LLC v. Justin Collins, Respondent. (2026)

Sammy Group LLC, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Justin Collins, the respondent in this proceeding ("Respondent"), seeking possession of 1264 Lexington Avenue, Apt. 4W, New York, New York ("the subject premises") on an allegation of nonpayment. Respondent interposed an answer on December 14, 2023 with counterclaims of breach of the warranty of habitability, harassment, and rent overcharge. The petition was dismissed on a prior date. The Court held a trial on Respondent's counterclaims on May 27, 2025, October 20, 2025, and July 13, 2026.

The trial record

Gregory Butler, an employee of the New York City Department of Buildings ("DOB Employee") testified that he is familiar with the subject building and that he reviewed a temporary certificate of occupancy, which has expired. Respondent submitted into evidence a temporary certificate of occupancy which issued on December 19, 2024 and expired on March 19, 2025 ("the C of O"). DOB Employee testified that DOB has not renewed the C of O. Respondent submitted into evidence a certificate of occupancy for the fourth floor of the subject building that expired on March 19, 2025. Respondent submitted into evidence a DOB violation for electric work done without a permit in the subject premises and other apartments.

The DOB Employee testified on cross-examination that he is not personally familiar with the subject building.

Lauren Whitehead ("the Property Manager") testified that she works for the managing agent and that she started working for the management on August 14, 2023. Respondent submitted into evidence a one-year lease commencing June 12, 2023 between Petitioner and Respondent for the subject premises with a monthly rent of $3,500.

The Property Manager testified that she manages thousands of units; that she is unaware of a registration of the subject premises at the New York State Division of Housing and Community Renewal ("DHCR"); that apartment 4N ("the predecessor apartment") was registered; and that the predecessor apartment had been split into two apartments, 4N ("the next-door apartment") and the subject premises.

Respondent submitted into evidence a rent breakdown, which showed that Petitioner received $3,000 on June 29, 2023, $2,145.16 on July 12, 2023, and $34,687.16 on May 6, 2024.

The Property Manager testified that the subject premises is subject to the Rent Stabilization Law; that she did not know how rents are determined; that if a lease has a guarantor, payments can be made in increments if the tenant does not pay the rent; that Petitioner has a practice of making a request to a guarantor under those circumstances; that the subject premises is a one-bedroom apartment; that she did not know how many one- or two-bedroom apartments are in the subject building; that she has visited the subject premises, in December of 2024; that she gained entry by the super, who had a key to the subject premises; that Respondent was not living in the subject premises at the time; that she did not know how many apartments are regulated; that she did not know the lowest Rent-Stabilized rent in the subject building; and that she manages seven buildings with a total of 2,500 units.

Respondent submitted into evidence the Property Manager's affidavit, which stated that the subject premises is subject to Rent Stabilization; that the subject premises was created in 2021 upon plans filed and approved by DOB, with perimeter walls and a layout that is separate and unique from the predecessor apartment, that she registered the subject premises with DHCR in 2022 with a rent of $2,500, and that the first rent for the subject premises could have been higher than the amount that was in the lease.

Respondent submitted into evidence a history of registrations of apartments in the subject building with DHCR pursuant to 9 N.Y.C.R.R. § 2528.3 going back to 1985. The registrations effective April 1, 2023 that showed that the registered rents in the subject building were $2,500 for the next-door apartment, $667.17 for apartment 5S, $1,961.08 for apartment 7E, and $2,675 for apartment 7N. Neither the subject premises nor the predecessor apartment appear on the history of registrations for the entirety of the history. Respondent submitted into evidence a rent roll for the subject building, which showed, inter alia, that the subject premises is a one-bedroom apartment with a square footage of 495, that the next-door apartment is a studio apartment with a square footage of 300, that apartment 5S is a three-bedroom apartment with a square footage of 1,097, that apartment 7E is a two-bedroom apartment with a square footage of 630, and that apartment 7N is a studio apartment with a square footage of 300.

The Property Manager testified that Petitioner did not offer Respondent a renewal lease; that she is aware of Respondent requesting repairs in the subject premises, to wit, a carbon monoxide detector; that the super investigated and found malfunctioning batteries and replaced it; that she was in the subject premises in January of 2025 and maybe one other time; that she did not meet Respondent in the subject premises; that other apartments in the "W" line, where the subject premises is, are most similar in size to the subject premises; that apartment 3W was registered as owner-occupied; that none of the other apartments in the "W" line have been registered; that she could not recall which lines in the subject building are one-bedroom apartments; that she believed it might be the "NE's" and the "SE's" but she would have to check; and that the subject premises is not registered with DHCR this year.

Respondent submitted into evidence a lease for the subject premises for the tenant before Respondent. The lease commenced on February 1, 2022 and had a monthly rent of $3,500. Respondent submitted into evidence the following leases for the next-door apartment: a lease commencing on January 15, 2022 with a monthly rent of $2,500, a lease commencing on July 30, 2023 with a monthly rent of $2,400, and a lease commencing on January 18, 2025 with a monthly rent of $2,750.

The Property Manager testified that apartments 3S and 5S are 1,097 square feet and the rents are $685.52 and $235.48 as of today, respectively, that apartment 4W is 495 square feet and the rent is $3,500; that she does not prepare the registrations; that the rent roll is not based on registrations; that the rent roll showed what rents were charged in May of 2025, which accounts sometimes for credits that are given; that apartment 3W showed a rent of $0 because of a credit; that apartment 3W is the super's unit and they don't charge for rent; that there are no apartments on the first or second floor of the subject building; that there are six apartments on the fourth floor of the subject building; that apartment 4SE is 540 square feet and has a rent of $1,750; that she did not know if 4SE is not rent-stabilized, but there is ongoing litigation; and that 4SE was first registered in 1997, and then registered as permanently exempt due to a high rent vacancy in 2000.

The Property Manager testified on cross-examination that there are no registered one-bedroom apartments in the subject building; that she was not aware of other rent-stabilized one-bedroom apartments in the subject building in 2021 and 2022; that the subject premises was created sometime in 2021; that the subject premises used to be a two-bedroom apartment but was split into a one-bedroom apartment and a studio apartment; that she believed that Respondent abandoned the subject premises; that tenants have different means by which to complain about repairs, including an email and a portal; and that either she or another manager assigns a request to a super or takes more expedited measures if the condition is urgent.

The Property Manager testified on redirect examination that she never met Respondent; that she understood that there were emails about a request for a buyout because Respondent was vacating the subject premises; that no buyout occurred; and that there was no written surrender.

Respondent submitted into evidence records from the Department of Housing Preservation and Development of the City of New York ("HPD") showing the following "C" violations of the New York City Housing Maintenance Code in the subject premises: a violation dated August 10, 2023 for a lack of gas, a violation dated November 3, 2023 for self-closing doors, a violation for an exposed electric supply in the basement and violations for not posting notices in the hallway and for inadequate garbage receptacles, and a violation dated November 3, 2023 for a knob in a tub.

Respondent submitted into evidence HPD records showing two certifications, one dated March 8, 2024 of a wiring violation and one dated December 17, 2023 for metal receptacles.

Respondent submitted into evidence a deed for the subject building.

Respondent testified that the lease does not reference Rent Stabilization; that no one from Petitioner's office told him that the subject premises was Rent-Stabilized; that he first heard that the subject premises was Rent-Stabilized when this case started; that he had started withholding rent because of conditions; that when he moved in the subject premises was filthy and not ready and still under construction; and that there was paint around when he moved in.

Respondent submitted into evidence photographs of the subject premises from when he first moved in. The photographs depicted smudges on surfaces, cans of paint, a loose doorknob, and a ladder and a bucket.

Respondent testified that he called Petitioner and that the work still did not get done so he had to delay moving in. Respondent submitted into evidence an email May 12, 2023 that Respondent sent to Petitioner notifying it of the conditions. Respondent testified that he stayed in a hotel and paid for it; that Petitioner apologized and said that they would send a cleaner; that the following day he got notice that the subject premises was ready for occupancy; that he partially moved into the subject premises; that the furniture deliveries had to be rescheduled; that when he first moved in, the bathtub had to be turned on with an Allen wrench; that there was a doorknob missing on a closet in the bedroom; that about three weeks after he moved in, there was an issue with the electricity; that he had no control over the electrical box; that he tried to turn on his electricity with Con Edison and Con Edison had no record of the subject premises; that Petitioner said that his electricity would be turned on for him; that the super said that he had to go to the next-door apartment and switch the electricity on; that this happened; that there were several problems with electricity shutting off; and that Petitioner flipped it back on.

Respondent submitted into evidence the following emails between Respondent and Petitioner: one dated May 8, 2023 where Petitioner stated that it would set up electricity upon move-in; two dated May 30, 2023 and May 31, 2023, following up on "issues"; two dated June 28, 2023 and July 16, 2023 from Respondent where he stated that he smelled gas; one dated July 12, 2023, where Respondent said that he continued to smell gas even though Petitioner came to look at it; one dated July 28, 2023 asking about when a gas line will be repaired; and one dated August 10, 2023 where Respondent said that he has no electricity.

Respondent testified that, after several weeks, Petitioner sent someone to replace a valve; that after Petitioner replaced the valve he still smelled gas; that it was never repaired; that he called 311; that Con Edison came to repair it; that it was fine after that; that there were multiple occurrences of a lack of hot water and brown dirty water; that he moved in on May 12, 2023 and moved out in January 20, 2024; that collectively he did not have hot water or had dirty water 13 or 14 days; that the elevator was a hazard; that he saw dogs having to jump up to get out of the elevator; that he used the stairs quite a bit; that he was not aware of a super; that there was a super named Mario Fenko ("Operations Supervisor") who did not live in the subject building; that garbage was always piled up; that it was disgusting that stuff would always be left outside the trash room; that after many complaints they hired someone to take care of it, but in the first few months it was piled to the top and very unsanitary; that once a week for two or two-and-a-half months he experienced that; that he moved out because of how the subject premises looked when he moved in; that there were months of repairs not being done; that he had to explain to Petitioner for many months how payments were supposed to be applied; that Petitioner said that Petitioner would reimburse him for a hotel room; that there were gas leaks, bad water service, an elevator that did not work, a lack of safety because a door would not be working; that the video system was broken; that packages were being stolen; that the Operations Supervisor said that a battery had to be replaced in a carbon monoxide detector; that he understood beeps that he heard to mean that there was carbon monoxide exposure; that after the Operations Supervisor left he still heard four beeps; that the beeps continued even with the windows open; that he left because he was worried for his safety; that there was an email about the Fire Department breaking down his door because of carbon monoxide; that his credit score had been over 700; that his credit score went down to 610 because Petitioner reported incorrect amounts; that he tried to refinance student loans; that he tried to dispute the reporting to the credit reporting agency; that the report was only on Trans Union; that he was denied refinancing; that his credit card limits went down; that Petitioner claimed that he owed around $30,000; that the amount was already paid; and that after they filed the Supreme Court case there was an amount filed again.

Respondent submitted into evidence emails, one dated January 9, 2024 about remedying violations regarding self-closing doors, one dated January 10, 2024 asking about violations for a missing faucet in a tub, carbon monoxide/smoke detectors, a self-closing door, one dated January 16, 2024 from Petitioner about the Fire Department breaking down the door of the subject premises because an alarm went off, saying that they would fix the door, and one dated January 22, 2024 saying that the Operations Supervisor would be there shortly and would fix the door.

Respondent testified that he has to pay the guarantor; that he still has keys to the subject premises; that he has not written a surrender; that the subject premises is about 495 square feet; that the subject premises has a kitchen, a hallway, a living room, and a very small bedroom; that the "W" line in the building is very similar to his; that when he returned to the subject premises in July of 2024 he saw ripped walls and construction; that he saw bookshelves, air conditioning units, a dog bed, and a television; that he was not intending to permanently vacate the subject premises; and that he let Petitioner know his intentions because of email communications.

Respondent submitted into evidence an email dated August 29, 2024 Respondent sent to attorneys for both parties, saying he saw construction in the subject premises.

Respondent testified on cross-examination that before he moved into the subject premises he did not get a chance to inspect it; that someone he knew inspected the subject premises maybe two or three weeks before he signed the lease; that the person he knew did not express concerns that would prevent him from signing a lease except to say something with regard to the corridor; that someone who works for Petitioner was pushing the idea of a guarantor; that he made a $3,030 payment for a security deposit less the amount he paid for a hotel; that Petitioner told him that Petitioner would deduct the hotel payment; that he took occupancy one month prior to the commencement of the lease on June 12, 2023 pursuant to a rider, on May 12, 2023, and he was billed for rent; that he also paid $3,500 to the broker; that in August, September, October, November, and December of 2023 he was living in the subject premises and did not pay rent; that he had access to the entirety of the subject premises from May of 2023 through January of 2024; that he had issues with the electricity in June of 2023; that he was never billed for electricity in the subject premises for the entirety of his occupancy; that the photograph of the valve is more like a hose; that he is not a plumber and did not know the difference between a hose and a valve; that he thought that Joseph was inept; that there was credit reporting multiple times, around 2023, in April of 2024, and May of 2025; that his student loan refinancing was denied because of a past due collection; that when he moved in he had a couch, a television, a bed, a mattress, end tables, two air conditioning units, rugs, kitchen appliances, and a chest of drawers; that he left the subject premises; that when he left he took everything but the two air conditioners and an air fryer and some random items; that he moved in with a friend; that he brought his bed and mattress to his friend's apartment; that the apartment was a really big loft; that he brought all of the furniture to the loft apartment; that his friend already had a bed; that the apartment he moved into was different from the loft apartment; that the apartment he moved to was a one-bedroom; that he sold some of his belongings and consolidated the rest into the new apartment; that he went back to the subject premises shortly after he departed because he needed to check if the door was unlocked after the Fire Department went in and it was unlocked; that he went back two more times, but he did not remember the time frame although he went back in June or July of 2024 and noticed that the subject premises was under construction; and that he went back to the subject premises last year around February of 2025 because a neighbor saw a package being delivered and noted that someone else took occupancy.

Petitioner submitted into evidence a verified summons and complaint verified on April 2, 2025 ("the Complaint") in an action that Respondent commenced against Petitioner in New York County Supreme Court, Collins v. Sammy Group, Index #652127/2025. The complaint shows that Respondent sought causes of action against Petitioner for, inter alia, unlawful eviction and harassment.

Respondent testified on cross-examination that the statement in the Complaint that he felt harassed is a truthful statement; that harassment was a failure to provide essential services, including fixing a gas stove leak for fourteen weeks and its recurrence, multiple attempts to have this fixed, a carbon monoxide leak, and a failure to rectify the situation and the living conditions; that it was like he being ignored; that he was told that they could not find the part or they would have to order something; that email rebuttals and everything with that constituted harassment; that he knew that breach of the warranty of habitability and harassment were raised in the Supreme Court action; that he did not recall the exact amount that he paid to guarantors, but he thought it was $2,200 or $2,300; that he has not paid anything since he signed the contract with the guarantors; that he is not aware of an email he sent before his lease expired in July of 2024 saying that he did not intend to vacate; that after he moved into the subject premises in May of 2023 there was an attempt to repair the gas stove and an attempt to repair the faucet knob in the bathroom; that Operations Supervisor came in to repair with an outside contractor to repair the gas stove; that he did not recall the exact number of times Petitioner tried to make repairs but it was very little; and that Joseph Petruccia was the old property manager but he did not remember that person being in the subject premises.

Respondent testified on redirect examination that he left the subject premises because he was in fear of continued carbon monoxide leaks; that he was fed up with dealing with all of the issues in the subject premises; that he kept asking Petitioner to repair the stove because it would not come on; that for thirteen weeks he did not have an active stove; that Petitioner came to replace the hose and turned it on and said it was working fine; that over the course of that day and that week he continued to smell gas; that he shut off the gas valve behind the stove; that he did not trust that Petitioner would fix it so he called Con Edison; that after the carbon monoxide leak the Fire Department broke the door and the alarm went off; that the next morning his ring cameras captured the Fire Department busting down the door and opening windows and breaking glass; that he notified Petitioner about the incident; that Petitioner acknowledged that the Fire Department came; that Petitioner did not tell him that it was safe to go back to the subject premises; and that the subject premises was advertised.

Operation Supervisor testified that he has worked for fifteen years; that he was a building supervisor since June of 2023; that he did work himself and he got maintenance help from other buildings; that he was at the subject building sometimes daily; that when he took over the building there were 350 HPD violations; that they took that down to 61 violations; that they worked by classification of violation; that he was actually involved with the corrections of violations; that the exhibit in evidence showing certifications of violations indicates that; that he knew Respondent when Respondent occupied the subject premises; that he was in the subject premises for maintenance requests; that he was in the subject premises in January of 2023; that there was an issue with the shower body; that at the end of July there was a gas leak in a stove; that he went to the subject premises and checked the gas leak; that the issue was fixed; that a gas pipe was replaced; that a handyman was in the subject premises and replaced the pipe; that this job took thirty minutes; that there was a pinhole in the gas pipe; that there were no other issues to his knowledge; that on or about January 21, 2024 there was an issue with a carbon monoxide detector; that the Fire Department came to the building; that they found fumes in the basement and shut down the boiler; that the next day they got a plumber to fix the problem; that there was no vacate order for any apartment; that the Fire Department opened windows and they replaced locks; that there was no vacate order for any other government agency; that he was not aware of any lack of water in the subject premises; that after January of 2024 he was in the subject premises on May 1; that there was an HPD notice dated February 22, 2024; that on May 1, 2024 there were a few pieces of furniture like television brackets and three or four pieces of small furniture in the living room; that there were no issues with fumes after January of 2024; that the subject premises was unlocked on May 1, 2024; that from February through May of 2024 he did not see Respondent at the building; that he was not aware of other repairs at the subject premises; that there were a few issues with the elevator, like the door locking and the floor level; that he called a servicer; that the elevator was off line for a maximum of one day; and that there is a tenant in the subject premises who is the same tenant since Respondent was there.

Operation Supervisor testified on cross-examination that he lives in New York; that he is only employed by Petitioner; that he started working for the management company fifteen years ago; that he started working for Petitioner in 2023 after Respondent moved in; that he first met Respondent in July of 2023; that the subject building has 26 units; that he did not live at the building; that when he first met Respondent it was because of issues about the shower body and work orders; that he had an employee of Petitioner fix the hose in the stove; that this was not standard operating procedure; that he did not hire a licensed plumber because it is an easy fix; that Con Edison came to the subject premises; that he did not know the date; that there was a red tag on the door; that he fixed the leak; that Con Edison was there; that the pipe was fixed; that there was an incident in 2024 with a carbon monoxide detector; that the Fire Department came; that there were fumes coming from the basement; that he does not have a key to the subject premises; that one apartment was split into two; that he was not involved with splitting the apartment; and that he knew about a Housing Part proceeding commenced against Petitioner pursuant to N.Y.C. Admin. Code § 27-2115(h)("HP proceeding"). The Court took judicial notice of the HP proceeding, captioned at Sirikulthada et al., v. Sammy Group LLC, Index 6035/2023.

Operations Supervisor testified on cross-examination that he did not know that the next-door apartment controlled the electricity for the subject premises; that he learned that after a few weeks; that Petitioner emailed Respondent about the electricity; that he did not know about this proceeding at the time; that he did not remember when he first learned of this proceeding; that on May 1, 2024 an HPD notice was behind the door; and that Petitioner could not reach Respondent.

Operations Supervisor testified on redirect examination that he had someone fix the stove; that it took him days to address the stove after he learned about it; that the leak in the gas did not recur to his knowledge; that the electric box for the subject premises is connected to the next-door apartment; that electric work was not done before Respondent moved in; and that Respondent still had electricity in the subject premises.

Discussion

The preponderance of the evidence, both the certificates of occupancy in evidence and witness testimony, shows that the predecessor apartment was subdivided into the subject premises and the next-door apartment around 2021.

Before the Housing Stability and Tenant Protection Act ("HSTPA") occasioned an amendment of the Rent Stabilization Code, 9 N.Y.C.R.R. § 2520.11(r)(12) provided an exemption from rent regulation where a landlord "substantially alters the outer dimensions of a vacant housing accommodation, which qualifies for a first rent equal to or exceeding the applicable amount qualifying for deregulation ...." An amendment of the Rent Stabilization Code dated November 8, 2023 removed this provision. No other discernible exemption from the Rent Stabilization Law applies to the subject premises.¹ The subject premises is therefore subject to the Rent Stabilization Law. See N.Y.C. Admin. Code § 26-504.

The legal rent for a new apartment that derives from a larger apartment is the rent of the prior, larger apartment, decreased pro rata by the square footage of the newer apartment in relation to the older larger apartment. N.Y.C. Admin. Code § 26-511(c)(15)(e). The record does not contain rents for the predecessor apartment because Petitioner never registered the predecessor apartment with DHCR pursuant to N.Y.C. Admin. Code § 26-517.

For the purposes of determining a rent overcharge, the legal regulated rent is the rent indicated in the most recent reliable annual registration statement filed and served upon the tenant six or more years prior to the most recent registration statement plus subsequent lawful adjustments. N.Y.C. Admin. Code § 26-516(a). Where, inter alia, defective registrations preclude such a determination of a base date rent, alternate means determine the base date rent. 9 N.Y.C.R.R. § 2522.6(b)(2)(i), Arnold v. 4-6 Bleecker LLC, 2017 NY Slip Op. 31170(U), 6-7 (S. Ct. NY Co. 2017). Specifically, 9 N.Y.C.R.R. § 2522.6(b)(2)(iii) states that the rent shall be set at the lowest of any of the amounts according to the options set forth in 9 N.Y.C.R.R. § 2522.6(b)(3).

The first method is to set the rent at the lowest rent registered for a comparable apartment in the building in effect on the date the complaining tenant first occupied the apartment. 9 N.Y.C.R.R. § 2522.6(b)(3)(i). Respondent first moved into the subject premises in 2023. The only registered rents in the subject building at that time were not one-bedroom apartments like the subject premises and therefore not "comparable" apartments. Cf. Kreisler v B-U Realty Corp., 2019 NY Slip Op. 32920(U), 11 (S. Ct. NY Co. 2019), affirmed, 198 AD3d 568 (1st Dept. 2021)(finding apartments to be "comparable" for this purpose if they have the same number of rooms).

The second method is to reduce Respondent's initial rent reduced by the percentage adjustment authorized by 9 N.Y.C.R.R. § 2522.8. 9 N.Y.C.R.R. § 2522.6(b)(3)(ii). A one-year lease, the Respondent's initial lease, would have entitled Petitioner to a one-year guidelines increase as promulgated by the Rent Guidelines Board ("RGB"). Under N.Y.C. Admin. Code § 26-510(b), the RGB establishes rent adjustments for the units subject to Rent Stabilization.The Court can take notice of the RGB guidelines. See, e.g., Curry v. Battistotti, 5 Misc 3d 1012(A)(Civ. Ct. NY Co. 2004), affirmed, 12 Misc 3d 129(A)(App. Term 1st Dept. 2006). The adjustment for a one-year increase for a lease commencing in June of 2023 is 3.25%. RGB Order 54. Reducing the rent of $3,500 by 3.25% leaves a difference of $3,386.25.

The third method is the last registered rent paid by the prior tenant. 9 N.Y.C.R.R. § 2522.6(b)(3)(iii). As there is no registered rent, the Court cannot employ this method.

The fourth method is an amount based on data compiled by DHCR, using sampling methods determined by the DHCR, for regulated housing accommodations. 9 N.Y.C.R.R. § 2522.6(b)(3)(iv). While this regulation appears to assume a determination made by an administrative agency, Respondent retains the prerogative to seek this relief from this forum instead. Collazo v. Netherland Prop. Assets LLC, 35 NY3d 987, 990 (2020). Given the Court's concurrent jurisdiction with DHCR, the Court construes the language affording DHCR the ability to determine its own sampling methods to apply to Housing Court as well. While Housing Court does not have the resources for sampling methodology that an administrative agency would have, Courts have countenanced DHCR's averaging comparable stabilized units in the subject building. See, e.g., Ahmed v. State Div. of Hous. & Community Renewal, 2021 NY Slip Op. 32234(U), 7 (S. Ct. NY Co.)(Edmead, J.), Ouattara v. State of NY Div. of Hous. & Cmty. Renewal, 2022 NY Slip Op. 33660(U), 2 (S. Ct. NY Co.). The building has four other registered apartments, a mix of apartments that are bigger and smaller than the subject premises. The average square footage of the four apartments, two of which are studios, one of which is a two-bedroom apartment, and one of which is a three-bedroom apartment, is 581.75, which is close in size to the subject premises, which is 495 square feet. Given the flexibility with which the regulation seeks to afford a tribunal in determining an appropriate means by which to fix the base rent, 9 N.Y.C.R.R. § 2522.6(b)(3)(iv), the Court will therefore average the rents of the regulated apartments in the building.

Registrations effective April 1, 2023 showed that the registered rents for the four other apartments in the subject building that are Rent-Stabilized were $2,500, $667.17, $1,961.08, and $2,675. The average of these rents is $1,950.81. As this amount is lower than the amount yielded by the rent-setting method provided in 9 N.Y.C.R.R. § 2522.6(b)(3)(ii), the lowest rent prevails. 9 N.Y.C.R.R. § 2522.6(b)(2)(iii). Based on a monthly rent of $1,950.81, Respondent's rent liability for the year term of his lease would have been $23,409.72. Respondent paid a total of $39,832.32 in that time frame. The different that Petitioner collected, $16,422.60, is an overcharge. As Petitioner did not rebut that the collection of the overcharge was willful, Respondent is entitled to treble damages. N.Y.C. Admin. Code § 26-516. Three times $16,422.60 is $48,267.80.

Respondent interposed a counterclaim for breach of the warranty of habitability. The preponderance of the evidence shows that the Fire Department broke down Respondent's door in January of 2024 because of a carbon monoxide detector. The record is not clear as to whether the carbon monoxide detector's battery needed to be changed or whether there was actually a carbon monoxide leak. A tenant seeking a rent abatement bears the burden of proving, inter alia, the condition and dates of the condition. Moskowitz v. Jorden, 27 AD3d 305, 306 (1st Dept.), appeal dismissed, 7 NY3d 783 (2006), 1050 Tenants Corp. v. Lapidus, 16 Misc 3d 70, 72 (App. Term 1st Dept. 2007). Without proof about the actual problem or dates that it took for the door to be repaired after the incident with the Fire Department, the record does not support a rent abatement for that condition.

HPD placed a violation in August of 2023 for a lack of cooking gas. The violation is presumptive proof of the condition, MDL § 328(3), and Petitioner did not rebut the presumption.

The measure of damages for breach of the warranty of habitability is the difference between the rent reserved under the lease and the value of the premises during the period of the breach. Park West Management Corp. v. Mitchell, 47 NY2d 316, 329, cert. denied, 444 U.S. 992 (1979), Elkman v. Southgate Owners Corp., 233 AD2d 104, 105 (1st Dept. 1996). The lack of gas diminished the habitability of the subject premises by 15% from August of 2023 through May of 2024. B-U Realty Corp. v. Kiebert-Boss, 50 Misc 3d 1220(A) (Civ. Ct. NY Co. 2016). Fifteen percent of the legal rent as found above of $1,950.81 for the ten months from August of 2023 through May of 2024 is $2,926.22.

Respondent submitted into evidence proof of a violation for self-closing doors. While this violation is a fire safety hazard, the record is not clear about the effect of the violation on the habitability of the subject premises.

The preponderance of the evidence shows that Petitioner's subdivision of the predecessor apartment into the subject premises and the next-door apartment affected electrical service to the subject premises. Emails in evidence showed Petitioner's awareness of this issue and that there were incidents where Respondent did not have electrical service. The record is inadequate, however, to assign dates to the lack of electricity sufficient to inform a determination of a rent abatement.

There was a violation dated November 3, 2023 for a knob in a tub. Respondent testified that the bathtub had to be turned on with an Allen wrench. The record does not show a decrease in the habitability of the subject premises.

Respondent testified that he did not have hot water or had dirty water for thirteen or fourteen days. The Operations Supervisor testified that he did not have notice of this condition. There is no violation for this condition and the emails in evidence do not mention the condition. This record is insufficient to base a rent abatement for this condition.

The same lack of precision about dates also precludes the award of an abatement for issues that the elevator sustained, even though the Operations Supervisor acknowledged them to an extent.

Petitioner did not rebut Respondent's testimony that for the first "few" months of his tenancy, Petitioner did not timely collect garbage in the common areas of the building, nor that Petitioner finally addressed the issue after many complaints. Conditions in the common areas impact the habitability of the subject premises. RPL § 235-b(1). The garbage condition described diminished the habitability of the subject premises by 4%. Four percent of the legal rent for two months is $176.06.

Respondent also interposed a counterclaim for harassment, although Respondent's counsel also stated that Respondent's filing of a plenary action seeking relief on a harassment cause of action in Supreme Court limited Respondent's recovery in this proceeding to December of 2023, when Respondent interposed his pleading. Respondent testified that harassment was a failure to provide essential services, particularly as it concerned gas. The interruption of cooking gas is indeed harassment. Cartagena v. Rhodes 2 LLC, 2020 NY Slip Op. 30290(U)(S. Ct. NY Co.)(Tisch, J.).

Tenants who prove harassment may obtain placement of housing maintenance code violations, an injunction restraining a landlord from engaging in such conduct, civil penalties payable to the New York City Commissioner of Finance not less than $2,000 nor more than $10,000, N.Y.C. Admin. Code § 27-2115(m)(2), compensatory damages, punitive damages, and attorneys' fees. N.Y.C. Admin. Code § 27-2115(o). A proper measure of compensatory damages in a harassment case can be a rent abatement. Guang Y. Leung v. Zi Chang Realty Corp., 2022 NY Slip Op. 50034(U)(App. Term 1st Dept.). As the Court is already awarding Respondent a rent abatement for the lack of gas, the Court will not duplicate that award. The record does not show any other basis for compensatory damages.

Accordingly, it is

ORDERED that the Court awards Respondent a judgment on his rent overcharge counterclaim against Petitioner in the amount of $48,267.80 based on a monthly legal rent of $1,950.81, and it is further

ORDERED that the Court awards Respondent judgment on his breach of warranty of habitability counterclaim against Petitioner in the amount of $3,102.28, and it is further

ORDERED that the Court finds that Petitioner has violated N.Y.C. Admin. Code § 26-2005(d) by engaging in harassment of Respondent through December 12, 2023, and as such the Court directs HPD to place a "C" violation for harassment; the Court enjoins Petitioner from engaging in further acts of harassment against Respondent; and the Court awards civil penalties against Petitioner in the amount of $2,000, and it is further

ORDERED that this order is without prejudice to Respondent's claims in the plenary action he has commenced against Petitioner and Petitioner's defenses thereto.²

This constitutes the decision and order of the Court.

Dated: July 24, 2026

New York, New York

HON. JACK STOLLER

J.H.C.

FOOTNOTES

1.   The amendment to the Rent Stabilization Code came after the C of O issued. However, before the C of O issued, the HSTPA repealed the deregulation provisions of the Rent Stabilization Law upon which 9 N.Y.C.R.R. § 2520.11(r)(12) relied, to wit, N.Y.C. Admin. Code §§ 26-504.1, 26-504.2, and 26-504.3. The Rent Stabilization Code only continues to the extent that it is not inconsistent with the Rent Stabilization Law. N.Y.C. Admin. Code § 26-511(b). The lag in time that it took to amend the Rent Stabilization Code to reflect the statutory repeal of vacancy deregulation therefore does not mean that the new C of O deregulated the subject premises by leading to a rent higher than a defunct threshold.

2.   Respondent counterclaimed for attorneys' fees. To the extent that there may be an appeal of this decision, the Court prefers to wait until the completion of appeals before adjudicating attorneys' fees to avoid duplicative efforts. The Court importunes upon counsel to communicate with one another about steps going forward. If the parties wish to restore this matter for that purpose or other purposes by stipulation, that is fine. If Respondent cannot get an agreement and wishes to restore this matter, he may move for that relief.

Jack Stoller, J.