Petitioner moves by Notice of Motion pursuant to CPLR § 2221(d) to reargue the court's decision of November 7, 2003. The Motion is granted. That part of the court's decision which directed the tender of $7,279.51 representing statutory interest through October 4, 2002, the date the tender was received, is hereby deleted in its entirety. That part of the decision which directed issuance of a replacement check in the amount of $29,840.64 is deleted and withdrawn from the decision. In all other respects the November 7, 2003 decision remains in full force and effect.

In its decision of November 7, 2003, the court attempted to secure a replacement check which, if accomplished, would have prevented respondent from sustaining a loss of $29,840.64. With the assistance of petitioner's counsel the court attempted to fashion this alternative solution (a replacement check) for the respondent since the former owner had retired and now resides in Florida.

Due to respondent's prior obstinate, intractable conduct the court is constrained to grant petitioner the relief requested.

At trial respondent persisted in challenging petitioner's status as owner of the subject premises without offering proof to support his challenge. His insistence that the rent [*2]overcharge amount as properly determined by the DHCR must be satisfied or paid by the current owner is without merit or legal justification. The court cannot impose liability against the current owner where none exists.

The court advised respondent that the rent overcharge complaint was filed against the former owner Fanny Grunberg prior to the transfer of title. When the initial award was rendered by the DHCR Ms. Grunberg was named as the owner of the premises. Subsequently, she filed a PAR. On August 31, 2000 the DHCR issued a final order, denying the owner's PAR (Petition for Administrative Review), in which it had recomputed the overcharge claim. The Commissioner determined that the owner, Fanny Grunberg, was liable in the amount of $29,840.64 which constituted the rent overcharge, interest and treble damages. No additional interest would be added to the award unless the overcharge remained unpaid until the expiration of the period for seeking review of the Order and Opinion under Article 78. Upon the expiration of that period, the respondent (tenant) could elect to enter said Order and Opinion as a judgment to which the County Clerk may add interest at the rate payable on a judgment pursuant to CPLR § 5004 and Section 26-516(a)(4) of the Rent Stabilization Law from the date of the Rent Administrator's Order to the date of the Commissioner's Order. Alternatively, respondent (tenant) may deduct up to one-fifth of the damages from his monthly rent until he has recouped the entire amount (adding interest as would the County Clerk). Ms. Grunberg tendered the entire amount awarded ($29,840.64) to respondent (tenant) Yakov Seldin on October 2, 2000.

Reiterating what the court stated in its opinion of November 7, 2003 the respondent did not contest the fact that the prior owner had tendered the money in full satisfaction of its liability. Respondent admitted to receiving the check and not cashing it, and also admitted that he never returned the check to the prior owner. The money was tendered via Check No. 640 (Marine Midland Bank) dated October 2, 2000, by certified mail, return receipt requested, and was received by the respondent on or about October 4, 2000. By failing to tender the check for payment he acted at his own peril. It is clear and undisputed that from September 2000, the month respondent received the Commissioner's Order on the Petition for Administrative Review (PAR) directing the prior owner to tender $29,840.64 until October 2002 the respondent continued to pay the rent, despite having knowledge of the overcharge penalty and despite having received payment in full. Accordingly, for a period of twenty-six (26) months, respondent failed to reject or return the check, and continued to pay the legal regulated rent, which Petitioner accepted.

The respondent attempted to show the Court that despite the overcharge amount being satisfied, respondent had no obligation to accept the tender for a period of two (2) years following receipt, and that despite having received the full satisfaction, respondent now had the choice to reject the tender, or merely cease paying rent until the overcharge amount was satisfied. His position is legally untenable.

Contrary to respondent's earlier assertions, the DHCR found Fanny Grunberg responsible for the overcharge and imposed liability against her and not the current owners. Common sense dictates that respondent Seldin had an affirmative duty to repudiate the offer and return the check within a reasonable period of time or deposit the check for clearance. In the case [*3]at bar, respondent having failed to act within a reasonable time, his retention of the unconditional check in full compliance with the DHCR Order for over two (2) years constitutes an accord and satisfaction of that debt. (Roxborough Apt. Corp. v. Becker, NYLJ, March 4, 1998 p. 27, col. 2; Feliciano v. Evans, NYLJ, April 10, 1995 p. 33, col. 3).

As to the issue of interest which the court inadvertently awarded respondent, no interest shall accumulate once the money is tendered. In a case where a successful litigant fails to accept a valid tender, the accumulation of interest is halted. (Kay Lewis Enterprises v. Lewis Marshal Joint Venture, 1969, 59 Misc 2d 862). By his own admission at trial, respondent received the check in the full amount of $29,840.64 in October 2000. To date, three (3) years later, respondent admittedly remains in possession of said check.

Respondent further stated at trial that it is his choice alone whether to accept the Judgment amount or set off the Judgment amount against the rent owed. DHCR allows the tenant to take one of the following two steps to obtain the amount awarded: (1) Deduct from each of the future monthly rent payments an amount equal to twenty (20%) percent of the penalty until the total amount has been paid off; OR (2) Enter a Judgment after completing and signing a Tenant's Affidavit stating that "No payment of the penalty has been received by me in cash or as an offset against rent payments as directed in the Order..." A thorough review of the court file revealed that on June 25, 2002 such affidavit was filed. This is tantamount to filing an inaccurate statement under oath, due to the fact that respondent had received and acknowledged receipt of tender in full of the amount awarded. Once the check, a negotiable instrument, was tendered to respondent in full satisfaction of the overcharge penalty, he would not have any option whatsoever to offset the rents by the previously mentioned twenty (20%) percent.

It was evident at trial that respondent was not interested in acknowledging the satisfaction of the penalty but only intended to pursue a single course of action which would satisfy his obstinate desire to impose upon the current (new) landlord damages to the tune of $29,840.64 by offsetting twenty (20%) percent of the overcharge over the next three years. Respondent's posture is not consistent with the facts of this case nor supported by case law. The fact that respondent intentionally failed to deposit the Grunberg check constitutes a waiver.

Based upon the foregoing discussion the court grants petitioner's motion for reargument.

Petitioner is awarded a final judgment of possession in the amount of $12,846.65. Warrant to issue forthwith. Execution of warrant stayed twenty (20) days. Respondent is directed to cease deducting twenty (20) percent of the overcharge on a monthly basis. Respondent is directed to pay his current monthly rent on time and in full.

This constitutes the decision and order of the Court.

DATED: January 25, 2005

Brooklyn, New York

Anthony J. Fiorella, Jr., J.H.C.