Recitation, pursuant to CPLR §2219(a), of the papers considered in the review of Respondent Callie Huff’s motion for summary judgment pursuant to CPLR §3211.Papers NumberedNotice of motion and affidavits annexed 1Order to Show Cause and affidavits annexedAnswering Affidavit 2Replying affidavits 3ExhibitsStipulationsOtherDECISION/ORDER On March 27, 2017, petitioner-landlord Central Harlem MHA HDFC commenced this non-payment summary proceeding alleging that the respondent-tenant Callie Huff, who resides in the rent-stabilized premises located at 234 Bradhurst Avenue, Apt. 2 New York, NY 10039, has failed to pay $2490.12 in rental arrears based upon a rental agreement between the parties in which respondent-tenant agreed to pay $1197.60 in rent per month. Respondent interposed a verified answer on June 14, 2017. Respondent now moves this court for summary judgment alleging that as there is no current lease between the parties, this nonpayment proceeding must be dismissed, with prejudice. Petitioner submitted written opposition stating that they have the right to end a preferential rent concession and are therefore entitled to collect the legal regulated rent.The Law and its ApplicationSummary judgment is appropriate when no triable issue of material fact exists. (Zuckerman v. City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980].) In reviewing a motion for summary judgment, the court views the evidence in the light most favorable to the party opposing the motion. (Ashland Mgt. Inc. v. Altair Invs. NA, LLC, 59 A.D.3d 97, 98, 869 N.Y.S.2d 465 [1st Dept 2008].) The moving party has the initial burden to come forward with proof to enable the court to determine that the party is entitled to judgment as a matter of law. (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985].) The burden then “shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986].) Proof that consists of “mere conclusions, expressions of hope or unsubstantiated allegations or assertions [is] insufficient.” (Zuckerman, 49 NY2d at 562.) What a party does not deny a party admits. (Tortorello v. Carlin, 260 AD2d 201 [1st Dept 1999].)Pursuant to RPAPL §711(2), a proceeding for nonpayment of rent may be brought when “the tenant has defaulted in the payment of rent, pursuant to an agreement under which the premises are held.” [W]here a tenant whose term is longer than one month holds over after the expiration of such term, such holding over shall not give to the landlord the option to hold the tenant for a new term solely by virtue of the tenant’s holding over.” Instead, a landlord facing a holdover tenant can either commence a proceeding to remove the tenant or accept rent for any period after the expiration of the lease, thereby creating a month-to-month tenancy “unless an agreement either express or implied is made providing otherwise.” (Samson Mgt., LLC v. Hubert, 92 AD3d 932, 933 [2d Dept 2012] citing Real Property Law §232-c) “In the absence of proof of an agreement, deemed or actual, by tenants to pay a higher rent, it must be held that the landlord’s continued acceptance of tenants’ rent payments after the…expiration of the lease, continued the tenancy at the rental set forth in the expired lease. (Fishbein v. Mackay, 36 Misc 3d 1228A, 2012 NY Slip Op 51529[U], [Civ Ct, New York County 2012]) (see also Sacchetti v. Rogers, 12 Misc 3d 131[A], 2006 NY Slip Op 51114[U] [App Term 2006] and (Samson Mgt., LLC v. Hubert, 92 AD3d 932 [2d Dept 2012])Here, respondent submits a copy of her rent stabilized lease for the term from 1/1/2015 to 12/31/2016. This lease also states that the legal regulated rent would be $1197.60 per month for that time period, however, respondent was also given a preferential rent of $367.56 per month. Respondent acknowledges receipt of a lease renewal offer at the legal regulated rent which would have commenced on January 1, 2017, however she maintains she did not sign it. Respondent also submits proof, in the form of receipts from petitioner, that she made the following payments to petitioner, all of which were prior to the date of the rent demand: $367.56 on January 4, 2017, $367.56 on February 1, 2017, and $357.56 on March 1, 2017. In opposition, petitioner does not dispute these facts, but argues that it has the unilateral right to terminate the preferential rent at the expiration of the lease and to seek the full legal regulated rent from respondent. This argument is not relevant to the issue here, however, as respondent does not allege that petitioner is not within their right to end a preferential rent concession. The court notes that in the affidavit in opposition to the motion, an agent for petitioner admits that the prior lease has expired, stating “Respondent[']s preferential lease contained a beginning and an end date which has since lapsed. Further, petitioner now seeks the legal regulated monthly rent of $1197.60.”Here, the court finds that while petitioner offered a renewal lease at the legal regulated rent to the respondent, respondent did not sign that renewal. Subsequently, respondent continued to tender, each month, the prior rental amount to petitioner, which continued to be accepted. As a result, the petitioner may not maintain a nonpayment summary proceeding predicated upon arrears accruing at the legal regulated rent when there is no agreement for payment of that amount, and when the landlord continued to accept payments at the prior rental rate. Therefore, respondent’s motion is granted solely to the extent that the petition is dismissed, though this is without prejudice to petitioner’s right to seek appropriate relief for respondent’s failure to sign a rent stabilized renewal lease, if appropriate.ConclusionUpon these findings, respondent’s motion to dismiss the petition is granted.This is the decision and order of the court.Dated: New York, New YorkApril 24, 2018
