775 Realty Co. LLC v Devore

[*1] 775 Realty Co. LLC v Devore 2008 NY Slip Op 52337(U) [21 Misc 3d 139(A)] Decided on November 21, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2008
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570195/07.

775 Realty Co. LLC, Petitioner-Landlord-Appellant,

against

Samuel Devore, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), dated April 11, 2006, which granted tenant's motion to dismiss the petition in a nonpayment summary proceeding.

Per Curiam.

Order (Gerald Lebovits, J.), dated April 11, 2006, affirmed, with $10 costs.

The pro se tenant retained his right under Rent Stabilization Code (9 NYCRR) § 2526.1(e) to offset the monthly rent until the substantial rent overcharge award previously issued by DHCR is fully credited, and this without regard to his having caused a purported judgment based on the DHCR order to be filed by the New York County Clerk. The purported judgment, which both sides agree was filed shortly after tenant began crediting the agency award against his monthly rent and which remains entirely unsatisfied, is a nullity, since a stabilized tenant is authorized to enter a DHCR overcharge order as a Supreme Court judgment only in circumstances, not here present, where "no such rent credit has been taken" (Code § 2526.1[e]; see Olton v Hunter, 3 Misc 3d 133[A], 2004 NY Slip Op 50437[U] [2004]; East 7th St. Dev. Corp. v Miller, 138 Misc 2d 345 [1988]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 21, 2008