East Harlem Pilot Block Bldg. IV HDFC Inc. v Diaz

[*1] East Harlem Pilot Block Bldg. IV HDFC Inc. v Diaz 2015 NY Slip Op 50289(U) Decided on March 9, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 9, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570010/15

East Harlem Pilot Block Building IV HDFC Inc., Petitioner-Landlord-Appellant,

against

Anitra Diaz, Respondent-Tenant-Respondent.

Landlord, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Kelly O'Neill Levy, J.), dated April 16, 2014, which granted tenant's cross motion to dismiss that branch of the nonpayment petition seeking a possessory judgment for rent accruing prior to April 16, 2012.

Per Curiam.

Order (Kelly O'Neill Levy, J.), dated April 16, 2014, affirmed, with $10 costs.

The motion court correctly dismissed that branch of the nonpayment petition seeking a possessory judgment for rent arrears accruing prior to April 16, 2012, the date that tenant, as successor to her mother's Section 8 "project-based" tenancy, became a party to a lease agreement with landlord. A nonpayment proceeding can be maintained only to collect rent owed pursuant to an "agreement" between the parties (RPAPL 711[2]), and there was no agreement in effect between these parties until April 16, 2012, the effective date of their written lease agreement (see 615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1 [2006]). Nor is a contrary result warranted by any language in the lease agreement purporting to give the agreement retroactive effect, or by any retroactive annual income certifications signed by tenant. "Because a successor in interest is not a tenant until he becomes a party to a lease or rental agreement . . . and because tenant did not become a party to the lease until after the arrears sought had accrued, a nonpayment proceeding does not lie to recover these arrears" (Strand Hill Assoc. v Gassenbauer, 41 Misc 3d 53, 54-55 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 09, 2015