181 [2005]; see also Partnership 92 LP
v State of NY Div. Of Hous. & Community Renewal, 11 NY3d 859 [2008]).
Accordingly, the matter is restored to the Part A calendar on April 7, 2009 at 9:30 am to be
sent out forthwith to Part X for a hearing on the setting of the legal regulated rent, the rent [*6]overcharge claim and legal fees. Respondent's remaining
counterclaims are severed for a plenary proceeding.
The foregoing constitutes the decision and order of this court.
Dated: March 3, 2009____________________
New York, New YorkDavid J. Kaplan, J.H.C.
Footnotes
Footnote 1: A finding that the apartment
was never properly deregulated renders respondent's remaining arguments moot.
Footnote 2: Petitioner failed to register the
apartment with DHCR after 1999.
Footnote 3: Petitioner has also annexed a
rent ledger as part of Exhibit A of its opposition papers. The rent ledger shows that petitioner
billed Crump for increases based on the 2001 $950 rent that appear consistent with the rent
stabilization guidelines at the time for the period 2002-2004. However, petitioner failed to
register the apartment with DHCR during this time.
Footnote 4: The court does not make any
determination as to the actual validity of the 2001 lease as it has only been provided an
incomplete photocopy of the lease with an unsigned rider. However, for purposes of respondent's
summary judgment motion on the rent stabilization claim, the court is assuming that this copy of
the lease provided by petitioner is valid.
Footnote 5: The court is bewildered by
petitioner's decision to set a "preferential rent" and include it in subsequent leases if it truly
believed the apartment became deregulated in 2001 as there is no need for a "preferential rent" if
a unit is not subject to regulation.