In this non-payment proceeding, Petitioner York 80 LLC, seeks various major capital improvement ("MCI") charges, retroactive maximum base rent ("MBR") payments, fuel charges and rent from Pauline Gunsalus ("respondent").^[FN1] Respondent, who has resided in the subject rent controlled premises for over 50 years, now seeks summary judgment dismissal of the proceeding on the ground that the petition seeks rent in excess of what is permissibly collectable from her under the Senior Citizen Rent Increase Exemption ("SCRIE") program. In the alternative, respondent asks that the court either dismiss or sever the arrears that are attributable to SCRIE. Petitioner opposes the motion.

Respondent is a beneficiary of SCRIE. It is undisputed that during the relevant time frame, she had a valid SCRIE "RENEWAL APPROVAL ORDER" which set her share of the rent at $682.27 (see Dept of the Aging SCRIE Program Docket: 2005-867329 [2/17/2006]). The order further indicates that her legal rent during this time frame ^[FN2] was $844.27 leaving a $162 monthly exemption (id.). The order provides for a mechanism for modification of the calculations for changes in the MBR and for fuel cost increases as well as a procedure for any aggrieved party to [*2]appeal its terms. There is no indication that petitioner ever challenged the SCRIE order or that a modification was sought. Nor does petitioner dispute that respondent has in fact paid $682.27 to petitioner each month since the SCRIE order went into effect.

The SCRIE program places various obligations on landlords to provide the tenant with certain documents and to collect only the appropriate rent each month (see 9 NYCRR § 2202.20). Furthermore, the landlord is required, inter alia, to keep "the SCRIE Office abreast of rent increases" (New York City Department for the Aging, "SCRIE Made Easy: What Role Do I Play?" http://www.nyc.gov/html/dfta/html/scrie/landlord_whatrole.shtml [accessed May 3, 2009]). In fact, the SCRIE website indicates that landlord's are forbidden from seeking to collect any amounts in excess of the authorized rent (see id. ["Important note: It is unlawful to collect, or attempt to collect, from the tenant any payment that is more than the SCRIE authorized rent while a valid Approval Order is in effect"]). The above guidelines are supported by the New York City Rent Control Laws which provide that "[n]o increase in maximum rent . . . shall be collectible from a tenant to whom there has been granted a rent increase exemption order, pursuant to this section, which became effective prior to the effective date of such increase, except as provided in such exemption order or as modified by subsequent exemption order" (9 NYCRR § 2202.20[a]; see also 9 NYCRR § 2202.20[e]).

The effect of the SCRIE program is thus to freeze the senior citizen's rent as long as a valid SCRIE order is in effect (cf. Ironton Realty Co. v Lagrule, NYLJ , May 15, 1991, at 22, col 6 [Civ Ct, NY County] [absent a specified statutory exemption, landlord may not seek rent increases from a tenant who is the beneficiary of a valid SCRIE order]). By exempting the tenant from such increases, the SCRIE program effectuate's its goal of protecting low income senior citizens from the burden and risks associated with increasing housing costs (see Matter of Coccaro v Stupp, 166 Misc 2d 948, 949-50 [Sup Ct, NY County 1995]). Furthermore, implicit in this structure is the program's recognition that a landlord will generally be better suited to bear the onus of addressing issues that arise when it believes it is entitled to increases beyond the authorized rent (see 1840 Realty v Shuven, NYLJ, August 12, 1992, at 25, col 2 [Civ Ct, Kings County] ["it appears that the program is structured so that a larger element of responsibility is entrusted to the landlord who would be in a better position to exercise business judgment than a senior citizen subsisting largely on a small fixed income"]; 2701 Grand Assn. LLC v Khaitsa, NYLJ, April 29, 2009, at 28, col 3 [Civ Ct, Bronx County] [tenant not responsible for arrears accrued due to landlord's misapplication of SCRIE credit]).

As respondent here has paid her share of the rent under the SCRIE order in effect during the relevant time, summary judgment dismissal of the petition must be granted. The rent sought in the petition is well in excess of what petitioner may collect from respondent pursuant to her SCRIE order. To the extent that petitioner may be entitled to the purported arrears from SCRIE, those claims are severed and may be raised in a plenary action where said contention may properly be addressed without the inequitable threat of eviction hovering over respondent (cf. Hoxha Assoc. v Cannata, NYLJ, Nov. 13, 1996, at 28, col 5 [Civ Ct, Bronx County]["It would be inequitable to subject a senior citizen tenant to eviction for arrears when she was unaware that they were due and owing and did not have the opportunity to budget her income to provide for the increased rent and now faces a judgment for the arrears"]).

Accordingly, respondent's motion is granted and the petition is dismissed.

[*3]This constitutes the decision and order of this court.

Dated: May 4, 2009__________________________

New York, New YorkDAVID J. KAPLAN, J.H.C.

Attorney for Petitioner

Neil Sonnenfeldt, Esq.

Gutman Mintz Baker & Sonnenfeldt, P.C.

813 Jericho Turnpike

New Hyde Park, New York 11040

(516) 775-7007

Attorney for Respondent

Jason Blumberg, Esq.

MFY Legal Services, Inc.

299 Broadway, 4th Floor

New York, New York 10007

(212) 417-3711