Underhill Ave. Realty, LLC v Ramos

[*1] Underhill Ave. Realty, LLC v Ramos 2015 NY Slip Op 51804(U) Decided on December 8, 2015 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2014-1789 K C

Underhill Avenue Realty, LLC, Appellant,

against

Ileana Ramos, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lydia C. Lai, J.), dated May 15, 2015. The order granted tenant's motion for summary judgment dismissing the petition in a nonpayment summary proceeding, without prejudice to landlord's commencement of a plenary action for the recovery of use and occupancy.

ORDERED that the order is affirmed, without costs.

In May 2013, landlord commenced this nonpayment proceeding to recover arrears for the period from April 2010 through May 2013. In support of her motion for summary judgment dismissing the petition, tenant established that she had received a section 8 subsidy for her rent-stabilized apartment, that the rent-stabilized lease that tenant had entered into with landlord's predecessor-in-interest had expired on July 31, 2009, and that no rent had been paid thereafter. It is uncontroverted that there was no lease agreement in effect between the parties when landlord commenced this proceeding. Tenant argued that a nonpayment proceeding cannot be maintained for arrears which accrued when there was no lease agreement between the parties. Landlord opposed the motion, arguing, among other things, that tenant's re-certifications for her section 8 subsidy evidenced her agreement to pay rent upon the expiration of the lease.

It is elementary that a nonpayment proceeding must be predicated on an agreement to pay rent (see Matter of Jaroslow, 23 NY2d 991, 993 [1969]; Strand Hill Assoc. v Gassenbauer, 41 Misc 3d 53 [App Term, 2d, 11th & 13th Jud Dists 2013]; 265 Realty, LLC v Trec, 39 Misc 3d 150[A], 2013 NY Slip Op 50974[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; 615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2006]; Licht v Moses, 11 Misc 3d 76 [App Term, 2d & 11th Jud Dists 2006]). Inasmuch as it is uncontroverted that no rental agreement was in effect between the parties during the period in question because landlord's predecessor had refused to issue a renewal lease to tenant, the Civil Court properly dismissed the petition without prejudice to landlord's commencement, if landlord be so advised, of a plenary action for the recovery of use and occupancy for the period in question.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: December 08, 2015