Pinnacle Bronx W., LLC v Jennings

Pinnacle Bronx W., LLC v Jennings 2010 NY Slip Op 20374 [29 Misc 3d 61] Accepted for Miscellaneous Reports Publication AT1 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 1, 2010

[*1] Pinnacle Bronx West, LLC, Appellant,
v
Carlton Jennings, Respondent.

Supreme Court, Appellate Term, First Department, September 16, 2010

APPEARANCES OF COUNSEL

Horing, Welikson & Rosen, P.C., Williston Park, for appellant. Edward Kravitz, Brooklyn, for respondent.

{**29 Misc 3d at 62} OPINION OF THE COURT

Per Curiam.

Order, insofar as appealed from, affirmed, without costs.

The landlord's prior acceptance of a Section 8 rent subsidy constituted a"term and condition" of the tenant's expired stabilized lease agreement (see Rent Stabilization Code [9 NYCRR] § 2522.5 [g] [1]), so that the tenant's 2007"deemed" lease renewal was required to continue with that term and condition (see Rosario v Diagonal Realty, LLC, 8 NY3d 755 [2007]). "Absent a showing by landlord of a new agreement . . . a Section 8 tenant does not become liable for the Section 8 share of the rent as 'rent' even after the termination of the subsidy" (Prospect Place HDFC v Gaildon, 6 Misc 3d 135[A], 2005 NY Slip Op 50232[U], *2 [2005], quoting Rainbow Assocs. v Culkin, 2003 NY Slip Op 50771[U], *2 [2003]; see also W & L Assoc., LLC v Gurevich, 16 Misc 3d 129[A], 2007 NY Slip Op 51289[U] [2007]). Landlord's contrary argument notwithstanding, a renewal lease purporting to obligate a former Section 8 tenant to pay the full lease rent cannot be considered such a "new agreement" sufficient to change or modify the terms and conditions of an expired stabilized lease (see 835-37 Trinity Ave. HDFC v Royal, 26 Misc 3d 1240[A], 2010 NY Slip Op 50481[U] [2010]). Thus, the court properly dismissed so much of the nonpayment petition as sought recovery of claimed arrears in excess of the tenant's share of the rent. In affirming the partial dismissal of the petition, we note that among the potential remedies available to landlord is the commencement of a holdover summary proceeding based upon an alleged breach of lease{**29 Misc 3d at 63} stemming from tenant's failure to recertify for Section 8 eligibility.

McKeon, P.J., Shulman and Hunter, Jr., JJ., concur.