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Posted by TenantNet on May 18, 1996 at 01:28:36:

In Reply to: Re: Initial Registered Rent posted by TenantNet on May 18, 1996 at 01:21:30:

NYLJ, November 16, 1990
P. 24, Col. 3,4
First Dept. Appellate Division

561 N.Y.S.2d 585 (A.D. 1 Dept. 1990)
====================================

Smitten v. 56 MacDougal Street Co.
167 A.D.2d 205 (A.D. 1 Dept. 1990)

====================================

************************************
Judith Smitten
Plaintiff-Respondent,
v.
56 MacDougal Street Co., etc., et al,
Defendants-Appellants.
************************************

Supreme Court, Appellate Division, First Department
November 13, 1990
Before Kupferman, J.P., and Milanos, Rosenberger, Asch and Kassal, JJ.

Memorandum Decision

Judgment, Supreme Court, New York County (Shirley Fingerhood, J.), entered
on May 10, 1990, which found in favor of plaintiff against defendant in the
amount of $44,796.83, is unanimously affirmed, without costs. The appeal from
the order of the same court and justice, entered on April 25, 1990, which
granted plaintiff's motion pursuant to CPLR 3212 for summary judgment and
denied defendant's cross-motion pursuant to CPLR 3211 for dismissal of the
complaint, is dismissed as superseded by the appeal from the aforesaid
judgment, without costs.

Plaintiff was the first tenant in this formerly rent-controlled apartment
after a purported vacancy decontrol, for which the landlord did not file an
Initial Legal Rent Registration, and did not file an annual registration
from 1985 through 1988 inclusive. The plaintiff sought rent overcharges for
a period covering March, 1986, through November, 1988, inclusive, alleging
that the base rent was the last legal rent-controlled rate of $189.20 per month.

The IAS court properly determined that it had subject matter jurisdiction
(Emergency Tenant Protection Act Sec. 12 [L. 1974, ch. 576, Sec. 4, as amended];
McKinney's Uncons. Laws of N.Y. Sec. 8632[a][1][f]. This is a rent overcharge
proceeding, and not, as defendants contend, a Fair Market Rent Appeal.
A Fair Merket Rent Appeal requires that the initial legal regulated rent
be effectively determined (Rent Stabilization Law [Administrative Code of City
of N.Y.] Sec. 26-513[b][1]), for which registration of the initial rent,
plainly lacking here, is a prerequisite. (Rent Stabilization Code
[Administrative Code of City of N.Y.] Sec. 2521.1[a][1]). The IAS court
correctly held that since there was no initial registration, the legal
rent rate was the last rate under rent control.

Further, as defendants failed to meet their burden of disproving
willfulness, the IAS court properly awarded treble damages (Rent
Stabilization Law [Administrative Code of City of N.Y.] Sec. 26-516[a]). It
is the landlord's burden to disprove willfulness, which
defendants failed to do.

=========================================================================

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Comments:
: NYLJ, November 16, 1990
: P. 24, Col. 3,4
: First Dept. Appellate Division

: 561 N.Y.S.2d 585 (A.D. 1 Dept. 1990)
: ====================================

: Smitten v. 56 MacDougal Street Co.
: 167 A.D.2d 205 (A.D. 1 Dept. 1990)

: ====================================

: ************************************
: Judith Smitten
:         Plaintiff-Respondent,
: v.
: 56 MacDougal Street Co., etc., et al,
:         Defendants-Appellants.
: ************************************

: Supreme Court, Appellate Division, First Department
: November 13, 1990
: Before Kupferman, J.P., and Milanos, Rosenberger, Asch and Kassal, JJ.

: Memorandum Decision

: Judgment, Supreme Court, New York County (Shirley Fingerhood, J.), entered
: on May 10, 1990, which found in favor of plaintiff against defendant in the
: amount of $44,796.83, is unanimously affirmed, without costs. The appeal from
: the order of the same court and justice, entered on April 25, 1990, which
: granted plaintiff's motion pursuant to CPLR 3212 for summary judgment and
: denied defendant's cross-motion pursuant to CPLR 3211 for dismissal of the
: complaint, is dismissed as superseded by the appeal from the aforesaid
: judgment, without costs.

: Plaintiff was the first tenant in this formerly rent-controlled apartment
: after a purported vacancy decontrol, for which the landlord did not file an
: Initial Legal Rent Registration, and did not file an annual registration
: from 1985 through 1988 inclusive. The plaintiff sought rent overcharges for
: a period covering March, 1986, through November, 1988, inclusive, alleging
: that the base rent was the last legal rent-controlled rate of $189.20 per month.

: The IAS court properly determined that it had subject matter jurisdiction
: (Emergency Tenant Protection Act Sec. 12 [L. 1974, ch. 576, Sec. 4, as amended];
: McKinney's Uncons. Laws of N.Y. Sec. 8632[a][1][f]. This is a rent overcharge
: proceeding, and not, as defendants contend, a Fair Market Rent Appeal.
: A Fair Merket Rent Appeal requires that the initial legal regulated rent
: be effectively determined (Rent Stabilization Law [Administrative Code of City
: of N.Y.] Sec. 26-513[b][1]), for which registration of the initial rent,
: plainly lacking here, is a prerequisite. (Rent Stabilization Code
: [Administrative Code of City of N.Y.] Sec. 2521.1[a][1]). The IAS court
: correctly held that since there was no initial registration, the legal
: rent rate was the last rate under rent control.

: Further, as defendants failed to meet their burden of disproving
: willfulness, the IAS court properly awarded treble damages (Rent
: Stabilization Law [Administrative Code of City of N.Y.] Sec. 26-516[a]). It
: is the landlord's burden to disprove willfulness, which
: defendants failed to do.

: =========================================================================


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