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Pinnacle Bronx West, LLC v. Jennings

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


September 16, 2010

PINNACLE BRONX WEST, LLC, PETITIONER-LANDLORD-APPELLANT,
v.
CARLTON JENNINGS, RESPONDENT-TENANT-RESPONDENT.

Landlord, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Paul L. Alpert, J.), dated November 6, 2008, which granted in part tenant's motion for summary judgment dismissing the petition in a nonpayment summary proceeding.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

PRESENT: McKeon, P. J., Shulman, Hunter, Jr., JJ.

Order (Paul L. Alpert, J.), dated November 6, 2008, 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][2005], quoting Rainbow Assoc. v Culkin, 2003 NY Slip Op 50771[U][2003]; see also W & L Assoc. 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 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 stemming from tenant's failure to recertify for Section 8 eligibility.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur

20100916

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