BACKGROUND

This summary nonpayment proceeding was commenced by SANTINA GOODMAN (Petitioner) the rent-stabilized tenant of record of 628 West End Avenue - Apt. # 2

Petitioner issued a rent demand dated March 16, 2015 seeking $1,889.79 in arrears for December 2014 through March 2015 at a monthly rent of $567.49. The petition was issued later in March, and the proceeding was initially returnable in Part F on April 8, 2015.

Respondent filed an answer on April 1, 2015 asserting defenses and claims including rent overcharge, breach of warranty of habitability and harassment.

On May 13, 2015 it was assigned to Part R for trial. The trial took place and the court reserved decision. Both parties are pro se.

PRIOR RELATED PROCEEDING

There was a prior holdover proceeding between the parties under Index number 50690/14. Petitioner issued a notice of termination dated June 8, 2014, terminating the lease effective August 9, 2014. Petitioner then through counsel, issued a "notice to cure" dated [*2]January 15, 2015, asserting Respondent owed $754.81 in rent arrears under the lease and had ten days to pay otherwise Petitioner would commence legal action. Both said notices were annexed to the holdover petition dated February 5, 2015, which sought to proceed on the June 2014 Termination Notice.

The proceeding was initially returnable on February 13, 2015 in Part D. Petitioner was represented by counsel, and Respondent appeared pro se and filed an answer asserting rent overcharge, harassment and other issues. The proceeding was dismissed by the court (Saxe, J), sua sponte, on the initial return date pursuant to an order on the file which provided "(t)he petition is dismissed. This holdover' proceeding is actually a non-payment proceeding. R has a rent overcharge' claim against Petitioner."

This nonpayment proceeding followed.

FINDINGS OF FACT

Petitioner is the rent stabilized tenant of record for the Subject Premises. Petitioner most recently signed a renewal lease with her landlord for a term from October 1, 2014 through September 30, 2016 at a monthly rent of $907.27 (Ex 4). The legal registered rent prior to the term of the renewal was $882.99 per month (Ex 5).

Petitioner and Respondent signed a lease agreement on June 1, 2014 (Ex 1). The agreement provided that Respondent would be Petitioner's roommate and would lease a furnished portion of the Subject Premises for $1500 per month. The rent included all utilities such as electricity and cable. The lease provided that Pets would be allowed, and was for a one year term through June 1, 2015, but could be terminated by either party prior to that date on sixty days written notice.

Respondent paid Petitioner $3000 at the time the lease was executed for June Rent, plus one month's security (Ex 2).

The Subject Premises consists of two combined apartments. In the front is a living room/dining room area, which is the portion rented to Respondent. This area is about 288 square feet (Ex 5). Past that, is the bathroom and kitchen, which Respondent is also allowed to use per the lease, and then in the back is a bedroom and office. The living room has wood floors, a fireplace and three large windows which appear to look out onto the street (Ex 5).

Although the lease was signed on June 1, 2014, in less then a week things between the parties deteriorated and on June 8, 2014, Petitioner sent Respondent written notice electing to terminate the lease within 60 days on August 9, 2014.

Much of the initial trouble centered on the pet provision. Both parties agreed that Respondent advised Petitioner that she was involved in the rescue of pigeons and that she would be moving in with three pigeons. Petitioner stated she did not view these Pigeons as pets and that Respondent promised the pigeons would be relocated within one week. Petitioner credibly testified that Respondent asked for the pet provision because she is a dog walker and stated she might occasionally keep a client's dog overnight.

While Respondent initially moved in with three pigeons at one point she had as many as 12 pigeons in cages in the Subject Premises. The three Pigeons Respondent testified were diseased and could not therefor be released.

At the time of the trial, Respondent had completely turned the Subject Premises into an unsanitary place to live. Petitioner credibly testified that a noxious odor from the pigeons had permeated the Subject Premises. Additionally, Respondent maints her area of the premises in a a Collyers type condition, hoarding items, covering the large windows with stacked pigeon cages [*3]and the rest of the space with boxes, garbage bags and other items so that no floor space is visible. As a result the Subject Premises has also become infested with bugs. Pictures showing these conditions were admitted into evidence [Ex 6(a)-(f)]. The contrast I how the premises looked before Respondent's occupancy (Ex 5) and after Respondent's occupancy (Ex 6) is stark and dramatic.

Respondent paid July rent in the amount of $1500 on July 5, 2014. Respondent tendered a check for August rent, but then learned she was being overcharged and asked Petitioner to return the check which Petitioner did. Respondent has no paid any rent since July 2014 and remains in possession of the Subject Premises.

Both parties agreed that the notice of termination is void and that the lease between them remains in full force and effect.

DISCUSSION

Pursuant to § 2525.7 of the Rent Stabilization Code, Petitioner can not charge Respondent more than half of the legal regulated rent for the Subject Premises. While Petitioner believed she could charge more for providing a furnished rental, and other services and amenities, the law does not provide for same.

Thus there was an overcharge.

The court does not find that the overcharge was intentional and finds that the tenant's belief that he was entitled to charge more was not payably unreasonable and that treble damages are not appropriate ( Roxborough Apts. Corp v Becker 11 Misc 3d 99). Nor in any event is it clear that treble damages can be asserted by a roommate against the tenant (see eg Bryant v Carey 196 Misc 2d 412).

Respondent paid $3000 for June and July rent, and should have only paid $882.00 for this period. Thus the total overcharge collected through July 2014 was $2118.00.

There is additionally $441.00 due for the months of August and September 2014, and then $451 per month due from October 2014 through May 2015,which arrears total $4490.00. Crediting Respondent for the amount of the overcharge that leaves arrears due through May 2015 of $2372.00.

The court finds that Respondent failed to establish any claim of harassment or breach of warranty of habitability. Indeed, it is Petitioner who has been harassed by Respondent. Petitioner, a senior citizen on a fixed income, has been living through the nightmare Respondent has created by harboring pigeons and hoarding and has not been able to live peaceably in her home since Respondent took occupancy in June 2014. Respondent's claims for harassment and breach of warranty of habitability are dismissed with prejudice.

Based on the foregoing, Petitioner is awarded a final judgment in the amount of $2372.00. Issuance of the warrant is stayed for five days for Respondent to pay.

This constitutes the decision and order of the Court.

Dated: New York, New York

May 14, 2015

___________________

Sabrina B. Kraus, JHC