BPIII-548-West 164th St. LLC v Garcia

[*1] BPIII-548-West 164th St. LLC v Garcia 2010 NY Slip Op 51547(U) [28 Misc 3d 140(A)] Decided on September 1, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 1, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, J.
570479/09

BPIII-548-West 164th Street LLC, Petitioner-Landlord-Appellant,

against

Jose Garcia, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Marcia J. Sikowitz, J.), entered December 30, 2008, which granted tenant's motion for summary judgment dismissing the petition in a nonpayment summary proceeding.

Per Curiam.

Order (Marcia J. Sikowitz, J.), entered December 30, 2008, reversed, without costs, tenant's motion denied and petition reinstated.

The record establishes that the monthly amount ($358) specified as the "tenant's share of rent" in the elderly tenant's initial, March 2003 lease agreement for the subject stabilized apartment represented the maximum permissible rent then payable by tenant under the Senior Citizen Rent Increase Exemption program (SCRIE), and not, as landlord argues, a preferential rent terminable upon a lease renewal at the landlord's election. This conclusion is supported by the language in the initial lease ("Tenant is senior citizen [and] has rent abatement"), the absence of a lease rider fixing the amount of a preferential rent as required by the express lease terms in the event "a preferential rent is being charged," and various DHCR and Department for the Aging documents confirming tenant's continued eligibility for SCRIE benefits.

However, contrary to tenant's assertion, nothing in the initial lease agreement, either expressly or by implication, supports a finding that the maximum permissible SCRIE rent was intended to be capped at $358 for the duration of the tenancy. In this connection, the lease by its terms merely set forth the legal regulated rent ($603.92 per month) and the "tenant's share" of the rent ($358 per month), without addressing in any fashion tenant's rental obligations for subsequent renewal periods. Tenant's vaguely-stated claim that he relied on oral representations allegedly made by the predecessor landlord that the rent would "remain unchanged" is barred by the lease merger clause (see Sioris v 25 W. 43rd St. Co., 223 AD2d 475 [1996]). Summary judgment dismissal was thus unwarranted, since the governing lease terms provide no legal impediment to petitioner's rent claim insofar as it seeks to collect the maximum permissible rent payable by tenant under the SCRIE program, an amount shown in the record to be $573.63 per month as of March 2007.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 01, 2010