Recitation, as required by C.P.L.R. §2219(a), of the papers considered in review of this motion.Papers NumberedNotice of Motion and Affidavits Annexed 1Order to Show Cause and Affidavits AnnexedAnswering Affidavits 2Replying Affidavits 3Exhibits Pet’s A-B, Resp’s A-I 4,5OtherDECISION/ORDER After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:SUMMARY OF FACTS & PROCEDURAL POSTURECliffside Properties, LLC (“Petitioner”) commenced the instant nonpayment proceeding against Michelle Ortiz, (“Respondent”), the tenant of record of the rent stabilized premises located at 1632 Undercliff Ave., Apt. 2F, Bronx, NY 10453 (“Premises”). Respondent entered possession in April 2015 pursuant to a written lease subject to the Living in Communities II (“LINC”) program administered by the Human Resource Administration (“HRA”). Respondent’s initial lease commenced on April 1, 2015 and terminated on March 31, 2017. The lease reflects a legal regulated rent of $1,613.90 per month and a preferential rent of $1,515.Incorporated into the lease and signed by both parties is a “LINC Rider to Apartment Lease” (“Rider”). The Rider, inter alia, memorializes Respondent’s preferential rent of $1,515 and includes several terms detailing the permissible renewal increases to the rent. Under the agreement, Respondent is entitled to a self-executing renewal lease at $1,515. Thereafter, Respondent is entitled to three additional one-year leases. The rent for the first of these three terms is calculated by adding that year’s permissible Rent Guidelines Board (“RGB”) increase to the base rent of $1,515.1 The parties agreed that in the event of a conflict between the Rider and the lease, the terms of the Rider would prevail.On or around December 31, 2017, Respondent signed a one-year renewal lease for the term of April 1, 2018 through March 31, 2019 (“2018 Lease”). The lease charged a monthly rent of $1,634.07 reflecting a 1.25 percent increase from a base rent of $1,613.90. While the parties did not sign a renewal lease for the term of April 1, 2017 to March 31, 2018, a review of Petitioner’s rent ledger reveals that Petitioner charged Respondent $1,613.90 per month for that period.In May 2018, Petitioner commenced this proceeding after service of a five-day rent demand. The rent demand and petition seek a monthly rent of $1,634.07 for April and May 2018.On May 22, 2018, Respondent filed a pro se answer. She subsequently retained counsel and moved to amend her answer to include, inter alia, the defense that the parties’ lease did not permit Petitioner to seek in excess of $1,515 and $1,533.94 for her first and second lease renewals, respectively. The second amended answer was deemed served and filed by stipulation dated October 29, 2018.Respondent now moves under CPLR §3212 for partial summary judgment on the second defense of her amended answer, namely, that the Rider bars Petitioner from charging the amount sought in the petition.DISCUSSIONPursuant to CPLR §3212, a moving party may be entitled to summary judgment upon making a prima facie showing of entitlement to judgment as a matter of law. (Davern v. City of New York, 287 AD2d 679, 732 NYS2d 180 [2001]). Once the movant has established a prima facie case for entitlement to summary judgment, the burden shifts to the opponent to prove the existence of a triable issue of fact. (Adam v. Cutner & Rathkopf, 238 AD2d 234, 656 NYS2d 753 [1st Dept 1997], citing Zuckerman v. City of New York, 49 NY2d 557 [1980]). It is incumbent upon the party opposing summary judgment to assemble, lay bare and reveal his proofs in order to show that the allegations in the answer are real and are capable of being established at trial. (Glazer v. Falberg, 85 AD2d 938, 444 NYS2d 109 [1st Dept 1981]; Spearman v. Times Square Stores Corp., 96 AD2d 552, 465 NYS2d 230 [2nd Dept 1983]). Papers submitted in support of and in opposition to a summary judgment motion are examined in the light most favorable to the party opposing the motion. Martin v. Briggs, 235 AD2d 192, 196, 663 NYS2d 184 (1st Dept 1997). However, mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient to defeat a summary judgment motion. (Zuckerman, 49 NY2d at 562). If there is a genuine issue of material fact, summary judgment must be denied. (See Smalls v. AJI Industries, Inc., 10 NY3d 733, 735 853 NYS2d 526 [2008]; Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]).Respondent argues it has made a prima facie showing of entitlement to summary judgment because the Rider signed by both parties at the commencement of the tenancy limits the increases to the monthly rent. Furthermore, Respondent argues that the Rent Stabilization Code (“RSC”) requires Petitioner to renew Respondent’s lease “on the same terms and conditions” as Respondent’s original lease which includes the terms of the preferential rent.Additionally, Respondent asserts that the Appellate Division’s holding in Alston v. Starrett City, Inc., 161 AD3d 37, 74 NYS3d 211 [1st Dept 2018] does not relieve Petitioner’s obligations to comply with the requirements of the LINC program as reflected in the lease and Rider. Respondent claims the facts of Alston are distinguishable from those herein because the parties in Alston never signed a lease or otherwise entered into a landlord-tenant relationship. Here, however, Petitioner voluntarily signed the lease and Rider while offering a preferential rent and continues to reap the benefits of that agreement in the form of monthly rent payments from HRA.Petitioner’s opposition argues that the 2018 Lease supersedes the terms of the original lease and rider. Therefore, it maintains, the rent was properly increased after the expiration of the initial “two year LINC period.” Petitioner recites the Alston holding in general support of its contention that Respondent’s motion is meritless.As discussed below, this court finds that Respondent has made a prima facie showing of entitlement to summary judgment with respect to the amount of rent Petitioner may charge in this proceeding.The 2018 LeaseRespondent argues “the contractual rent limitations of the Lease Rider were incorporated into Respondent’s tenancy at the inception of that tenancy and are part of the ‘terms and conditions’ of that tenancy for the purposes of the RSC.” She argues that because the preferential rent was a provision of her initial lease, her subsequent renewals must incorporate the preferential rent term. Respondent points to RSC §2522.5(g)(1) which requires a landlord to offer renewals “on the same terms and conditions as the expired lease, except where the owner can demonstrate that the change is necessary in order to comply with a specific requirement of law or regulation…”Petitioner counters, arguing that “[t]he landlord properly obtained an increase in rent after the expiration of the two year LINC period.” In support, it refers to the parties’ 2018 Lease which raised the monthly rent to the current alleged legal regulated rent of $1,634.07 — the amount Petitioner currently seeks.The courts have routinely found that when parties agree to a preferential rent which extends beyond one renewal, that provision is a term and condition of the lease which is to be incorporated into subsequent lease renewals. In Colonnade Mgt., LLC v. Warner, the Appellate Term held that even though section 26-511(c)(14) of the Rent Stabilization Law explicitly allows a landlord to discontinue a preferential rent upon a lease renewal, if the parties agree to extend the preferential rent beyond one lease term, the tenant is entitled to have that provision of the lease incorporated into subsequent lease renewals. (11 Misc. 3d 52, 53, 812 NYS2d 209 [App Term 2nd Dept 2006] (“Where an owner and tenant expressly agree that a preferential rent will last for the life of the tenancy, the tenant is entitled to have such a lease provision carried over into subsequent renewal leases.”), citing Aijaz v. Hillside Place, LLC, 3 Misc. 3d 754 (Civ Ct, Queens County 2004) aff’d as modified 8 Misc. 3d 73 (App Term 2nd & 11th 2005) (“Since plaintiff and defendant’s predecessor here agreed upon a preferential rent that would last for the life of the tenancy, plaintiff was entitled to have this term of his lease carried over into all the renewal leases”)).In Von Rosenvinge v. Wellington Fee LLC, the tenant sought a declaratory judgment entitling him to a lease renewal that incorporated a life-long preferential rent as established in the parties’ original lease. As here, the tenant argued that he was entitled to a renewal on the same terms and conditions as his original lease pursuant to RSC §2522.5(g)(1). The court found that the parties original lease evinced an intent to extend the term of the preferential rent beyond a single renewal and held that a renewal which did not incorporate the terms of the preferential rent was unenforceable:Benefits given to a rent stabilized tenant cannot be withdrawn by a subsequent lease except under certain circumstances…Once the landlord has agreed that a tenant will pay preferential rent as long as he is a tenant, the landlord may not afterwards start charging the legal regulated rent…even where the tenant signs a renewal lease that provides for the legal regulated rent and pays such rent.(Emphasis added). (19 Misc. 3d 1118(A), 862 NYS2d 818 [Sup Ct, New York County 2008]; (See also United W. LLC v. Margulies, 12 Misc. 3d 1159[A], 2006 NY Slip Op 50971 [U] [Civ Ct, New York County 2006]) (“Petitioner failed to offer a proper renewal lease on the same terms and conditions of the original lease with a preferential rent. Therefore, the offered renewal lease is deemed null and void.”)).The courts have found that even lifetime preferential rents are enforceable if the parties intended to be bound by such terms. Here, the undisputed record reflects the parties’ intent to grant Respondent a preferential rent lasting four lease renewal terms in accordance to the terms of the Rider. Petitioner offered and Respondent accepted a lease with a preferential rent of $1,515, the maximum rent allowed by Respondent’s LINC voucher. Thereafter, HRA paid and Petitioner accepted a lump sum and monthly subsidy payments. If a preferential rent can be required for the duration of a tenancy, common sense dictates that one for a lesser duration is enforceable. (See Les Filles Quartre LLC v. McNeur, 9 Misc. 3d 179, 183, 798 NYS2d 899 [Civ Ct, New York County 2005]).Petitioner in its opposition provides no evidence that it did not intend to be obliged by the parties’ agreement. It does not dispute the clear mandates of the Rider or its obligations to comply with its terms. In fact, both parties include in their papers a copy of a “Landlord Statement of Understanding” where Petitioner explicitly commits to offering Respondent five terms of preferential rents as a condition to participating in the LINC program. As such, this court finds the 2018 Lease to be unenforceable in light of the parties’ original lease terms.The Alston Decision and Urstadt LawThe Appellate Division in Alston held that while “[s]tanding alone” neither Local Law 10 nor the LINC program’s use of rent vouchers violates the Urstadt Law, “[t]he application of Local Law 10 to compel acceptance of LINC program rent vouchers as presently structured effectively expands the number of buildings subject to City control” in violation of the Urstadt law (Emphasis added). (Alston, at 42). Because the terms of the LINC riders included guaranteed lease renewals and limited rent increases — effectively regulating previous exempt units — the landlords in Alston were permitted to refuse to rent to LINC voucher holders even if such refusal may have violated Local Law 10.Without specificity, Petitioner argues that the Alston holding releases it from the obligations under the Rider. However, the facts herein are distinguishable from Alston in critical respects. Here, there is a lease in place whereas in Alston no landlord-tenant relationship was ever created. Here, Petitioner voluntarily entered a lease with Respondent and bound itself to the terms of the lease and Rider which incorporated the conditions of Petitioner’s participation in the LINC program. Petitioner’s willingness to enter into this contract is evidenced by the very offer of the preferential rent. While Petitioner had every right to offer Respondent a lease with a legal regulated rent of $1,613.90, it chose to offer her a preferential rent of $1,515 — the maximum it could charge Respondent for the tenancy to be eligible for LINC. Indeed, Petitioner’s opposition (which lacks an affidavit of anyone with personal knowledge of the facts herein) does not assert that Petitioner was in any way forced to accept Respondent’s LINC voucher.Other than liberally citing to Alston, Petitioner fails to offer any analysis to justify its decision to abandon its obligations under the parties’ Lease and Rider. It merely points to the “recent trend” of cases involving tenants entering possession under a LINC lease. This court notes, however, that Petitioner does not cite to any cases besides Alston. As this court does not interpret Alston as holding that all LINC riders to which parties freely and willingly entered are automatically void, it finds Petitioner’s reliance on its holding misguided. Nothing in Alston precludes a landlord from voluntarily binding itself to terms such as those in the parties’ Lease and Rider.In light of the foregoing, this court finds that Respondent has made a prima facie entitlement to partial summary judgment. It now turns to the question of whether Petitioner raises a triable issue of fact.Existence of Triable Issues of FactAfter review of the evidence presented by both parties, this court does not find a triable issue of fact regarding the monthly rent Respondent is obligated to pay. It is undisputed that the parties’ initial lease offered Respondent a preferential rent of $1,515. It is also undisputed that the preferential rent is memorialized in the Rider to the lease signed by both parties. After the initial lease term, the Rider requires the rent for the second term to remain at $1,515 per month. Thereafter, the Rider permits increases to the base preferential rent of $1,515 for the third, fourth and fifth lease renewals pursuant to the permissible rent guidelines board increases for those years. Petitioner’s rent ledger reflects an increase to the rent from $1515 to $1,613.90 once Respondent’s initial lease term ended in March 2017 when the most that could be charged pursuant to the Rider and the relevant RGB increases was $1515 per month.2 For the renewal commencing April 1, 2018, the rent could be no greater than $1533.94 per month.3Petitioner does not deny the rent increases are in violation of the parties’ initial lease. It argues, instead, that the parties’ 2018 Lease and applicable case law permit it to do so. For the reasons set forth above, this court disagrees. As such, Respondent’s motion for partial summary judgment is granted and finds Petitioner may not seek rent in excess of $1515 per month from April 2017 through March 2018 and may not seek more than $1533.94 per month from April 2018 forward. This matter is adjourned to February 14, 2019 at 9:30 A.M. for Trial.This constitutes the Decision/Order of the court.SO ORDEREDDated: January 22, 2019
