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Decided on May 5, 2006
Civil Court of the City of New York, New York County

55235/06 Petitioner's Attorney Laurence Reinlieb, Esq. BY: Lawrence Reinlieb, Esq. 350 Fifth Avenue Ste. 7610 New York, NY 10118 212-736-3446 Respondent's Attorney Cornicello & Tendler, LLP
BY: David B. Tendler, Esq.
116 John Street
New York, NY 10038
212-994-0260
Pam Jackman-Brown, J.
Respondent moves to dismiss this summary non-payment proceeding pursuant to CPLR 3211(a)(1) on the basis of Petitioner's failure to offer a preferential rent in the most current lease renewal in violation of the preferential rent rider of the initial lease. Respondent, further, seeks attorney's fees if she prevails.
Respondent resides in the rent stabilized Apartment No.1-B located at 56 West 65th Street, New York, NY 10023, pursuant to an initial lease term of 12/1/02 through 11/30/04. The initial lease dated January 8, 2003, included a preferential rent rider. See Respondent's Exhibit #A. The preferential monthly rent for the initial lease was $1,200.00 with a legal regulated rent of $1,337.50. The second lease renewal for the term 12/1/04 through 11/30/05 was renewed on the same terms and conditions of the initial lease with a preferential rent renewal option.
On or around August 2005, Petitioner sent Respondent the third lease renewal. This third lease renewal, unlike the prior leases, did not offer the preferential rent but the [*2]higher legal regulated rent. On or around September 14, 2005, Respondent signed, dated and returned the renewal lease to Petitioner for a two-year term with a check for the increased security deposit. No changes were made by Respondent to the offered renewal lease. Sometime prior to December 1, 2005, Respondent sought to rescind and reject the offered renewal lease. She sent a letter to Petitioner advising that the rent increase which Petitioner had offered was in excess of statutory limits. She enclosed a rent check representing what she calculated to be the lower preferential rent for the renewal term and requested the return of her additional security deposit. While Respondent's letter to Petitioner is undated, it is undisputed that Respondent notified Petitioner of her rejection prior to the renewal lease effective date of December 1, 2005. Petitioner, by letter dated December 1, 2005, returned Respondent's check for the preferential rent and enclosed a DHCR fact sheet explaining a landlord's right to abandon a preferential rent. Thereafter, Respondent served and filed this motion to dismiss.
The 2003 Amendment of the Rent Stabilization Law

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New York Law