The 2001 lease in this instance has the same effect of the invalid lease in Harel as it
allowed the landlord to negotiate a fictitious $2000 "legal rent" with the tenant and deregulate
the premises even though the $2000 figure number was [*5]completely unsupported.[FN7] However, what makes this situation more
offensive than Harel, is that there is no indication of how this arrangement was to the
benefit of the 2001 leaseholder — a scenario that implies a nefarious scheme to distort the
regulatory status of the premises to hide it from future tenants.
Petitioner's second argument — that even if the apartment was wrongfully
deregulated in 2001, it is too late to challenge — is equally unavailing. Petitioner
contends that the RSC provision which states that "no determination of an overcharge and no
award or calculation of an award of the amount of an overcharge may be based upon an
overcharge having occurred more than four years before the complaint is filed" somehow
prohibits the court from examining the rent regulatory status beyond the four year term (RSC
§ 2526.1 [a][2]; see also CPLR 231-a). However, this argument is contrary to the
express language of RSC § 2526.1 (a)(2)(ii) which states that "nothing contained herein
shall limit a determination as to whether a housing accommodation is subject to the RSL and this
Code." Furthermore, this argument is flawed as this proceeding is about possession, making any
claim of rent overcharge only ancillary (cf. Bedford Apts. Co. v Lewison, 4 Misc 3d 139[A] [App Term 1st
Dept 2004] [Statutes that preclude examination of rental history beyond four years address an
"action" or "complaint" for rent overcharge, not a possessory proceeding for eviction]). Thus, the