Appeals by tenant (1) from so much of a final judgment of the Civil Court, Queens County (J. Grayshaw, J.), entered December 24, 1997, awarding landlord a possessory final judgment and affording tenant a 10-day cure period in which to cure her default as required tenant to sign a retroactive lease in order to cure her default, (2) on the ground of inadequacy, from so much of a decision of said court, dated May 20, 1998, as awarded tenant rent overcharge penalties only for the months of April through August 1993, and (3) on the ground of inadequacy, from so much of a decision of said court, dated June 8, 1998, as awarded tenant the sum of $600 for punitive damages. The appeals from the two decisions are deemed appeals from the amended final judgment of said court entered June 8, 1998, awarding landlord possession and the sum of $18,741.75.

Final judgment entered December 24, 1997 insofar as appealed from unanimously affirmed without costs.

Amended final judgment entered June 8, 1998 unanimously modified by reducing the award to landlord to the sum of $17,277.00; as so modified, affirmed with $25 costs to tenant.

Inasmuch as the provision in the original final judgment requiring tenant to sign the retroactive renewal lease as a cure pursuant to RPAPL 753 (4) was complied with, albeit under protest, prior to the entry of the amended final judgment and does not appear in the latter, that portion of the original final judgment that contained the direction was not superseded by the amended final judgment and remains separately appealable.

Inasmuch as tenant has limited her appeal from the original final judgment to the issue of the court's requiring her to sign the retroactive renewal lease and, pursuant to a stipulation entered into between the parties, this court was not provided with the minutes of the trial [*2]underlying that final judgment, this court is without jurisdiction to review the correctness of the Housing Court's determination that tenant was timely offered the renewal lease in 1993 and refused to sign it (Ferguson v Bruckman, 164 NY 481 [1900]). In view of the foregoing, we cannot say that the court's requiring tenant to sign the renewal lease retroactive to when she should have signed it was an improper cure.

The award in favor of tenant of punitive damages in the sum of $600 was improper. The only counterclaim asserted in the answer was for rent overcharge. Punitive damages are not available for this statutory cause of action (Wolfisch v Mailman, 196 AD2d 466, 467 [1993]; cf. Wagoner v Bennet, 815 P 2d 476 [Okla 1991] [where statutory cause of action supplanted common law cause of action and provided for double damages, punitive damages were not available]). To the extent that tenant may be seeking punitive damages on an unpleaded cause of action for harassment, we note that New York does not recognize such a common law cause of action (Broadway Cent. Prop. v 682 Tenant Corp., 298 AD2d 253, 254 [2002]; Goldstein v Tabb, 177 AD2d 470 [1991]; Levine v Costanza, NYLJ, Nov. 1, 1991 [App Term, 1st Dept]) and that the proper remedy for a violation of the Rent Stabilization Code's prohibition of harassment (9 NYCRR 2525.5) is a complaint to DHCR (9 NYCRR 2526.2; see Ugweches v 600 W. 218 St. Assocs., NYLJ, Jan. 23, 2002 [Sup Ct, NY County]; Ansonia Tenants' Coalition v Ansonia Surveillance Agents, NYLJ, Dec. 23, 1998 [Sup Ct, NY County]). Accordingly, we reject tenant's contention that the award of punitive damages was inadequate. However, we do not strike the award because landlord has not cross-appealed therefrom.

Tenant's contention that CPLR 213-a does not apply to bar her recovery of excess rents collected more than four years before her claim was interposed, because the excess rents were collected in violation of a DHCR rent-freeze order which remained outstanding, is without merit (Crimmins v Handler & Co., 249 AD2d 89 [19981; see also Highlawn Assocs. v Division of Hous. and Community Renewal, 309 AD2d 750 [2003]). However, inasmuch as it was stipulated at trial that the correct rent was $411 within the four-year period and that landlord accepted earmarked rent checks for three months in 1995 in the sum of $573.75, within that period, tenant is entitled to collect overcharge penalties for the excess rents collected in those three months. Contrary to the Housing Court's reasoning, the fact that when landlord accepted tenant's checks in 1995 there was a balance owed to landlord (because landlord had wrongly refused to cash tenant's previous months' rent checks) does not vitiate the overcharge because landlord was required to apply the checks that it accepted to the months for which they were earmarked (L & T E. 22 Realty Co, v Earle, 192 Misc 2d 75 [20021; Kew Realty Co. v Charles, NYLJ, June 3, 1998 [App Term, 2d & 11th Jud Dists]). Accordingly, the award of overcharge penalties is increased by $1,464.75, representing an overcharge of $162.75 per month for three months, or $488.25, trebled, and the award to landlord is reduced by the same amount.
Decision Date: March 04, 2004