Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondents' CPLR §3212(b) motion seeking dismissal of the petition satisfied, granting summary judgment on respondent's counterclaims of overcharge, awarding respondent damages, awarding respondent reasonable attorney's fees, and any other relief as the court may find appropriate:

This non-payment proceeding was commenced in August 2022. The matter was first [*2]calendared on October 25, 2022. The matter was then adjourned a number of times before it was transferred to the trial part on March 22, 2023. The court held several pre-trial conferences before setting a briefing schedule for the instant motion. The parties, both represented by counsel, fully briefed the issue, and the court heard argument on December 5, 2023. Upon hearing argument, the court reserved decision.

Summary judgment is a drastic remedy that prevents the non-movant from their day in court (see CPLR §3212; Andre v. Pomeroy, 35 NY2d 361 [1974]). Any evidence must be presented in prima facie admissible form (see Winegrad v. New York Univ. Med. Ctr., 64 Misc NY2d 851 [1985]). As summary judgment is a drastic remedy, "the facts must be viewed in the light most favorable to the non-moving party." (Vega v. Restani Construction Corp., 18 NY3d 499, 503 [2012]). "To grant summary judgment it must clearly appear that no material and triable issue of fact is presented." (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; citing, Di Menna & Sons v. City of New York, 301 NY 118 [1950]). The court may overlook technical deficiencies in a motion for summary judgment in order to reach a disposition in the face of a lack of prejudice (Rosenblatt v. St. George Health and Racquetball Associates LLC, 119 AD3d 45 [App Div 2d Dep't, 2014]). Even when unopposed, the court may deny a motion for summary judgment, for failure to prove the lack of triable issues of fact (See Exit Empire Realty v. Zilelian, 137 AD3d 742 [App Div 2d Dept, 2014]). The moving party bears the prima facie burden of proof to obtain the relief sought (Matter of Stop & Shop Cos. Inc. v. Assessor of the City of New Rochelle, 32 Misc 3d 496 [Sup. Ct. Westchester Co, 2011]).

Respondent seeks summary judgment dismissing the petition as it has been satisfied. On March 14, 2023, the parties stipulated that the petition is amended to date for the sum of $16,856.05. Respondent attaches as Exhibit P showing HRA issued payments to petitioner in the sum of $17,008.11, satisfying the petition. Petitioner did not oppose this part of respondent's motion for summary seeking dismissal of the petition. As such, petition is dismissed.

Respondent seeks summary judgment on her overcharge claim on the basis that there are DHCR rent reduction orders in place for the subject premises from 1994 entitling her to damages for the six-year period under the HSTPA amendment to overcharge, rather than the pre-HSTPA four-year statute of limitations regarding overcharge. In essence respondent wants to pierce the Regina veil by arguing the base date for the overcharge is based on the passage of the HSTPA rather than on the interposition of respondent's answer (Regina Metropolitan Co. v. New York State Division of Housing and Community Renewal, 35 NY3d 332 [2020]). Petitioner opposes respondent's motion for summary argument arguing respondent's motion is procedurally defective as respondent failed to attach all pleadings as exhibits. Petitioner further argues that respondent is incorrect in her calculation of damages as she is applying the HSTPA amendment to overcharge, rather than the pre-HSTPA four-year statute of limitations regarding overcharge. Respondent states that the rental amount based on the DHCR rent reduction orders should be $335.05 based on the DHCR rent registration.^[FN1] However, petitioner disagrees arguing respondent [*3]is using the rental amount from 1988 rather than the rental amount from 1993 as ordered in the DHCR rent reduction orders. Respondent also argues willfulness of the overcharge on petitioner's part entitling her to treble damages. Petitioner argues they should be given the opportunity to overcome the presumption of willfulness, and that they purchased the property prior to the Cintron decision, which allowed courts to look at rent reduction orders in overcharge, even if it fell outside the four-year lookback period (Matter of Cintron v. Calogero, 15 NY3d 347 [2010]).

The court rejects Petitioner's argument that respondent's motion should be denied due to technical defects. As there is no prejudice to petitioner resulting from respondent's failure to attach the pleadings as exhibits to respondent's motion for summary judgment, the court will decide the instant motion on its merits. Further, CPLR §2001 allows the court to ignore technical non-prejudicial errors. The court chooses to exercise its discretion to do so here. The parties do not dispute there are DHCR rent reduction orders in place for the subject premises. Based on the DHCR rent reduction orders, "[t]he legal regulated rent is reduced to the level in effect prior to the most recent guidelines increase for the tenant's lease which commenced before the effective date of this rent reduction."^[FN2] The parties also do not dispute that petitioner has submitted applications to have the DHCR rent reduction orders lifted, which are still pending. The court finds that respondent has been overcharged based on the rent reduction orders in place for the subject premises. However, the parties disagree on a number as it relates to damages. Regina is clear in that the HSTPA overcharge amendment is not retroactive to claims of overcharge that arose prior to the passage of the HSTPA (see Regina, 35 NY3d at 388). The court must adhere to the Regina decision, and the lookback period for damages in this overcharge claim is four years, March 21, 2019, based on respondent's interposed amended answer (id.). There is an issue of fact as to the rental amount to be used for the overcharge claim. Furthermore, although willfulness may be presumed in overcharge, petitioner must be given an opportunity to overcome the presumption. As such, this matter must be set down for a hearing on damages.

For the reasons set forth above, respondent's motion for summary judgment is granted in part and denied in part. The petition is dismissed as having been satisfied through March 2023. Summary judgment is granted solely to the extent of finding petitioner liable for an overcharge. The base date for overcharge damages is set at March 21, 2019, based on the date of respondent's amended answer. The motion for summary judgment as to the amount remains a factual issue of trial because the parties dispute what the set rent was in 1993 and the willfulness on petitioner's part regarding the overcharge. This proceeding is adjourned to March 27, 2024 at 10:00am for in-person pre-trial conference and picking of a trial date on the issue of damages only. This constitutes the Decision and Order of the Court.