This action arises from a tenancy in a rent-stabilized apartment. Plaintiff, 19 West 89th Street LLC, moves for summary judgment on its claims for ejectment; a judgment for [*2]possession; and a money judgment for $114,036.68.^[FN1] Defendant, Stephen Cornine, opposes the motion and cross-moves to amend his answer.

Plaintiff is the owner and landlord of the building located at 19 West 89th Street in Manhattan. Defendant moved into apartment 3F in January 1993. The last lease between plaintiff and defendant began on February 1, 2017, and ended on January 31, 2018. (NYSCEF No. 14 at 1 [pdf pagination].) In the interim, plaintiff sent defendant a non-renewal letter dated November 16, 2017. (NYSCEF No. 47.)

Defendant filed two complaints with the Department of Housing and Community Renewal ("DHCR")—one in December 2017, alleging rent overcharge, and one in January 2018, alleging that plaintiff reused to renew the lease agreement. Defendant stopped paying rent in February 2018.^[FN2] In February 2018, plaintiff offered defendant a rent-stabilized renewal lease. (NYSCEF No. 16.) Plaintiff offered a reduced rent rate of $1,689.72 through May 2018. The renewal lease itself was slated to begin in June 2018 and include a rent increase. (See id. at 4 [pdf pagination].) But defendant did not sign the renewal lease. Plaintiff also refunded defendant $25,227.31 by check for overcharges. Defendant deposited the check.

In August 2023, the DHCR issued a written order on defendant's rent-overcharge claim.^[FN3] (See NYSCEF No. 11.) The rent administrator determined that the legal regulated rent for the apartment, starting from February 2015, was $1,689.72 a month. (Id. at 5 [pdf pagination].) The administrator noted that defendant had paid no rent from February 1, 2018, to July 31, 2023. Those rent arrears totaled $111,521.52. (Id. at 1.) The administrator also concluded that the amount of arrears owed was more than the overcharge damages even when crediting the refund check plaintiff issued to defendant. (Id.) The administrator held that plaintiff owed no money to defendant. (Id.) The administrator's order provides that plaintiff may not "increase the rent until the first rent payment date occurring no less than 90 days after the date that a proper lease offer is made to the tenant." (Id. at 7 [pdf pagination].) The order further advises plaintiff "that outstanding rent arrears may be addressed in a court of competent jurisdiction." (Id.)

In October 2023, plaintiff served a 14-day rent demand on defendant. Defendant did not pay the sum demanded or surrender possession of the apartment. Plaintiff filed this action in November 2023.

Both parties also filed petitions for administrative review ("PAR") of the rent administrator's order. The PAR order affirmed the rent administrator's determination that the legal regulated rent was $1,689.72 a month and that defendant's rent arrears, through July 31, 2023, totaled $111,521.52. (NYSCEF No. 12.) The PAR order also affirmed the administrator's determination that defendant was a month-to-month tenant starting from February 1, 2018. The parties filed no further appeal or article 78 proceeding.

On this motion, plaintiff seeks summary judgment on its complaint, which includes claims for ejectment; a judgment for possession; and a money judgment for rent arrears from February 2018 through July 2023 (as laid out in the administrator's order), plus rent from August 2023 through June 2024, all totaling $114,036.68.^[FN4] The motion is granted.

Defendant cross-moves to amend his answer. Defendant filed his initial answer pro se. In that initial answer, defendant raised no affirmative defenses. Now that he has counsel, defendant seeks to file an amended answer with eight affirmative defenses and one counterclaim. The cross-motion is denied.

Plaintiff provides an affidavit from its managing agent (NYSCEF No. 13); the rent administrator's order; a rent ledger (NYSCEF No. 18); and the PAR order. Plaintiff has made out its prima facie case.

A. Whether the Rent Demand is Defective

1. Defendant argues that plaintiff's rent demand was defective. According to defendant, both the rent demand and the complaint name "19 West 89th Street LLC" as the owner although the deed names "19 West 89 Street, LLC," as the building's owner. (NYSCEF No. 59 at 10.) Defendant contends that neither entity is authorized to do business in New York or is registered with the Department of State (DOS). Defendant therefore argues that those entities lack capacity to maintain an action in New York. (Id.) Defendant asserts that the DOS records show that an entity named "19 West 89 Street, L.L.C." is registered. (Id.)

Under CPLR 2001, a mistake in form may be excused if it does not prejudice a party's substantial right. A slight discrepancy between the rent demand and the complaint is nonprejudicial. (See e.g. MacRobbie v Olivio, 200 AD2d 373, 373 [1st Dept 1994] [disregarding slight discrepancy between actual name and name used in the complaint under CPLR 2001].) [*3]And defendant provides no reason to believe that the three names refer to three separate entities.^[FN5]

2. Defendant claims that the 14-day rent demand (NYSCEF No. 2) does not have a proper signature, electronic or otherwise, from an authorized person. The signature in the rent demand is signed by "19 WEST 89th STREET LLC (OWNER AND LANDLORD)." But the rent demand states that it comes from plaintiff and is accompanied with a letter from plaintiff's managing agent, Rod Feldman. And defendant does not point to a provision in the lease requiring that a rent demand be signed by a specific individual. (Cf. Matter of Siegel v Kentucky Fried Chicken of Long Is., Inc., 67 NY2d 792, 793-794 [1986] [holding that notices of default and termination signed by an attorney not named in lease are ineffective when lease specifies that landlord must serve the notices].)

3. Defendant additionally argues that plaintiff sought a lump sum payment in the rent demand without stating when the arrears began to accrue or the "monthly rent amount being charged." (NYSCEF No. 59 at 11.) But the rent demand refers to (and attaches) the DHCR order, which contains the calculation of the overcharges against plaintiff and the arrears against the defendant. (See NYSCEF No. 2.) The rent demand also mentions the rent amount for an additional three months outside the period the DHCR calculated. (Id. at 1 [pdf pagination].)

B. Whether Defendant Owes Arrears

1. Defendant argues that plaintiff refused defendant's request for a lease renewal until February 2018 and that the February 2018 lease renewal was invalid. Defendant asserts that the lease renewal was untimely under 9 NYCRR 2523.5 (a) and defective due to lack of riders and requesting an erroneous security-deposit amount.^[FN6] (NYSCEF No. 59 at 13 [memo of law].)

This court concludes that plaintiff did offer defendant a rent-stabilized renewal lease. An owner's failure to offer a renewal lease timely does not render the lease invalid. 9 NYCRR 2523.5 (c) (1) provides only that the lease term will begin "at the tenant's option, either (i) on the date a renewal lease would have commenced had a timely offer been made, or (ii) on the first rent payment date occurring no less than 90 days after the date that the owner does offer the [*4]lease to the tenant."

This court also concludes that the lack of rider does not render the renewal invalid. (See FAV 45 LLC v McBain, 2014 Slip Op 50292[U], *6 [Civil Ct, NY County 2014] [holding that failure to provide Rent Stabilization rider does not render lease void].) Nor does plaintiff's request for an inappropriate security-deposit amount render the renewal invalid. Defendant could have signed the renewal lease and sought reimbursement for overcharges—like he already did before the DHCR.

2. Defendant also argues that plaintiff violated the rent administrator's order by failing to offer him a renewal lease. That order provides that plaintiff may not "increase the rent until the first rent payment date occurring no less than 90 days after the date that a proper lease offer is made to tenant." (NYSCEF No. 11 at 7 [pdf pagination].) Defendant contends that this provision indicates that the DHCR knew that the renewal lease was improper. (NYSCEF No. 59 at 15.) But the rent administrator did not opine on whether plaintiff's 2018 lease renewal was proper or not. Nor did plaintiff seek to raise the monthly rent above the legal regulated rent determined by the DHCR.

3. Defendant alternatively argues that because he never signed the renewal lease, he became a month-to-month tenant. The court takes judicial notice of the rent administrator's decision, which held that defendant was a month-to-month tenant from February 2018 through July 2023. (NYSCEF No. 11 at 6.) The PAR order affirmed the administrator's determination. The PAR order noted that "no evidence in the record . . . support[s] the deeming of the February 2018 renewal lease given that the tenant did not pay the rent in that lease." (NYSCEF No 12 at 3.^[FN7] ) However, those conclusions appear inconsistent with precedent supporting the rule that "expiration of a rent-stabilized lease does not create a month-to-month tenancy 'because the respective rights and responsibilities of a landlord and tenant under a month-to-month tenancy cannot be reconciled with the respective rights and responsibilities of a landlord and tenant of a rent-stabilized apartment.'" (Lichter Real Estate No. One, L.L.C. v Schrader, 85 Misc 3d 961, 964 [Sup Ct, NY County 2024], quoting Fairfield Beach 9th, LLC v Shepard-Neely, 74 Misc 3d 14, 15 [App Term, 2d Dept., 2d, 11th, & 13th Jud. Dists 2021].)

Whether defendant is a month-to-month tenant is of no matter in any event. It is undisputed that defendant occupied the premises from February 2018 through June 2024. Thus, defendant is entitled to use and occupancy for that period using the legal regulated rent from 2018—which the rent administrator determined to be $1,689.72 a month.^[FN8] (See City of New York [*5]v Pennsylvania R.R. Co., 37 NY2d 298, 300 [1975] [explaining that if a tenant "remains in possession on the expiration of a permit granting exclusive possession, it is a holdover and, pursuant to common law, there is implied a continuance of the tenancy on the same terms and subject to the same covenants as those contained in the original instrument"]; accord 1781 Riverside LLC v Hidalgo, 209 AD3d 418, 419 [1st Dept 2022] [holding that owner's failure to provide a renewal lease does not constitute waiver of its entitlement to rent from a rent-stabilized tenant].)

4. Defendant argues that plaintiff should be precluded from collecting rent arrears, because plaintiff violated the warranty of habitability. Defendant raises the warranty of habitability as his seventh proposed affirmative defense. (NYSCEF No. 56 at 8 [pdf pagination].) Defendant represents that his shower drain, stove, and refrigerator have been malfunctioning; that a gap between the kitchen cabinets and the kitchen wall needs repair; and that plaintiff has not corrected these problems.^[FN9]

Plaintiff argues that defendant's warranty-of-habitability claim fails because defendant has not specified when he notified plaintiff of those conditions. Plaintiff denies receiving any communications from defendant that repairs were needed for the drain, stove, refrigerator, or the gap. (See NYSCEF No. 70 at 3-4.)

The court agrees with plaintiff. Defendant representations are insufficient to raise an issue of fact about whether plaintiff breached the warranty of habitability. Defendant's representations that he notified plaintiff of the alleged uninhabitable conditions are unparticularized. Defendant does not detail when he notified plaintiff of the alleged conditions in his apartment. (See 330 E. 46th St. Assoc. LLC v Greer, 2004 Slip Op 51451[U], *1 [App Term, 1st Dept 2004] ["The vague and unparticularized testimony offered by defendant-tenant as to the nature of the apartment conditions and the circumstances and chronology of the verbal notice of those conditions allegedly given to unspecified building representatives was insufficient to meet the tenant's burden on the issue, or so the trial court reasonably could find."].) And plaintiff submits emails showing that, at other times, defendant notified plaintiff by email about different needed repairs. (NYSCEF Nos. 71, 72.)

The branch of plaintiff's motion for summary judgment for $114,036.68 in use and occupancy is granted. To the extent plaintiff seeks additional use and occupancy incurred after the date of this motion, it may file a supplemental judgment.

C. Ejectment

Plaintiff seeks to eject defendant from the premises due to his failure to pay rent. Defendant argues that he was not afforded proper notice of plaintiff's intent to eject him under the Rent Stabilization Law or the Real Property Law. According to defendant, plaintiff wants to eject defendant because defendant refused to renew the lease.^[FN10]

Under 9 NYCRR 2524.2 (a), "[e]xcept where the ground for removal or eviction of a tenant is nonpayment of rent, no tenant shall be removed or evicted from a housing accommodation . . . unless and until the owner shall have given written notice to such tenant as hereinafter provided." Under 9 NYCRR 2524.3 (f), notice is required to recover possession of the premises from a tenant who has refused to renew his expiring lease. RPL § 226-c provides that a landlord that intends not to renew the tenancy of a tenant who has occupied the apartment for more than two years must provide at least 90 days' notice to the tenant.

Here, plaintiff wants to repossess the premises due to defendant's nonpayment of rent, not for defendant's failure to sign the lease renewal. (See NYSCEF No. 1 at ¶ 32 [complaint] [first causes of action seeking arrears and possession based on the rent demand and defendant's refusal to vacate the premises].) Plaintiff's arguments for possession refer to the expired lease, rent ledger, and rent demand. (NYSCEF No. 7 at 6 [memorandum of law].) Defendant was therefore not entitled to notice before plaintiff brought an action for possession.

The branch of plaintiff's motion for summary judgment on its claim for ejectment is granted.

Plaintiff cross-moves to amend his answer, which he initially filed pro se. Defendant's initial answer contained no affirmative defenses or counterclaims. (See NYSCEF No. 4.) Defendant, now represented by counsel, asks to add eight affirmative defenses and one counterclaim.

When moving for leave to amend an answer, a defendant "need not establish the merit of the proposed new allegations but must simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit." (Miller v Cohen, 93 AD3d 424, 425 [1st Dept 2012] [internal quotation marks omitted].)

The court concludes that defendant's affirmative defenses and counterclaim are unmeritorious; they raise no issue of fact precluding summary judgment in plaintiff's favor. Defendant's cross-motion is denied.

Defendant's second (failure to state a claim); fifth (defective rent demand); and seventh (breach of warranty of habitability) affirmative defenses are unmeritorious, given the court's conclusions on plaintiff's summary-judgment motion. Defendant's counterclaim for a declaration that plaintiff must deliver a rent-stabilized lease renewal offer to defendant (NYSCEF No. 56 at 10 [pdf pagination]) is also unmeritorious for the same reasons.

On his first proposed affirmative defense, defendant contends that plaintiff is barred under the clean-hands doctrine from securing equitable relief. According to defendant, plaintiff "deliberately failed to give Cornine a rent stabilized lease renewal in order to create a pretext for this action and has subsequently not offered a renewal lease even after being ordered by DHCR" so it could potentially offer a new lease to a tenant at a deregulated rate. (NYSCEF No. 56 at ¶ 39.) But the record does not indicate that plaintiff had such ill-intent.^[FN11] And the rent administrator's order did not require plaintiff to provide defendant with an additional renewal lease. The record does not establish that plaintiff "was manipulating the [defendant] with the [defendant's] ultimate inability to satisfy a judgment and consequent eviction in mind." (Haberman v Singer, 3 AD3d 188, 192 [1st Dept 2004].)

On his third proposed affirmative defense, defendant argues that plaintiff's claims are barred by laches, waiver, acquiescence, ratification, or estoppel. Defendant argues that plaintiff unduly delayed in issuing the rent demand and in bringing this ejectment action. According to defendant, plaintiff's delay caused rent to accumulate. (NYSCEF No. 77 at 9.) Defendant also asserts that plaintiff's acceptance of rent payment from defendant starting in April 2024 created a month-to-month tenancy entitling defendant to additional statutory protections. (Id.) But it was no secret to defendant that plaintiff would accrue a claim for rent arrears. Indeed, soon after the rent administrator issued his decision, plaintiff served the rent demand. And plaintiff's acceptance of rent starting in April 2024 did not extinguish plaintiff's claim to rent accrued before then.

On his fourth proposed affirmative defense, defendant alleges that plaintiff failed to mitigate damages by "failing to give Cornine a valid lease renewal pursuant to applicable law" and "refus[ing] to negotiate a payment plan with Cornine for the claimed arrears." (NYSCEF No. 56 at ¶ 40.) The court concludes, however, that offering a rent renewal would not have mitigated defendant's damages and that plaintiff had no obligation to offer defendant a payment plan. (See NYSCEF No. 64 at 17-18.)

On his sixth affirmative defense, defendant argues that this action belongs in Housing [*6]Court. But Housing Court has no jurisdiction to adjudicate a nonpayment matter when, as here, there is no "rental agreement in effect" under which defendant could have defaulted. (Fairfield Beach 9th, LLC v Shepard-Neely, 2022 NY Slip Op 51351[U], *4 [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2022].) And Supreme Court is authorized to decide ejectment actions. (See Alleyne v Townsley, 110 AD2d 674, 675 [2d Dept 1985] ["Although resort to a summary proceeding to regain possession of real property has become the rule rather than the exception, the common-law action for ejectment still survives in New York and is more properly referred to as an action to recover possession of real property."] [internal citations omitted].)

On his eighth proposed affirmative defense, defendant argues that public policy bars plaintiff's claims. Defendant does not identify which public policy is violated by plaintiff's claims.

Defendant's motion to amend his answer is denied.

Accordingly, it is

ORDERED that the branch of plaintiff's motion for summary judgment for a monetary judgment against defendant of $114,036.68 is granted; and plaintiff is awarded a monetary judgment of $114,036.68 against defendant in use and occupancy; and it is further

ORDERED that plaintiff may move on notice within 30 days from service of this of this order with notice of entry for a supplemental judgment for unpaid use and occupancy from July 2024; and it is further

ORDERED that the branch of the plaintiff's motion for summary judgment on its claim for an order of ejectment is granted; and it is further

ORDERED that plaintiff is entitled to possession of apartment 3F located at 19 West 89th Street, New York, New York, as against defendant, and the Sheriff of the City of New York, County of New York, upon receipt of a certified copy of this decision and order and payment of proper fees, is directed peaceably to place plaintiff in possession accordingly upon the expiration of 14 days from receipt of the decision and order; and it is further

ORDERED that upon the expiration of 14 days from service of notice of entry of this decision and order, plaintiff may exercise all acts of ownership and possession of apartment 3F located at 19 West 89th Street, New York, New York, including entry thereto, as against defendant; and it is further

ORDERED that defendant's cross-motion to amend his answer is denied; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on defendant and on the office of the County Clerk (using the NYSCEF document type "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.