In its nonpayment petition, petitioner Assaf M LLC alleges, among other things, that respondent Daisy Ortiz's rent is $1,100.00 per month; that her apartment is subject to the Rent Stabilization Law ("RSL"); that the premises have been duly registered with the New York State Division of Housing and Community Renewal ("DHCR"); and that the rent demanded does not exceed the registered rent or the lawful Rent Stabilized Rent.

In her pro se answer, respondent asserts a general denial and also alleges that the "FEPS program" pays her rent.

Having secured counsel, respondent now moves for an order granting her leave to interpose an amended answer. Petitioner consents to the motion except with respect to respondent's proposed Second Affirmative Defense, which it asks the Court to strike.

Respondent's Second Affirmative Defense alleges that according to DHCR's records, the last rent registered before the inception of her tenancy was $900.00; that she moved into her apartment in November 2007 pursuant to a one-year lease, which set her rent at $1,316.00 per month;^[FN1] that under the RSL, petitioner may not charge rent in excess of the last registered rent; and that accordingly, petitioner is prohibited from collecting rent in excess of $900.00 per month. Respondent supports her defense with a certified copy of the DHCR rent registration records for her apartment, dated April 18, 2011. According to those records, the rent was last registered in 2005 at $900.00 per month.

In its opposition papers, petitioner alleges that after respondent filed her motion,^[FN2] petitioner "registered the correct rent with DHCR"; that when the parties were in court on June [*2]16, 2011, respondent's counsel presented an updated DHCR printout "showing that [r]espondent's rent had been properly filed"; and that the updated printout is in possession of respondent's counsel. Further, petitioner argues that pursuant to Section 26-517(e) of the RSL, now that it has registered the correct rent it may not be found to have collected an overcharge for any time preceding the filing of the late registration and may not be barred from collecting rent above the last registered rent of $900.00 per month.

Although petitioner failed to submit a copy of the corrected rent registration records, respondent has not submitted reply papers or otherwise denied petitioner's claim that her "rent [has] been properly filed."

Discussion

Owners of buildings with Rent Stabilized apartments are required to file with DHCR an annual statement containing the current rent for each such apartment and other information prescribed by that agency. RSL § 26-517(f); Rent Stabilization Code ("RSC") § 2528.3(a), 9 NYCRR § 2528.3(a).

The failure to file a proper and timely . . . annual rent registration

statement shall, until such time as such registration is filed, bar an

owner from applying for or collecting any rent in excess of the

legal regulated rent in effect on the date of the last preceding regi-

stration statement . . .

RSL § 26-517(e).^[FN3] However,

[t]he filing of a late registration shall result in the prospective

elimination of such sanctions and provided that increases in

the legal regulated rent were lawful except for the failure to

file a timely registration, the owner, upon the service and

filing of a late registration, shall not be found to have collected [*3]

an overcharge at any time prior to the filing of the late registration.

Id.

Thus, assuming, without deciding, that petitioner has now filed proper registrations, petitioner may collect, the legal regulated rent for respondent's apartment from the date of such filing. Assuming further that such rent was lawful except for petitioner's failure to file timely registrations, once petitioner serves respondent with the corrected registrations it may not be found to have collected an overcharge.

That being said, the Court refuses to strike respondent's proposed Second Affirmative Defense. Even assuming that petitioner has now filed proper registrations, it is barred from demanding or collecting rent in excess of "the legal regulated rent in effect on the date of the last preceding registration statement" (pursuant to Section 26-517(e) of the RSL) or "the base date rent, plus any lawful adjustments allowable prior to the failure to register" (pursuant to Section 2528.4(a) of the RSC) for any month prior to the date it filed such registrations.^[FN4] (See 101 West 70th Street Assoc. v. Desoiza, NYLJ, Dec. 24, 1998, at 30, col 2 [App Term, 1st Dept]; Goldman v. Porges, NYLJ, Mar. 28, 1995, at 25, col 1 [App Term, 1st Dept]; Verveniotis v. Cacioppo, 164 Misc 2d 334 [App Term, 2d Dept 1995]; South Second Realty v. Bracero, NYLJ, Mar. 29, 2000, at 30, col 6 [Civ Ct, Kings County]; Lombardo v. Santevecchi, 170 Misc 2d 744, 749 n 6 [Civ Ct, Kings County 1996]; 17 East 101st Street Assoc. v. Huguenin, 161 Misc 2d 815 [Civ Ct, NY County 1994]). Given petitioner's admission that it failed to file several years of annual registrations with DHCR until after respondent filed this motion, respondent's proposed Second Affirmative Defense is not "palpably insufficient as a matter of law," (Davis & Davis, P.C. v. Morson, 286 AD2d 584 [1st Dept 2001], and, consequently, may remain in her amended answer.Accordingly, the Court grants respondent's motion to the extent of granting her leave to interpose the amended answer annexed to her motion papers and deeming that amended answer to have been served and filed.

This case is restored to the Court's calendar on August 3, 2011 at 9:30 a.m. for all purposes, including trial.

This constitutes the decision and order of the Court.

Dated:Bronx, New York

July 19, 2011

________________________________________

Hon. Andrew Lehrer [*4]