Appeal from an order of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, Jr., J.), entered February 14, 2011.
Hatim Group, LLC v Johnson
Decided on August 7, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The order, insofar as appealed from, granted landlord's motion for summary judgment and upon, in effect, granting the branch of tenant's cross motion seeking leave to reargue her prior motions to dismiss the petition or, in the alternative, for leave to interpose an answer, adhered to the prior determinations. The appeal is deemed to be from a final judgment of the same court entered February 14, 2011 awarding possession to landlord in a holdover summary proceeding (see CPLR 5501 [c]).
ORDERED that the final judgment is reversed, without costs, so much of the order entered February 14, 2011 as granted landlord's motion for summary judgment is vacated, and landlord's motion for summary judgment is denied.
In this holdover proceeding, landlord alleges that it terminated tenant's rent-stabilized renewal lease by service of a 10-day notice to cure and a notice of termination based on an informal hearing decision of the New York City Department of Housing Preservation and Development finding that tenant, who held a Section 8 voucher, had an unreported member of the household for at least four years. After two motions by tenant seeking, among other things, to dismiss the petition, based, in part, on landlord's failure to cite a lease provision that tenant had allegedly violated, had been denied, the Civil Court, by order entered February 14, 2011, granted a motion by landlord for summary judgment, in effect granted the branch of a cross motion by tenant seeking leave to reargue her prior motions, and adhered to the prior determinations. A final judgment was entered pursuant to the order entered February 14, 2011, awarding possession to landlord.
In our view, the final judgment must be reversed and so much of the order as granted landlord's motion for summary judgment vacated. A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212 [b]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by presenting evidence, in admissible form, demonstrating the absence of any material issues of fact (see e.g. Alvarez v Prospect Hosp.,68 NY2d 320, 324 ; Zuckerman v City of New York, 49 NY2d 557, 562 ).
Here, landlord's submissions fall short of establishing, prima facie, its entitlement to judgment as a matter of law. In moving for summary judgment, landlord failed to submit an affidavit based upon personal knowledge and, instead, submitted an affirmation from its attorney. Although the attorney's affirmation indicates that tenant's Section 8 subsidy had been terminated and that landlord's acceptance of Section 8 benefits was a condition of the lease, landlord did not produce the lease. Absent evidentiary proof that such a condition existed in the lease, landlord cannot maintain this holdover proceeding based on its termination of the lease (see Perrotta v Western Regional Off-Track Betting Corp., 98 AD2d 1 ; Baumeister v Casieri, 32 Misc 2d 654 [App Term, 1st Dept 1961]; 89-09 Sutphin Corp. v Scarinzi, 187 Misc 536 [App Term, 2d Dept 1946]; see also Dass-Gonzalez v Peterson, 258 AD2d 298 ). Moreover, landlord failed to demonstrate, with admissible proof, that termination of the subsidy itself justifies termination of the tenancy, regardless of the terms of the lease. To the extent landlord sought to remedy the deficiencies in its moving papers by submitting, in reply, an affidavit based upon personal knowledge, such submissions are not entitled to consideration (see Canter v East Nassau Med. Group, 270 AD2d 381 ). " [T]he function of a reply affidavit is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion'" (Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624, 625 , quoting Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 ). We leave undisturbed so much of the Civil Court's February 14, 2011 order as, upon, in effect, granting the branch of tenant's cross motion seeking leave to reargue her prior motions, adhered to the prior determinations, as we perceive no error of law or abuse of discretion therein.
Weston and Rios, JJ., concur.
Pesce, P.J., concurs in part and dissents in part in a separate memorandum.
Pesce, P.J., concurs in part and dissents in part and votes to reverse the final judgment, vacate so much of the order entered February 14, 2011 as granted landlord's motion for summary judgment and upon, in effect, granting the branch of tenant's cross motion seeking leave to reargue her prior motions to dismiss the petition or, in the alternative, for leave to interpose an answer, adhered to the prior determinations, deny ...