that rent has not been paid since December, 2008, that the premises is located in a multiple dwelling registered as such with the Department of Housing Preservation and Development of the City of New York ("HPD"), that the rent is registered with the Division of Housing and Community Renewal of the State of New York ("DHCR"), and that a rent demand, petition, and notice of petition were served.

Respondent asserted three defenses. One was that the proceeding should be dismissed because petitioner's name is not Laurian Assoc. L.P. or Laurian Associates, L.P., but instead is Lourian Associates, L.P. Petitioner did not contest the same. The court holds that this error is de minimis. CPLR 3026 provides that "[d]efects shall be ignored if a substantial right of a party is not prejudiced."(See also Oxford Towers Co., LLC v Leites, 41 AD3d 144 [1st Dept 2007]). The court [*2]holds that no substantial right of respondent's was prejudiced by this defect and the court dismisses this defense.

The second defense was breach of the warranty of habitability. Respondent testified about and offered photographs depicting conditions in both the premises and the building that might have rendered them unfit for human habitation. Respondent also demonstrated that she had complained to petitioner about many of these conditions, and she established as well that HPD had issued "B" violations[FN1] in January and March 2009 for locks on fence gates in the rear yard of the building. However, respondent did not offer any evidence that these conditions had had a detrimental impact on her use of the premises. Inasmuch as such evidence is essential to secure an abatement yet was lacking here (see, e.g., Park West Mgt. Corp. v Mitchell, 47 NY2d 316 [1979], cert. den., 444 US 992 [1979]; "[t]here must be detailed proof as to the nature and severity of the conditions complained of and the impact of the conditions upon tenant's use of the premises (see e.g., 5001 15th Ave. Co. v Klein, NYLJ, June 30, 2003 [App Term, 2d & 11th Jud. Dists.]; Eke v Ayanru, NYLJ, Mar. 20, 2002 (App Term, 2d & 11th Jud. Dists.]; Tenants Ass'n/Mutual Hous. Assn. HDFC v Price, NYLJ, Dec. 30, 1999 [1st Dept])," Liberti v Fitzpatrick, 2003 NY Slip Op 51643 [U] [App Term, 9th & 10th Jud. Dists]), the court holds that respondent did not establish this defense and it is dismissed.

The third defense, also set out as a counterclaim in the amended answer, was that there had been a rent overcharge from the inception of the tenancy on May 15, 2008. Respondent asserted that the prior tenant paid the maximum legal rent of $634.13 per month, that upon that tenant's departure petitioner was entitled to increase the rent only by 20% for the vacancy (i.e., $126.83 monthly) and by an additional 1/40th of the cost of renovations (i.e., $150.00 monthly for $6,000.00 of renovations conceded by respondent in her exhibit GG), and therefore that the maximum rent that petitioner might have charged was $910.96 per month instead of the $1,600.00 actually charged.

Petitioner countered that when the prior tenant vacated the premises, the maximum legal rent rose automatically by 7.25% from $634.13 per month to $680.10 per month pursuant to the Rent Guidelines Board ("RGB") increase for a two-year lease, and that on that base petitioner was entitled to a 20% vacancy increase (i.e., $136.02 per month) along with longevity increase of 6% (i.e., 0.6% [*3]for each of the 10 years since the prior vacancy, or a total of $40.80 per month), and another increase of $912.50 per month for $36,500.00 of renovations. Based on these calculations, petitioner contended that the maximum legal rent was $1,769.42, and that respondent's rent of $1,600.00 was not improper.

The court finds that the prior tenant's legal regulated rent was $634.13 per month[FN2]. The court finds that the prior tenant vacated the premises on or about June 30, 2007, and that she had been a tenant since August 1, 1997 pursuant to a lease[FN3]. The court holds that under 9 NYCRR § 2522.8 petitioner was entitled to both a longevity increase of .6% per year for the 10 years since the prior vacancy, i.e., a total of 6%, and an additional 20% vacancy increase, but that petitioner was not entitled to take the 7.25% increase because the Rent Stabilization Code [9 NYCRR] § 2522.8(a) provides that the 20% vacancy increase is in lieu of any RGB increases.

The premises was vacant from July 1, 2007 through May 14, 2008 and petitioner contended that during this period it had extensive renovations performed there. Petitioner urged that these cost $36,500.00 and that it was entitled to increase the monthly rent by 1/40th thereof. While this contention is a reasonably accurate statement of what the law allows (see Rent Stabilization Code [9 NYCRR] § 2522.4[a]), petitioner bore the burden of proving the same (see Jemrock Realty Co. LLC v Krugman, 2009 NY Slip Op 03956 [App Div, 1st Dept]; Matter of Rockaway One Co. LLC v Wiggins, 35 AD3d 36, 42-43 (2d Dep't, 2006); DHCR, Office of Rent Administration, Policy Statement 90-10).

Here the only documentary evidence was a proposal[FN4] dated November 1, 2007 from an entity named MFA Construction Inc. to perform for $36,500.00 during the period of November 8, 2007 through April 30, 2008 renovations consisting of, among other things, replacing in the kitchen and the bathroom cabinets, fixtures, appliances, and plumbing, and replacing flooring and walls and painting throughout. Petitioner did not offer a signed contract or other supporting documents to show that the proposal had been accepted. Petitioner acknowledged that it had not obtained building or other permits. Petitioner did not offer invoices or purchase orders either marked paid in full or showing the delivery of cabinets, appliances, or flooring, or anything else. Petitioner did not offer testimony from [*4]the purported contractor or subcontractors. Strikingly, with the possible exception of one check for $1,000.00 payable to Albert Home but without a stated purpose[FN5], petitioner did not offer any documentation to show that payments had been made, contemporaneously with the performance of the work or otherwise, to anyone either pursuant to the proposal or with respect to the alleged work at the premises.

Arthur Schwartz, whose duties as vice-president of petitioner's managing agent Norwax Associates, Inc. included overseeing accounts payable and receivable, testified that he arranged for progress payments to be made when he was told or received a phone call stating that work had been done. This testimony, even if credible in the face of the negative inference to be drawn because of the absence of either supporting documentation or an explanation for the absence of supporting documentation, is legally insufficient under Jemrock Realty, supra, and the approval with which it cites the documentation requirements set out in DHCR, Office of Rent Administration, Policy Statement 90-10, to establish petitioner's right to a rent increase for renovations. The court holds that, except as to the $6,000.00 in renovations conceded by respondent, petitioner did not prove its entitlement to an increase for the alleged renovations.

This proceeding encompassed the 12 months from May 15, 2008 through May 14, 2009[FN6]. Petitioner sought $1,600.00 for each of these months and collected $1,600.00 in the first six of these, i.e., a total of $9,600.00. Petitioner, the court holds, was entitled to collect a maximum legal rent of $949.00 per month, consisting of the prior tenant's rent of $634.13 per month plus a combined vacancy and longevity increase of 26% and another $150.00 per month for renovations conceded by respondent. The court finds, therefore, that there was a rent overcharge of $651.00 per month (i.e., $1,600.00 less $949.00) for the first six months of the tenancy, i.e., a total of $3,906.00.

The overcharge was presumptively willful, see Rent Stabilization Code [9 NYCRR] § 2526.1, Rent Stabilization Law [Admin Code of the City of New York] § 26-516. Petitioner did not offer anything to overcome this presumption. Accordingly, the overcharge must be trebled to $11,718.00 (see Graham Court Owners Corp. v Green, 11 Misc 3rd 131[A], 2006 NY Slip Op 50333 [U] [App Term, 1st Dept]). However, respondent should have paid rent of $949.00 for each [*5]month of the 12 month period, i.e., a total of $11,388.00. Since she paid a total of $9,600.00, she owes a balance of $1,788.00. Accordingly, the court dismisses the petition as satisfied through May 14, 2009 and grants respondent a judgment on her counterclaim against petitioner, also known as Lourian Associates, L.P., for $9,930.00 (i.e., $11,718.00 minus $1,788.00).

The court will mail copies of this decision and order to the parties.

DATED: August 24, 2009

New York, New York



GARY F. MARTON Footnotes

Footnote 1:Respondent's exhibit F.

Footnote 2:Petitioner's exhibit 3.

Footnote 3:Respondent's exhibit U.

Footnote 4:Offered by respondent into evidence and received as respondent's K.

Footnote 5:Respondent's exhibit L.

Footnote 6:The trial herein began on May 13, 2009 and the court amended the petition to include all rent due through May 14, 2009.