After the service of a Non-payment Notice and Fourteen (14) Day Demand For Rent dated March 29, 2021 (NYSCEF Doc. No. 1 (Rent Demand), petitioner commenced this summary proceeding seeking outstanding rent from respondent Jacqueline Roman (Roman) for apartment 3R (Apartment) in the building located at 982 Manhattan Avenue, in Brooklyn [*2](Building). The Petition (NYSCEF Doc. No. 1) alleges that respondent owes rent for August, October, and November 2020, and January through June 2021 at $1941.16 per month.

On July 22, 2021, respondent interposed an answer alleging that the monthly rent is not the legal rent, rent overcharge, breach of the warranty of habitability, and harassment, and asserting related counterclaims. The answer includes as an attachment an order reducing rents for rent stabilized tenants issued on July 2, 2001 with an effective date of October 1, 2000, bearing docket number OI 210079 S (Rent Reduction Order). The order is addressed to Peter Kostakopoulos at 204 West 84th Street, New York, NY 10024, with a copy to Peter Kostakopoulos and Jordan Cooper Associates Inc. The Rent Reduction Order reduced the rent to "the level in effect prior to the most recent guidelines increase for the tenant's lease which commenced before the effective date of this order." The answer also included a DHCR rent history.

After several adjournments, the court transferred the case for trial. This court conducted a pretrial conference on September 29, 2022. Trial commenced on November 14, 2022, continued March 14, 2023 and May 24, 2023, with its ultimate appearance on October 27, 2023, at which time the parties scheduled the submission of post-trial memoranda, both of which the court received on November 2, 2023.

Respondent's post-trial memoranda includes as attachments documents that were never introduced into evidence at trial and contains factual assertions about which there was never testimony or cross-examination. As such, neither the documents nor the factual assertions are part of the trial record and will not be considered by this court. After consideration of the documentary and testimonial evidence adduced at trial, due deliberation having been had thereon, this court reaches the findings of fact and conclusions of law set forth below.

Stergios Kostakopoulos (Stergios) testified first, and offered into evidence documents necessary to petitioner's prima facie case. Those documents included the deed, the multiple dwelling registration filed with Department of Housing Preservation and Development (HPD), building-wide registration with the New York State Division of Housing and Community Renewal (DHCR), and a rent ledger. Stergios also offered multiple leases for the Apartment, including leases executed in 2003, 2005, and 2009, all with former tenants, as well as leases executed with Roman and Yawen Chen, a former tenant, in 2014 as well as 2020. The court did not take into evidence an unexecuted lease dated October 20, 2022, after commencement of this proceeding. Petitioner also offered into evidence the articles of organization of petitioner.

Stergios stated that Roman occupies the Apartment and asserted that the rent should be approximately $2000 per month, but said that Roman had not executed the most recent lease renewal. He said that the last executed lease was at a rent of $1941.16 and that the rent had not been increased beyond that. Petitioner offered a ledger which commenced in November 2018 and continued through October 6, 2022. While Roman disputed its accuracy, she acknowledged that the amounts were what petitioner was claiming, and the court admitted it into evidence. Stergios asserted that the balance due was $45,567. He noted that Yawen Chen had vacated approximately one year after he began managing the Building and believed her payments stopped in February of 2019. Petitioner offered the rent demand and affidavit of service and then concluded its direct examination.

The court sustained objections to several questions asked in cross-examination. Stergios acknowledged that he had no proof and only his testimony that petitioner offered, and respondent accepted a rent stabilized lease renewal. Roman asked where renewal leases taken [*3]into evidence showed that they were rent stabilized, which was followed by examination of the documents taken into evidence.

When asked why the DHCR apartment registration report was not timely filed, Stergios noted that the report is created by the DHCR rather than petitioner, and that petitioner does not control the date of their action.

Roman asked why between 2009 and 2010 the rent increased by $1000, and asked where documents in support of the increase were. Stergios noted that DHCR documents already admitted into evidence noted a vacancy and that the laws then applicable permitted a twenty percent increase. He also said the apartment had been renovated and referred to a lease executed in 2009 that referred to the renovation.

Stergios asserted that petitioner had obtained building permits and hired 365 Builders, but petitioner introduced neither permits nor invoices. Stergios asserted that the market conditions at the time of the renovation, in the building's area, were such that petitioner actually sought a smaller increase than was permissible based upon the work done.

When asked about the Rent Reduction Order, and why, in light of renovations that petitioner alleged, it remained open, Stergios stated that petitioner was completely unaware of its existence until respondent brought it to their attention. Stergios denied having seen it or knowing of its existence and asserted that it had been mailed to Jordan Cooper and Assocs., which had previously been the managing agent. He asserted that the window addressed in the Rent Reduction Order was immediately repaired, and that the apartment was renovated before respondent moved in.

When asked for evidence of the repair, Stergios repeated his testimony, adding that he was present when the Apartment was renovated. When asked why there was a new violation for the window, Stergios answered that it was because respondent had filed it.

Testimony resumed after adjournment with Stergios's redirect. Stergios testified that after he took over in 2019, respondent presented the Rent Reduction Order. He noted that the order was addressed to the Management Company, in Manhattan, Jordan Cooper and Assocs, Inc. Stergios stated that after he took over, Roman asked for repairs which he had done and for which she thanked him. She became hostile, he said, after she filed a case.

The court took into evidence a series of email messages between Stergios and respondent regarding delivery and installation of a refrigerator on May 1, 2019, as well as email messages exchanged in April 2019 regarding repairs needed and their scheduling. Stergios asserted that Roman was happy with the repairs, calling the work beautiful. He described the apartment as having been fully renovated in 2006, and listed the work as including painting, installation of trim, a new refrigerator and new kitchen cabinets.

Stergios noted that both a work order and the Rent Reduction Order offered into evidence mentioned a window latch and asserted that it was repaired the month it was reported. He further noted that the Rent Reduction Order had been issued 16 years before Roman's tenancy commenced. Stergios asserted that he remembered Ishmael Rodriguez, the former tenant, and said that work had not been major.

Stergios asserted that respondent repeatedly caused damage, posting signs on glass, and repeatedly throwing trash. Petitioner offered into evidence a series of email exchanges between respondent and customer service for petitioner's management company. The initial email directed prompt removal of a sign without damage within 48 hours to avoid charges for repairs and replacement parts, and of a hidden camera placed by Roman in a public area. Respondent's [*4]adversarial answer implored that she be charged, noted that while it was likely the sign would be removed, and that she was not intimidated. Roman questioned the safety of the Building, asserted overcharge, and closed the email with a profane directive to "[r]espectfully, suck my proverbial dick." Further emails in the exchange became incrementally more civil after a terse response indicated that someone other than Stergios received the email and managed the mailbox.

Respondent asserted that her security systems were all within her rights and appropriate under her insurance, that her rent was frozen, that more litigation was coming, and that it was discrimination to "target" her with rules that should be posted.

Stergios asserted that respondent had posted signs, handed out literature, called him a racist and a sexist, and asserted that she had started a human rights case. He described Roman as having slandered his name and asserted that access to the Apartment for workers to make repairs was a "throw of the dice."

Further emails offered by petitioner addressed issues of payment and public spaces, and a dispute about whether the superintendent had contacted respondent about access. The email messages also included respondent's statement that she would wait until a court ruled shortly thereafter on the scope of repairs before setting access.

Stergios noted that Roman's email messages to petitioner's customer service had been forwarded to him, that Roman yelled and cursed when she spoke to him and was extremely rude. He asserted that he had never had a cross word with Roman, and that she has followed him, filmed him, and photographed him.

The court took into evidence a photograph of a note posted in the Building that Stergios attributed to respondent, complaining of access given to non-tenants, asserting that there was a pending overcharge case, that there were HPD violations, and human rights complaints of racist and sexist behavior. The notice asserted the existence of a class action lawsuit and urged registration of complaints.

The court took into evidence a printout of a Twitter post from respondent including a photograph of Stergios and another person stating "[h]ere he is on the right laughing at me with the super like tenant harassment is a joke. 20 years of rent-stabilization fraud laughing like he didn't just get sued. Fuck-a-landlord. #cancelrent This is at the @carcosaclub in #greenpoint by the way, where he is a member."

Stergios asserted that the post documented harassment of him and attempts to harass and provoke him. He asserted that for him there was nothing personal, that it was just a job, and that respondent slandered and harassed him, affecting his reputation in the neighborhood. He asserted that the idea that he is a menace is false and hurtful.

Peter Kostakopoulos testified briefly, asserting that he is the owner of petitioner, and retired in 2019. Before retiring, his duties included caring for the Building. He testified that he did work in the Apartment, including repairs and remodeling, and said that when the tenant called, he had done work himself. He testified specifically that he had repaired a loose window latch.

Victor Hernandez testified that he was a maintenance man and did work at the Building. He stated that two months prior to his testimony, he fixed a hole at a window in the Apartment. He stated that he went to the Apartment twice and addressed other conditions but did not recall what they were. The witness acknowledged that he may have been confused as to specific work dates.

Roman then testified, addressing her counterclaims. She asserted that there had been an unlawful overcharge, and that the rent had been frozen at $490.05. She asserted that she had overpaid $47,500 and wanted treble damages.

Roman stated that the petitioner had used security footage and that she had called the police because of stolen packages and intimidation. She characterized the landlord as greedy and said she had seen people kicked out of the Building. None of her behavior, she said, occurred without a reason. Roman stated that the last rent had been $490.05 and that she expected a lease.

Roman asserted that she had calculated the claim of $47,500 in her overcharge case and acknowledged that she had paid no rent for approximately two years prior to her testimony. She asserted that if she had a lease, the rent would be approximately $490.05, and stated that her calculation included $490.05 as monthly rent due, and that the asserted overcharge was calculated for six-year period.

Roman acknowledged that she had made payment with checks that bounced, stating that she at times was pressed to make payments and that she tried even after discovering the overcharge. She could not recall the number of bounced checks and acknowledged last paying in December 2019 or Spring 2020.

When asked whether she had evidence supporting willfulness of a rent overcharge, Roman said she did, asking why she still got rent demands and threatening letters. She believed all claims made before the DHCR had been concluded but said HPD continued to have open violations.

Asked whether she was combative, Roman apologized if Stergios's feelings were hurt by her sharing of information. She described her behavior as standing up for herself and others and advocating for herself.

Roman said she asserted harassment because she felt that petitioner had discriminated against her, as Stergios made repairs for his friends in his boardgame club while she waited years for repairs, and hallways went unswept. Roman asserted that her phone number was blocked, and that she had had a tree break through her kitchen window. Roman asserted that although petitioner said she was not providing access, there was not one time that she outright refused access for repairs.

Roman reviewed the correspondence regarding access, and disputed the characterization that she refused access. She disputed that she was hostile to petitioner about access, or that she preferred court to dealing with petitioner. Asked about her posting to twitter, Roman said she felt intimidated and harassed, noting the picture was taken in a public street, that she had a right to take it, and that it was how she chose to document situation.

Roman testified that she did not have very much interaction with Stergios, asserting that he had blocked her number, and their email interaction had been through CCs. There were, she said, no personal exchanges. She did note that when police could not locate her footage of stolen packages, she emailed management and called police, but did not interact with Stergios.

Roman could not recall when she had taken the picture posted to Twitter but noted that there was a timestamp. She did not remember why, if she and Stergios were not interacting, she took the picture, and Roman denied cursing at Stergios. She specifically denied standing in front of his club and yelling at him.

On the next trial date, respondent's testimony continued with a discussion of the Twitter post, its content, and the motives for making it. The court concludes that respondent lacked credibility when she denied that the post referred to petitioner. The post and its content, [*5]however, are not relevant to substantive issues in this nonpayment proceeding.

Roman stated that Stergios was part of a club at the Building that had a separate entrance, but that he and a friend blocked the entrance to the Building in the photograph posted to Twitter. Roman testified that Stergios and his friends sat outside just to harass her. She described as harassment the landlord's awareness that she was being overcharged.

Roman further asserted that harassment occurred when the landlord failed to repair the back door for nine months, failed to repair a bedroom window for over seven months and left a tree leaning for over three months. Roman noted that in 2022 she had no lease, and noted that in April 2021 she had given petitioner four checks, each at $1960.

Roman said that her roommate was on the lease for the Apartment until 2018, and that she paid rent to the petitioner. She had, Roman said, paid half the rent, and after her departure respondent paid the full rent until April 2020.

Asked about any other asserted bases for harassment, Roman testified that she had received a letter from management expressing a preference that she not use a lockbox for payments. She asserted that the power dynamic of Stergios's presence at the Building, where his club was located, laughing with his friends, constituted harassment.

Roman asserted that she did not know whether she had posted a sign in the Building, noting her name did not appear on the sign. Asked whether the note was in her voice, Roman responded that the information in the sign was publicly available. The court does not find credible a denial that she posted the sign. The issue, however, is not material to this nonpayment proceeding.

Roman asserted that from 2015 to the date of her testimony, she had paid a total of $92,543.28, alleging specifically payment in 2015 of $11,249.88, in 2016 of $11, 249.88, in 2017 of $11,474.88, in 2018, of $11,522.68, in 2019 of $19,602.80, in 2020 of $23,523.36, and in 2021 of $3920, with no subsequent payment. Respondent offered no documentary evidence in support of the asserted payments, which the court notes are inconsistent with the ledger taken into evidence. The assertion also contradicts an earlier assertion that respondent's last payments were in Spring 2020, and an assertion after that that respondent had paid full rent until April 2020. Roman noted that she neither had a lease nor rent statements. Asked whether she had rent available to pay to petitioner, Roman said that she wanted, because of harassment and repairs, an abatement. Respondent asserted willingness to resolve the dispute at a rent of $490.05 per month. Respondent was unsure whether rent would accrue over time, noting that it was something to ask the court. The trial record closed.

Petitioner's witnesses testified credibly to establish petitiner's prima facie case, and respondent did not significantly contest the elements of petitioner's prima facie case. There is no dispute that the Apartment is subject to the Rent Stabilization Law and Code. The evidence introduced included leases, the multiple dwelling registration filed with HPD, and DHCR registrations. The last registered rent for the Apartment was $1941.16.

Respondent's answer included the Rent Reduction Order, which reduced the rent "to the level in effect prior to the most recent guidelines increase for the tenant's lease which commenced before the effective date of this order." The effective date of the order is October 1, 2000. The rent in effect on that date pursuant to the rent registrations taken into evidence was $490.05. The rent in effect prior to the guidelines increase raising the rent to $490.05 was $471.20.

While both parties asserted that the Rent Reduction Order reduced the rent to $490.05, [*6]both parties erred, as that was the rent in effect on the effective date of the order, and there would be no reduction in rent if the order were construed as holding the rent at $490.05. The order reduced the rent to the rent prior to the guidelines increase resulting in the rent in effect on the effective date of the order, which was $490.05. the rent prior to the increase resulting in a rent of $490.05 was $471.20, and that is, in fact the correct amount at which the order results in the rent having been set.

Respondent made significant efforts to assert that petitioner had engaged in a fraudulent scheme to deregulate the Apartment, seemingly mindful of the requirement that "review of rental history outside the four-year lookback period is permitted only in the limited category of cases where the tenant produced evidence of a fraudulent scheme to deregulate, and even then, solely to ascertain whether fraud occurred," (Matter of Regina Metro. Co., LLC v New York State Div. of Hous. and Community Renewal, 35 NY3d 332, 335 [2020]). That constraint, however, is without application here. A rent reduction order, though it was issued outside of the statute of limitations applicable to overcharge claims, if still in effect when the claim is filed, is part of the rent history and is properly considered (Cintron v Calogero, 15 NY3d 347, 351[2010]).

Since the issuance of the Rent Reduction Order, there has been no order restoring the rent. Stergios testified that petitioner was entirely unaware of the Rent Reduction Order, asserting that it had been mailed to the managing agent rather than to the owner. An overcharge is willful unless "the owner establishes by a preponderance of the evidence that the overcharge was not willful." (Rent Stabilization Law of 1969 [Administrative Code of the City of New York] § 26-516[a]). That petitioner denies knowledge of the Rent Reduction Order is unavailing. Petitioner selected its managing agent. To the extent there may have been any lack of communication between agent and principal, that failed communication constitutes an issue to be resolved between the petitioner and the managing agent but does not render overcharge anything other than willful. Petitioner cannot insulate itself by asserting, in essence, that its chosen agent failed to apprise it of the order. Consistent with that principal courts have held that in analogous factual scenarios, ignorance of a rent reduction order, where the order was easily obtainable from the DHCR, does not overcome the presumption (See, e.g., Ollie Assoc. LLC v Devis, 58 Misc 3d 640, 650-51 [Civ. Ct. Bronx County 2017]). Here, the order could easily have been obtained from the DHCR and petitioner is not insulated from liability for treble damages because it asserts that its managing agent, rather than petitioner itself, would have received information about the overcharge. Petitioner has not overcome the presumption of willfulness to avoid treble damages.

The Rent Reduction Order had the effect of setting the legal regulated rent at $471.20, and, given that there has been no order of restoration, that is where the rent remains. Rent collected in excess of that amount constitutes overcharge. Respondent, however, errs in the assertion that the applicable statute of limitations is six years, with all overcharge subject to treble damages. The Court of Appeals has held in Regina that the six-year statute of limitations only applies overcharges occurring on or after the effective date of the statute, which was June 14, 2019, and that those provisions of the HSTPA do not have retroactive effect. To avoid offending due process, overcharge claims are to be adjudicated "pursuant to the law in effect when the purported overcharges occurred" (Regina Metro., 35 NY3d at 349).

Here, respondent interposed an answer on July 22, 2021. The statute of limitations for overcharges effective on that day was a six-year statute (CPLR 213-a). Pursuant to Regina, that statute only applies to overcharges occurring on or after June 14, 2019. Its predecessor, which applies to overcharges occurring prior to June 14, 2019, provided that "[a]n action on a [*7]residential rent overcharge shall be commenced within four years of the first overcharge alleged (Former CPLR 213-a). Thus, for overcharges occurring prior to June 14, 2019, the statute of limitations runs back four years from the filing of the answer alleging overcharge, to July 22, 2017. Overcharges occurring after June 14, 2019 are plainly subject to treble damages. Overcharges occurring from July 22 2017 to June 14, 2019 are not subject to treble damages, but to interest calculated pursuant to CPLR 5004, which sets the applicable rate at 9% (Former Rent Stabilization Law of 1969 [Administrative Code of the City Of New York] § 26-516[A][2]).

The evidence adduced here, however, imposes a limitation on that recovery. The only documentary evidence of rent charged and paid that was introduced at trial was the ledge introduced by petitioner. That ledger commenced with charges posted on November 1, 2018. As such this court has no basis to upon which to calculate charges, payments or overcharge occurring between July 22, 2017 and October 31, 2018. For the period from November 1, 2018 through June 14, 2019, respondent would be entitled only to recover any overcharge with interest, as set forth in the table below.

After the June payment, there was no payment until after the effective date of the HSTPA, and all overcharges occurring thereafter became subject to treble damages. From July 2019 through March 2021, when respondent last made payment, the legal rent remained $471.20. In that 21-month period, petitioner was entitled to receive rents totaling $9895.20. Petitioner actually received $22,320 from July to December 2019, $18,700 in 2020 and $1941.16 in 2021, pursuant to the ledger taken into evidence, for a total of $42,961.16. The overcharge itself for that time period equals $33,065.96, and treble damages increase that amount to $99,197.88. The total overcharge and interest from November 2018 through June 14, 2019 is $15,822.12. On the overcharge counterclaim, respondent is therefore entitled to recovery of $115020.10, inclusive of interest and treble damages.

The petition in this matter seeks nine months of rent culminating in rent through June, 2021. Amending the petition through the date of trial results, per the breakdown provided, in the addition of rent for July 2021 through October 2022. For a total of 25 months' rent. [*8]Notwithstanding the allegations of the petition that the rent due through June 2021 was $1941.16 per month, and thereafter, $1960.28, the legal rent was in fact $471.20 per month. For the 25 months at issue, that totals $11780.

Respondent asserts both entitlement to a 100% abatement for months not subject to overcharge because there was no payment, and a claim of harassment. The evidence presented by respondent at trial, however, is patently insufficient to support a 100% abatement. An abatement of that nature has been found appropriate when an "apartment in its present condition cannot be safely inhabited" (Goldstone v Gracie Terrace Apartment Corp., 73 AD3d 506, 507 [1st Dept 2010]), a condition neither alleged nor established here.

Respondent failed to introduce at trial documentary evidence of conditions in the apartment, alluding to them in testimony. The court, taking judicial notice of the records of HPD (MDL § 328[3], finds three violations placed on April 8, 2021. Two of those violations are class A violations, and the third is a class C violation to "abate the infestation of mice in the entire apartment located at apartment 3r." An infestation of mice is defined as an "indoor allergen hazard" (NY Admin Code § 27-2017), the presence of which is "declared to constitute a condition dangerous to health" that an owner is obliged to "expeditiously remediate" (NY Admin Code § 27-2017.1). Here, the violation was placed in April 2021. For the 30-month period from May 2021 through the close of trial testimony in October 2023, the court finds that the existence of a hazardous violation for an infestation of mice warrants a rent abatement of 15% of the legal rent of $471.20, reducing petitioner's recovery by $70.68 to $400.52. per month. For the 30-month period affected, the abatement amount equals $2120.40, reducing petitioner's recovery to $9659.50.

In addition, respondent seeks judgment for harassment. The definition of harassment set forth in the Housing Maintenance Code provides that harassment includes "knowingly providing to any person lawfully entitled to occupancy of a dwelling unit false or misleading information relating to the occupancy of such unit" (NY Admin Code § 27-2004[48][a-1]). The owner has a duty not to harass tenants (NY Admin Code § 27-2005. Here, the court has already determined that there was a willful overcharge. The leases taken into evidence and provided to respondent contained false information as to the monthly rent for the apartment. The willful provision of false information to Roman as to the legal rent for the Apartment constitutes harassment. The harassment constitutes a Class C violation of the Housing Maintenance Code, and the court directs petitioner to cease all conduct constituting harassment under the code forthwith (New York Admin Code 27-2115[m]. In addition, the court finds that such harassment warrants damages in the sum of $5000 (New York Admin Code 27-2115[o]).

Petitioner is entitled to recovery of $9659.50. Respondent, on the counterclaim of overcharge, is entitled to recovery of $115,020.10 through the date of this decision. Respondent's claim of abatement has been addressed already in calculating the amount due petitioner. Respondent is entitled to recovery of $5000 on the counterclaim of harassment. Respondent's total recovery is $120,020.10. Petitioner's total recovery is $9659.50. Offsetting those sums leaves $110,360.60.

After trial, Respondent to a money judgment in the sum of $110,360.60 and may have execution thereon. This is the decision and order of the court.