Papers considered in the review of the motion:(1) petitioner’s order to show cause(2) the court file.DECISION/ORDER After a trial petitioner moves to discontinue this nonpayment proceeding without prejudice. The motion is denied and the court grants respondent a judgment dismissing this proceeding. This summary proceeding, first returnable on November 30, 2015, was adjourned nearly 20 times, i.e., to February 10, 2016, March 16, 2016, April 27, 2016, June 15, 2016, July 20, 2016, September 14, 2016, October 14, 2016, November 28, 2016, January 18, 2017, February 27, 2017, April 5, 2017, April 28, 2017, and then to June 15, 2017 when it was sent out for trial; the proceeding was not reached that day for trial and it was adjourned to July 28, 2017, August 9, 2017, September 15, 2017, November 14, 2017, November 20, 2017, and then to January 30, 2018. The trial was held that day and the court granted the parties until March 5, 2018 to submit post-trial memoranda.Now, by an order to show cause sought on March 2, 2018 and made returnable on March 5, 2018 petitioner moves for leave to discontinue the proceeding without prejudice. Petitioner seeks this relief for the stated reason that it believed in reasonable good faith that respondent would accept petitioner’s proposed post-trial settlement proposal but which respondent in fact rejected. Petitioner also argues that respondent would not be prejudiced by such a discontinuance; respondent denies the same.The motion is addressed to the court’s discretion. CPLR 3217(b). Petitioner does not offer to compensate respondent for the time and effort that he expended defending this proceeding. Petitioner also ignores the issue of waste of judicial resources. The motion is denied.Now, after considering the testimony and the other evidence at the trial herein, the court makes the following findings of fact, reaches the following conclusions of law, and grants respondent a judgment dismissing the proceeding.The petition alleges that petitioner is the prime tenant of the premises, that respondent is the subtenant “under a written rental agreement,” that respondent beginning in April 2014 respondent failed to pay rent, and that the rent arrears accrued through October, 2015 total $14,042.80.Respondent interposed a form pro se answer dated November 18, 2015 in which he asserts two defenses. One is a general denial and the other is an allegation that some of the rent claimed by petitioner has been paid. Four months later, in February, 2016, respondent appeared by counsel.At trial, to demonstrate the alleged relationship of landlord and tenant, petitioner offered two written agreements that the parties had signed. One is dated April 16, 2014 and the other is dated January 8, 2015. Except for the periods of time that the agreements encompass, they are substantially the same.Each agreement characterizes itself as a “Residency Agreement.” The agreement calls for monthly payments but it does not characterize them as rent; at no place in the agreement is either party identified as a landlord or as a tenant.Section 1.1 of the agreement provides: “SUS [Services for the Underserved, Inc.] provides residential and other community-based services that assist individuals to obtain their highest level of independent functioning through a process of collaboration between the individual, his/her family, and the program staff of SUS.” Section 1.4 provides: “The Resident acknowledges that he or she received a written description of: the services that would be provided by SUS; and the fees that the Resident would be required to pay to remain a Resident in the Program.”Section 2.2(a) provides: “You have the right to have a Rehabilitation Assistant or Case Manager assigned by SUS to work with You to develop and implement an individualized written service plan (‘Your Service Plan’).” Section 2.3(a) provides: “You have the right to receive rehabilitative services from SUS that have a rehabilitative focus, are based upon psychiatric rehabilitation principles of participation and choice, and are culturally relevant to You.” Section 2.4(a) provides: “You have the right to participate in matters that affect the operation of the Residence, through a mechanism by which all other Residents can likewise participate(for example, though a Residents’ Council, if one is formed at Your Residence, or by participating in the development of Residents Expectation and Responsibilities for Your residence).”Section 3 provides: “Your rights as a Resident in SUS Residential Program are expressly subject to Your complying with all of the responsibilities that are set forth in this Section 3.” Section 3.6 provides “(a) You agree to use your best efforts to participate fully in the rehabilitative services as provided in Your Individualized Written Service Plan” and “(c) You agree to attend a day activity that is consistent with the rehabilitation goals in Your Individualized Written Service Plan.”Section 5.1 it provides “Your monthly Residency Fee is used to provide you with personal living space, limited furnishings, utilities, limited transportation and recreation, meals and support services as prescribed by regulations governing the type of housing program in which you reside.”The agreements between the parties, the court holds, are not leases or rental agreements. The payments due thereunder are not rent, but instead are for a package of services. The agreement does designate a specific unit for respondent’s occupancy, but respondent’s right to occupy is so intertwined with the other parts of the agreement that it cannot be disentangled and treated as a stand-alone. Cf, Federation of Organizations, Inc. v. Bauer, 6 Misc 3d 10, 12 (App Term, 2nd & 11th Jud Dists, 2005) (“Moreover, the admission agreement indicated that the appellant’s residence in petitioner’s premises was part of a package of services provided to appellant, among others, and such services were not merely incidental to appellant’s residence at the premises. In light of the foregoing, it is apparent to us that appellant was a licensee rather than a tenant [citation omitted].”The court notes as well that respondent’s right to occupy the premises is circumscribed in ways that residential tenancies typically are not, e.g., section 2.5 prohibits roommates and section 3.2(d) prohibits “using alcohol.” See also, Andrews v. Acacia Network, 2018 NY Slip Op 28026 (App Term, 2nd & 11th Jud Dists, 2018) where the court held that occupants of what have come to be known as three-quarter houses are not tenants but licensees.Accordingly, the court holds that respondent is not a tenant, that he does not owe rent, and that this nonpayment proceeding will not lie. In light of this result, the court declines to address the parties’ other arguments.The court will mail to the parties copies of this decision and order along with their exhibits.Dated: Brooklyn, NYMarch 16, 2018
