Landlord appeals from so much of a final judgment of the Civil Court, New York County (Gerald Lebovits, J.), dated November 3, 2004, as awarded tenant an abatement of rent and a rent overcharge "credit" in a nonpayment summary proceeding.

Per Curiam:

Final judgment (Gerald Lebovits, J.), dated November 3, 2004, affirmed, with $25 costs.

The evidence, fairly interpreted, supports Civil Court's resolution of the rent and habitability issues litigated below. We find no cause to disturb the court's fact-laden determination that the rent on the base date (9 NYCRR 2520.6[f][1]) was the $900 preferential rent orally agreed to by the parties at the inception of the tenancy, a finding resting in large measure on considerations relating to the credibility of the witnesses (Claridge Gardens, Inc. v Menotti, 160 AD2d 544 [1990]). Furthermore, given the trial court's express factual findings that landlord deliberately failed to give tenant an initial written lease setting forth both the legal and the preferential rents, and that he filed "false registration statements" with DHCR, we agree that the preferential rent, subject to adjustments, remains in effect until the tenant vacates, inasmuch as there was no "previously established legal regulated rent" for the subject apartment (9 NYCRR 2521.2[b]; Melendez v New York State Division of Housing and Community Renewal, 304 AD2d 580 [2003]). Tenant's counterclaim seeking the return of rent payments previously tendered for a larger apartment in the same building was subject to a six-year limitations period and was not time-barred (see CPLR 213; Clarkson Arms, Inc. v Arabatiz, NYLJ July 3, 1991, at 23, col 6 [App Term, 1st Dept).

We have considered landlord's remaining arguments and find them unavailing.

This constitutes the decision and order of the Court.
Decision Date: June 5, 2006