Solow Management Corp. v. Bachko

Per Curiam.

The base period for the computation of the permissible specified percentage increases provided for by the New York City Rent Stabilization Law of 1969 (Administrative Code of City of New York, § YY 51-1.0 et seq.) and the Code of the Real Estate Industry Stabilization Association of New York City, Inc., is May 31, 1968. Section 66 of the code provides: “ For the purpose of establishing the rent charged on May 31, 1968 where the dwelling unit was vacant on such date and no rent was then being charged, the owner shall use the first rent charged subsequent to said date ’ ’. Rent is defined in section 2, subdivision (j), of the code as “ Any consideration demanded or received ”.

Here, though the former tenant had moved out of the apartment about May 23, 1968, rent had been charged for May 31, 1968 as part of the May 1968 rent for which landlord had entered judgment against him. The fact that such vacancy during the month of May, 1968 was caused by summary proceedings is irrelevant, since the agreement controlling the consideration demanded for that apartment for May, 1968, inclusive of May 31, 1968, provided for payment thereof on the first day of May, 1968. Thus the rent charged on May 31, 1968 was the amount therein provided, for which landlord, in fact, entered judgment.

Tenant is accordingly entitled, pursuant to the order of this court dated May 28,1970, to recover the overpayment consisting of the difference between the permissible increased rent on the basis of the May 31, 1968 rent and the rent paid on the basis of the first rent charged subsequent to said date.

Final judgment should be reversed, with $30 costs, petition dismissed, and judgment directed in favor of tenant for the sum of $1,787.55.