Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion.Papers/NumberedNotice of Motion and Supplemental Affirmation and Affidavit Annexed 1, 2, 3Notice of Cross Motion and Supplemental Affidavits and Affirmation Annexed 4, 5, 6Affirmation and Affidavit in Opposition and Reply 7, 8Reply Affidavit 9
*1 Upon the foregoing cited papers, the Decision and Order on this Motion are as follows. DD 11th Avenue LLC, the petitioner in this proceeding (“Petitioner”), commenced this holdover proceeding against David Sans (“Respondent”), a respondent in this proceeding, and Catherine Berge (“Co-Respondent”), another respondent in this proceeding (collectively, “Respondents”), seeking possession of 312 11th Avenue, No.9L, New York, New York (“the subject premises”), on the ground that Respondent committed fraud in reporting his income and household composition to Petitioner and that Co-Respondent’s occupancy is derivative of Respondent’s. Respondent interposed an answer with a general denial. Co-Respondent has not answered or appeared. Respondent now moves for leave to obtain discovery. Petitioner crossmoves for summary judgment in its favor. The Court consolidates both motions for resolution herein.As a summary judgment motion would stay discovery, CPLR §3414(b), Rinaldi v. Viking Penguin, Inc., 52 NY2d 422, 431 n.3 (1981), Jeffers v. American Univ. of Antigua, 125 AD3d 440, 442 (1st Dept. 2015), the Court first considers Petitioner’s cross-motion for summary judgment. Petitioner shows on the record on this motion practice that it is the proper party to commence this proceeding; that the subject premises is subject both to the Rent Stabilization Law and to regulations pursuant to tax credits that require tenants to report their incomes and household compositions, including tax credits pursuant to 26 U.S.C. §42 and RPTL §421-a;1 that the parties are in a landlord/tenant relationship with one another pursuant to a lease; and that Petitioner effectuated timely service of a termination notice prior to the commencement of this proceeding. Petitioner also shows by a rider annexed to Respondent’s initial lease that, at the time Respondent first moved into the subject premises in May of 2012, Respondent’s eligibility to live in the subject premises relied upon his income falling below a certain level.2 Respondent’s lease also provides that misrepresenting income or household composition is a ground for termination.
