Agreement to Be Nonprimary Resident Was Void

Facts: After rent-controlled tenant vacated in 1991, landlord rented the apartment to new tenant with an unregulated lease agreement stating that tenant didn't use apartment as his primary residence. Tenant paid $1,600 per month in rent and $30,000 in key money. Tenant agreed to permit landlord to enter a judgment in court determining that the apartment was exempt from rent stabilization. In 2001, landlord reopened the 1991 court judgment. Both sides admitted that tenant did in fact live in the apartment as his primary residence. Landlord sought a declaration of the legal rent. The court vacated the consent judgment but found that the DHCR could rule on the legal rent. Tenant then sued landlord, seeking a determination that he was rent stabilized. Tenant also claimed that landlord had collected a rent overcharge. The court ruled for tenant, and landlord appealed. Landlord claimed that the court incorrectly applied a default formula to tenant's rent overcharge claim. Court: Landlord loses. Tenant's agreement to be a nonprimary resident was void. The apartment was rent stabilized. By the time tenant claimed the overcharge, more than four years had passed since he moved in, so tenant's complaint couldn't be treated as a fair market rent appeal. The rent overcharge default formula for apartments not registered on the base date should be applied. The legal rent would be based on the lowest rent charged for a rent-stabilized apartment with the same number of rooms in the same building on the base date.

Levinson v. 390 West End Assocs.: NYLJ, 10/27/05, p. 24, col. 4 (App. Div. 1 Dept.; Friedman, JP, Sullivan, Gonzalez, Sweeny, Catterson, JJ)