201 LLC v. MICKEL MILO (2026)

Recitation, as required by CPLR § 2219(A), of the papers considered in the review of Petitioner's Motion to restore this proceeding to the calendar, strike Respondents' answer, deem the petition admitted, and for a final judgment of possession and a warrant of eviction:

Papers

Respondent's Motion (Numbered 7-15 on NYSCEF) 1

Petitioner's Opposition (Numbered 16-20 on NYSCEF) 2

Petitioner's Reply (Numbered 21 on NYSCEF) 3

Upon the foregoing cited papers, the decision/order on this motion is as follows:

Statement of Facts and Procedural History

On April 7, 2025, Petitioner commenced this non-payment proceeding.¹ Petitioner alleges that Destiny Milo and Mikel Milo ("Respondents") failed to pay $12,174.85 for the rental of 201 Linden Boulevard, Brooklyn, NY 11226 ("Premises").² Shortly thereafter, on April 23, 2025, Respondent Destiny Milo ("Destiny") filed their pro-se answer.³ Destiny's answer raised the following defenses: (1) the monthly rent sought is not the legal rent or the current lease rent; (2) that Petitioner owes them money for repairs and services they paid for; (3) the owner failed to make repairs; (4) laches; (5) a general denial; and (6) counterclaims seeking a rent abatement and a judgment based on their aforementioned defenses.⁴

On October 15, 2025, the New York Legal Assistance Group appeared for Respondents and filed a Notice of Appearance.⁵ Shortly thereafter, on October 28, 2025, Petitioner consented to Respondents filing an amended answer.⁶ The parties also agreed to motion practice, whereby Respondent would file any motion by November 17, 2025, opposition by December 2, 2025, and reply by December 10, 2025.⁷ Respondents also waived traverse.⁸ The parties agreed to adjourn the case to December 11, 2025.⁹

On November 17, 2025, Respondents filed their motion.¹⁰ Respondents' motion seeks to: (1) amend their answer under CPLR 3025; (2) dismiss this case because Petitioner failed to register the subject premises as required by NYC's Housing Maintenance Code (HMC); (3) summary judgment under CPLR 3212 for an order to correct (OTC) outstanding housing violations and a judgment in favor of Respondents' warranty of habitability defense; and (4) leave to conduct discovery on rent overcharge.¹¹

On December 5, 2025, Petitioner filed their opposition to Respondents' motion. First, Petitioner concedes Respondents' motion to amend. Petitioner agreed under the stipulation dated October 25, 2025, that Respondents could amend their answer.¹² Petitioner opposes Respondents remaining arguments.¹³

On December 10, 2025, Respondent filed a reply in support, in which they withdrew their demand to have this matter dismissed due to Petitioner's alleged failure to register properly the subject premises as required by the HMC.¹⁴ Respondents concede Petitioner has properly registered the subject premises.¹⁵ Consequently, due to legal concessions by both Petitioner and Respondents, the only issues to be determined by the instant motion practice is whether Respondents are entitled to discovery for the alleged rent overcharge, and whether Respondents are entitled to an OTC and a judgment in favor of their warranty of habitability claim as a matter of law.

Discovery

Respondents allege that Petitioner failed to register correctly the subject premises' legal regulated rent (LRR).¹⁶ Respondents claim Petitioner's 2012 LRR of $1,200.00 was unlawful, representing a 62.48% increase from 2011's LRR $847.64, exceeding the permitted 20% increase.¹⁷ A review of the premises' registered rent, shows that the landlord increased the 2011 LRR from of $847.64 to $1356.69 and provided a preferential rent of $1,100.00 not $1,200.00 in 2012.¹⁸ This registration represented a 60.05% annual increase from the $847.64 LRR. And adjusting for the registered $1,100.00 preferential rent, the increase amounted to a 29.77% increase.¹⁹ The rent registration only notes that the landlord took a vacancy increase.²⁰

Respondents' motion argues that the above annual increase amounts to a rent overcharge and justifies discovery on the details of the claimed increase. Specifically, Respondents argue that under Rent Stabilization Law (RSL) 26-516(h) "the Court investigating complaints of overcharge and in determining the legal regulated rents, shall consider all available rent history which is reasonably necessary to make such determinations"²¹ Since Petitioner is the only party who can explain the 2012 increase, and such information is necessary to determine whether the increase was proper, Respondents allege they established ample need for discovery.²²

In response, Petitioner argues Respondents failed to show ample need for discovery.  ²³ Specifically, Petitioner claims Respondents failed to allege a proper claim for overcharge.²⁴ Petitioner argues Respondents must plead fraud with sufficient particularity to look-back beyond the six-year statute of limitations.²⁵ Petitioner argues that simply describing a mere increase in rent alone fails to plead a fraudulent scheme to deregulate the premises.²⁶

In reply, Respondents argue it is unnecessary to plead fraud if the tenancy started after the enactment of the Housing Stability and Tenant Protection Act of 2019, as is the case here.²⁷ It is undisputed that Respondents' tenancy started in 2022, three years after the HSTPA's enactment.²⁸ Furthermore, Respondents argue that courts can always examine the entire rent history to determine whether the owner is charging the proper rents prospectively, even when a tenant fails to allege fraud.²⁹

The Housing Stability and Tenant Protection Act of 2019 (HSTPA) provides that a court

shall consider all available rent history to determine the legal regulated rent for the purposes of determining an overcharge . . . Nothing contained in this subdivision shall limit the examination of rent history relevant to a determination as to:

(i)whether the legality of a rental amount charged or registered is reliable in light of all available evidence including but not limited to whether an unexplained increase in the registered or lease rents, or a fraudulent scheme to destabilize the housing accommodation, rendered such rent or registration unreliable  ³⁰

Prior to the HSTPA's enactment, overcharge claims were limited to the four-year period preceding the filing of the overcharge complaint, unless the tenant produced evidence of a fraudulent scheme to deregulate.³¹ In Matter of Regina Metro Co. LLC v. New York State Div. of Housing & Community Renewal,³² the Court of Appeals held that "the overcharge calculation amendments [in the HSPTA] cannot be applied retroactively to overcharges that occurred prior to their enactment." Specifically, Respondents would have to allege a fraudulent scheme to go beyond the four-year look-back period.

Despite the inability to apply the HSTPA retroactively to overcharges occurring prior to its enactment, Courts have held no such "retroactive effect is implicated" where the tenant's lease commenced after the enactment of the HSTPA and no pre-HSTPA overcharge is at issue.³³ In Matter of West Pierre Assoc. LLC v. Harvey, the Appellate Division, First Department, held that the tenant was not required to assert fraud for alleged overcharges occurring during a tenancy, which began after the HSTPA enactment. The tenant needed only to raise a question of fact "whether the rent history is unreliable."³⁴ Furthermore, In Matter of Syllman v. New York State Div. of Hous. & Community Renewal,³⁵ the Appellate Division, Second Department, held where a tenant only seeks a calculation of the LRR and not overcharge damages this does not create the same retroactivity concerns and courts "should consider all available rent history as provided by the HSTPA."³⁶

In the instant proceeding, it is undisputed that Respondents' tenancy commenced in 2022, after the enactment of HSTPA. As held in Harvey  ³⁷ and Matter of Syllman  ³⁸ , Respondents' overcharge claim is unburdened by Matter of Regina's  ³⁹ retroactive concerns. Contrary to Petitioner's argument, Respondents are not required to show a "fraudulent scheme," but need only show that the registered or charged rent is unreliable.

Respondents claim Petitioner took an improper vacancy increase in 2012. The Rent Regulation Reform Act of 1997 allowed owners in March 2012 to take a 16.5% vacancy increase for a one-year lease.⁴⁰ Additionally, if the prior tenant's tenancy was 8 or more years, owners were entitled to a longevity increase of 0.6% for every year of the prior tenant's tenancy.⁴¹ According to the DHCR registration, the previous tenant's tenancy started in May 1998.⁴² If the prior tenant moved out right before the new tenant's tenancy began (03/2012), then the owner would be entitled to a 7.8% (13 x 0.6) longevity bonus for the 13 full years (May 1998—May 2011) of the prior tenant's tenancy. The total rental increase allowed would be 24.3%.

Though Respondents' claim that Petitioner was allowed only a 20% increase is erroneous, Petitioner's registration fails to provide any other reasons, such as an individual apartment improvement, why it took a 60.05% increase (2011 LRR of $847.64 to the 2012 LLR of $1356.69), which significantly exceeds the permitted 24.3% rental increase in 2012.⁴³ Even the $1,100.00 preferential rent allegedly charged to the new tenant amounted to a 29.77% increase, more than the 24.3% increase allowed in 2012.

Since Respondents have "raised a question of fact as to whether the rent history is unreliable, . . . [they have] established [ample] need for discovery."⁴⁴ Accordingly, the Court grants Respondents' motion for discovery. Petitioner must answer all interrogatories and produce all documents requested in Respondents' discovery request filed as NYSCEF Doc. # 14, by July 20, 2026. Notwithstanding the above, Petitioner is not required to produce all leases and lease renewals between Petitioner and Respondents as requested in document demand # 2(c), since Respondents have failed to show ample need to produce leases that should be in their possession.

Order to Correct

Respondents move for summary judgment seeking an OTC based on alleged housing code violations. The movant has the initial burden to establish a prima facie showing of entitlement to judgment as a matter of law.⁴⁵ The movant must tender sufficient evidence to demonstrate the absence of any material issues of fact.⁴⁶ The motion shall be supported by affidavits, the pleadings, and other available proof.⁴⁷ The affidavit supporting the motion must be by a "person having knowledge of the facts."⁴⁸ Alternatively, an attorney's affirmation based on documentary evidence is also sufficient to comply with the requirements of summary judgment.⁴⁹ The court should deny the motion if the movant fails to make a prima facie showing, regardless of the merits of the opposing papers.⁵⁰ If, however, the movant establishes a prima facie showing, the burden shifts to the opposing party to show there is material issues of fact which require trial.⁵¹ The opposing party must produce evidentiary proof that material issues of fact exist.⁵² General denials are insufficient to raise triable issues of fact.⁵³

To establish a prima-facie case for an OTC under HMC 27-2115 (h)(1), the movant must establish that conditions constituting violations exist at the subject premises. Under Multiple Dwelling Law 328(3), a violation issued by New York City's Department of Preservation and Development (DHPD) is presumptive evidence that said violation exists and courts "shall take judicial notice thereof as if same were certified as true under the seal and signature of the commissioner of that department." Respondents have established a prima facie case for an OTC. As of November 17, 2025, there are 10 open housing code violations within Respondents' apartment.⁵⁴

There are few defenses to an order to correct.⁵⁵ Permitted defenses include lack of standing or jurisdiction, completed repairs, non-violation conditions, facially insufficient notices, change of ownership, and economic infeasibility."⁵⁶

In defense, Petitioner asserts Respondents failed to provide access on agreed-upon dates.⁵⁷ To support this defense, Petitioner attaches a letter to their opposition allegedly sent to Respondents requesting access on November 24, 2025.⁵⁸ However, even if true, lack of access is not a defense to an OTC.⁵⁹

Accordingly, the Court grants Respondents' summary judgment motion for an OTC to the following extent: Petitioner must correct all violations of record in Petitioner's apartment as listed in DHPD's Violation Summary Report dated November 17, 2025, filed on NYSCEF as document # 13. Petitioner must correct all class "C" violations within 21 days, and all class "B" violations within 30 days from the filing of this Decision/Order upon NYSCEF. Petitioner must comply with 28 RCNY 25-101, when seeking access to Respondents' apartments to make the required repairs. Petitioner must comply with all city rules and regulations, including the city's building, housing, and health codes, when abating the violations of record. Petitioner must conduct all repairs in a workmanlike manner. Petitioner's failure to correct the above violations may subject them to civil penalties under HMC § 27-2115 and contempt. Upon default, Respondents may move for appropriate relief, including civil penalties and contempt. Furthermore, Respondents' claims seeking an OTC for conditions for which DHPD did not issue a violation remain triable issues of fact. Finally, the Court also sets for trial Respondents' breach of warranty of habitability claim under RPL 235-b (1). Access denial is not a defense to an OTC, but may apply to Respondents' warranty claim.⁶⁰

Conclusion

The Court denies as moot Respondents' motion to amend their answer. Petitioner has accepted Respondents' Verified Amended Answer and Counterclaims (NYSCEF Doc. 11). Respondents have withdrawn their request to dismiss based on improper registration. The Court grants Respondents' motion for discovery as outlined above, and grants summary judgment in part by issuing an OTC. Respondents' request for judgment on the warranty of habitability defense is denied. This Court adjourns this matter to July 22, 2026, at 9:30 a.m. for all purposes, including a pre-trial conference.

This is the decision and order of the Court.

Dated: July 1, 2026

New York, New York

TRAVIS J. ARRINDELL

JHC

FOOTNOTES

1.   See Petition, NYSCEF Doc. # 1, at ¶ 6.

2.    Id.

3.    See Respondent's Answer (Self-Represented), NYSCEF Doc. # 4.

4.    Id.

5.   NYSCEF Doc. # 5.

6.   NYSCEF Doc. # 6.

7.    Id.

8.    Id.

9.    Id.

10.   NYSCEF Doc. # 7.

11.    See Respondents' Affirmation in Support (NYSCEF Doc. # 8), at ¶ 2.

12.    See Petitioner's Affirmation in Opposition to Respondents' Motion (NYSCEF Doc. # 16), at ¶ 13-14.

13.    Id. at ¶ 28-53.

14.    See Respondents' Attorney Affirmation in Reply to Petitioner's Opposition (NYSCEF Doc. # 21), at ¶ 4.

15.    Id.

16.    See Respondents' Verified Amended Answer and Counterclaims (NYSCEF Doc. # 11), at ¶ ¶ 18-22.

17.    Id., at ¶ 21.

18.   NYSCEF Doc. # 12.

19.    Id.

20.    Id.

21.    See Respondents' Affirmation in Support of Summary Judgment (NYSCEF Doc. # 8), at ¶ 32.

22.    Id., at ¶ 38; see also NY Univ. v. Farkas, 121 Misc 2d 643 (Civ Ct, New York County 1983).

23.    See Petitioner's Affirmation in Opposition to Respondent's Motion (NYSCEF Doc. # 16), at ¶ 41.

24.    Id., at ¶¶ 44-45; see also Jonathan Samet's Affidavit in Opposition to Respondent's Motion (NYSCEF Doc. # 16), at ¶ 20.

25.    Id.

26.    Id.

27.    See Respondents' Attorney Affirmation in Reply to Petitioner's Opposition (NYSCEF Doc. # 21), at ¶ 26.

28.    Id.; see also NYSCEF Doc. # 12, at pg. 5 (registering Respondents' vacancy lease starting January 1, 2022).

29.    Citing Matter of West Pierre Assoc. LLC v. Harvey, 241 AD3d 413.

30.    See L 2019, ch 36, § 1, part F, § 7; see also RSL § 26-516(h).

31.   Matter of Grimm v. State of NY Div. of Hous. & Community Renewal Off. of Rent Admin., 15 NY3d 358 (2010).

32.   35 NY3d 332, 363 [2020].

33.    Matter of West Pierre Assoc. LLC v. Harvey, 241 AD3d 413 (citation omitted).

34.    Id., at 414.

35.   233 AD3d 977.

36.    Id., at 978.

37.   241 AD3d 413.

38.   233 AD3d 977.

39.   35 NY3d 332, 363 [2020].

40.   L 1997, ch 116, § 20 (a-1); see also NYC's Rent Guideline Board Order # 43 (https://rentguidelinesboard.cityofnewyork.us/wp-content/uploads/2025/07/RGB-Apartment-Chart.pdf).

41.    Id.

42.   NYSCEF Doc. # 12.

43.   L 1997, ch 116, § 20 (a-1); see also NYC's Rent Guideline Board Order # 43 (https://rentguidelinesboard.cityofnewyork.us/wp-content/uploads/2025/07/RGB-Apartment-Chart.pdf).

44.    Matter of West Pierre Assoc. LLC v. Harvey, 241 AD3d 413, 414.

45.    Id., at 324.

46.    Id.

47.    Id.

48.    Id.

49.   Alvarez v. Prospect Hosp., 68 NY2d 320, 325 (NY 1986).

50.    Id.

51.    Id.

52.    Id.

53.    Iandoli v. Lange, 35 AD2d 793, 793 (App. Div. 1st Dep't 1970); see also Gould v. McBride, 36 AD2d 706, 706-707 (NY App. Div. 1st Dep't 1971) stating (a general denial, without more, will not raise an issue of fact).

54.    See DHPD's Violation Summary Report (NYSCEF Doc. # 13).

55.   D'Agostino v. Forty-Three E. Equities Corp., 12 Misc 3d 486, 489-490.

56.    Id.

57.    See Jonathan Samet's Affidavit in Opposition to Respondent's Motion (NYSCEF Doc. # 16), at para 13.

58.   NYSCEF Doc. # 18 & 20.

59.   D'Agostino v. Forty-Three E. Equities Corp., 12 Misc 3d 486, 487 (stating "it is not a defense to an order to correct that a tenant refused access to repair the violation").

60.    Fifty-Seven Assoc., L.P. v Feinman, 924 N.Y.S.2d 309.

Travis J. Arrindell, J.