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33 FIFTH AVENUE OWNERS CORP., pet-lnd-app v. 33 FIFTH ENDO, LLC, res-tnt-res -and- “JOHN DOE,” res

570013/15. 33 FIFTH AVENUE OWNERS CORP., pet-lnd-app v. 33 FIFTH ENDO, LLC, res-tnt-res -and- "JOHN DOE," res — Order (James E. d'Auguste, J.), entered August 7, 2013, affirmed, with $10 costs.

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570013/15. 33 FIFTH AVENUE OWNERS CORP., pet-lnd-app v. 33 FIFTH ENDO, LLC, res-tnt-res -and- “JOHN DOE,” res — Order (James E. d’Auguste, J.), entered August 7, 2013, affirmed, with $10 costs.

We sustain the grant of tenant’s motion for summary judgment dismissing the nonpayment proceeding. In the absence of a provision in the parties’ proprietary lease agreement expressly making the sublet surcharge at issue herein a part of the “rent” of the premises, such surcharge may not be treated as rent for purposes of maintaining a nonpayment proceeding pursuant to RPAPL 711(2) (see Dayton Towers Corp. v. Gethers, 24 AD3d 663 [2005]; Matter of Bedford Gardens Co. v. Silberstein, 269 AD2d 445 [2000]; Matter of Petrakakis v. Crown Hotels, 3 AD2d 635 [1956]). In any event, were we to reach the merits, we would conclude, as did the motion court, that paragraph 15 of the proprietary lease, as amended, only authorizes landlord to collect one 25 percent monthly sublet surcharge per apartment at any one time; it does not authorize a 25 percent surcharge for each sublease of the apartment at any given time.

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