This summary nonpayment proceeding was commenced by LEXINGTON NY REALTY, LLC (Petitioner) against RONALD ALEXANDER CLARKE, the tenant of record seeking to recover possession of 271 West 119th Street, Apt. # 2W, New York, NY 10026 (Subject Premises) based on the allegation that Mr. Clarke had failed to pay rent due for the Subject Premises. LENORA WILLIAMS CLARKE was added as a party herein on consent, is the wife of Mr. Clarke (Clarkes collectively "Respondents"), and resides with him in the Subject Premises.

Respondents appeared and filed an answer dated May 5, 2014. The answer asserts rent overcharge, breach of warranty of habitability , a general denial and collateral estoppel.The proceeding was initially returnable May 19, 2014.

The petition initially alleged that the Subject Premises was subject to Rent Stabilization.

On September 16, 2014, Petitioner moved to amend the petition to allege that the Subject Premises is exempt from Rent Stabilization based on "high rent vacancy." The motion was granted by the court (Gonzales, J) on December 4, 2014, pursuant to a decision and orderthat

On February 17, 2015, the proceeding was assigned to Part R for trial. The trial commenced and concluded on said date and the court reserved decision.

A prior nonpayment proceeding was brought by Petitioner against Respondents under Index Number 56939-2013. That proceeding was initially returnable on March 29, 2013. Petitioner was represented by the same attorney. The petition alleged the Subject Premises was subject to Rent Stabilization. Respondents filed an answer on March 21, 2013, asserting breach of warranty of habitability. The answer was deemed amended on March 29, 2013, pursuant to a so-ordered stipulation to include a defense of rent overcharge. On October 7, 2013, the proceeding was assigned to Part G for trial before Judge Wendt. The file indicates that the proceeding was discontinued by Petitioner without prejudice on said date.

Petitioner is the owner of the Subject Building pursuant to a deed dated November 13, 2000 (Ex 1). The building had been owned by the Sikander family since 1996, and the 2000 Deed transferred ownership from a prior Corporation which was owned by the same family.

Ronald Clark is the tenant of record for the Subject Premises, pursuant to an original lease dated February 14, 2011, for a one year period through February 28, 2011, at a monthly rent of $2150 (Ex C). This lease was renewed for a period through and including June 30, 2013, at the same rent (Ex 3). Although, the Petition sues for rent through February 2014, Petitioner failed to provide evidence of any written or oral agreement to pay rent beyond June 2013.

Petitioner also submitted two certified DHCR documents. One is dated June 17, 2014 (Ex 4) and lists the Subject Premises as permanently exempt as of November 8, 2004, based on High Rent Vacancy.

Petitioner also submitted a list of DHCR registrations for the Subject Premises from 1984 through 2013 (Ex 5). This document was generated June 2014 and showed a 1984 registration listing the apartment as Rent Control with the tenant of record being Ethel Williams and a legal registered rent of $103.63. No registrations were filed for 1985 through 1996. In 1997, the Subject Premises was registered as rent stabilized, with the tenant of record being Salimata Kaba at a monthly rent of $800. The same rent is registered for 1998, but the Subject Premises is listed as vacant. No registration was filed for 1999. In 2000, the registered rent is listed as [*2]$2189 with the increase based on an alleged MCI, no tenant of record is listed. In 2001, the registered rent is listed as $2300, again no tenant is listed and the basis for the increase is listed as an MCI. In 2002, the Subject Premises was registered as temporarily exempt with an actual rent being paid of $2000, a lease from October 2001 to Sept 30, 2002, no named tenant and asserting improvements as the basis of the increase and a preferential rent. In 2003, a "S Sharif" is listed as the tenant of record, the Subject Premises is registered as rent stabilized with a legal rent of $2300, $2000 as the actual rent paid and notes that reference an MCI, a second succession and improvements as the alleged basis for the increases.

In 2004, the Subject Premises are registered as permanently exempt, with a rent actually being paid of $1300 as a preferential rent on a vacancy lease. No tenant is listed but a term of lease from August 15, 2003 through August 14, 2005 is listed.

An additional DHCR document was entered by Respondents, which lists the apartment registration for the Subject Premises from 1984 through 2012 as of March 26, 2013 (Ex B). The registration information on this document is the same through 2004. However, on this exhibit in 2005 the tenant of record is Shannon Ross, the apartment is registered as Rent Stabilized, the legal rent is listed as $2300, and the preferential rent is listed as $1300. The apartment continues to be registered as rent stabilized through 2012, with tenants listed and amounts listed.

Mrs. Clark testified at the trial. She testified that she believed the registrations filed by Petitioner were fraudulent, that the Subject Premises was in bad shape when Respondents rented it and had certainly not been recently renovated.

DISCUSSION

9 NYCRR §2520.11(r)(4) provides that an apartment which became vacant after 1997, but before 2011, with a legal regulated rent of $2000 or more is exempt from Rent Stabilization. In this case there is an unexplained jump in registered rent from $800 in 1998 to $2189 in 2000. According to the registration the increase is based on an MCI. The registration also suggests that there were individual apartment improvements (IAIs) made to the Subject Premises between 2000 and 2004, the date Petitioner claims the Subject Premises became permanently exempt.

Petitioner presented absolutely no evidence on these issues at trial. Beyond cursory testimony that the registrations originally filed were filed in error, Petitioner offered no evidence or supporting documentation to justify the substantial increases alleged regarding the legal rent. No prior leases, MCI orders or evidence of any IAIs were offered by Petitioner.

Given the irregular DHCR registrations, and the fact that this is the second proceeding that Petitioner has brought knowing that the status of the Subject Premises was an issue, this lack of evidence is particularly glaring.

In 2014, the Rent Stabilization Code was amended and 9 NYCRR§2520.11(u) was added which provides that the owner of a housing accommodation exempt from Rent Stabilization pursuant to high rent vacancy must give a written notice to the first exempt tenant which contains the last regulated rent, the reason for the exemption, and a calculation of how the rental amount charge has been derived so as to reach the applicable amount qualifying for deregulation (see also DHCR Fact Sheet # 36). The form promulgated by DHCR requires detailed information be provided including any vacancy increase, what parts of the apartment were renovated, what new appliances were provided, and total expenditures by the landlord on any qualifying improvements.

While this provision is not retroactive, it could certainly serve as a guideline to practitioners as to the type of evidence to present to the court to establish the allegation of exemption based on High Rent Vacancy where the status of the Subject Premises is challenged.

Documentation supporting the calculation allegedly underling the exemption should be submitted to the court and might include MCI orders, contracts and payments for IAIs and vacancy leases. Petitioner's obligation to provide such evidence is reflected in cases where the status of the Subject Premises is litigated [see eg Becker v Park Murray Associates LLC 31 Misc 3d 1234(A) (court evaluated documentation submitted by landlord re increases to legal rent and IAIs) 150 W 82nd St Realty Assoc., LLC v Linde 36 Misc 3d 155(A)(material triable issues as to whether premises was exempt from stabilization included evaluation of expenditures for IAIs) 49 East 74th Street, LLC v Slater 42 Misc 3d 134(A)(where landlord alleged exemption based on high rent vacancy issues related to expenditures for IAI's required a trial) 206 West 104th Street, LLC v Cohen 41 Misc 3d 134(A)(landlord established exemption from regulation at trial by offering evidence regarding renovations).

Given Petitioner's failure to establish that the Subject Premises is exempt from Rent Stabilization, the proceeding is dismissed without prejudice.

This constitutes the decision and order of the Court.^[FN1]

Dated: New York, New York