In this holdover proceeding, petitioner seeks possession of the premises, which is a Section 8 regulated property, following service on respondent of a notice terminating the tenancy effective September 15, 2018. Respondent now moves to dismiss the petition on the grounds that petitioner accepted rent for several months after the termination date but before commencement of the instant action on January 7, 2019, thereby reinstating the tenancy. Petitioner opposes the motion. Petitioner served respondent with a notice of termination, dated August 15, 2018, alleging that he was in violation of his lease in that he played music at an unreasonably loud level disturbing his neighbors which required police intervention on at least three occasions and that he failed to properly report the income and composition of his household as required by the HUD regulations. Respondent contends that after receiving said notice of termination on August 28, 2018 petitioner agreed in correspondence to postpone taking action with respect to the notice to terminate. Respondent further contends that the correspondence further stated that if respondent kept the noise level down and provided some financial documents that it would go a long way towards resolving these matters. Respondent asserts that he complied with the request and on January 5, 2019 conducted his HUD re-certification and made a rent payment which included rent due after the termination date. It is respondent’s position that thereafter petitioner improperly commenced the instant summary proceeding since petitioner’s actions vitiated the notice of termination.In opposition, petitioner contends that upon receipt of the notice of termination respondent called petitioner’s counsel and advised him that he was scheduled to have serious surgery and would be unable to deal with the issues raised in the notice. Petitioner’s counsel informed respondent that if he could provide a doctor’s note regarding the surgery petitioner would postpone court proceedings. Respondent provided the doctor’s note on August 31, 2018 and on September 5, 2018 petitioner’s counsel agreed via correspondence to defer the action until after his recovery. A copy of the doctor’s note and the correspondence from petitioner’s counsel agreeing to defer the action are attached as exhibits to petitioner’s opposition papers. The doctor’s note indicates that respondent was to have surgery on October 9, 2019 and would need to recover for approximately six (6) weeks thereafter. Petitioner also acknowledges that respondent made a rent payment on January 5, 2019, however, contends that said payment was insufficient to satisfy the rent arrears as of January 2019. The ledger for respondent’s account, a copy of which is attached to petitioner’s opposition papers, indicates that as of January 2019 respondent owed $210.00 in arrears plus the $30 rent for the month of January. It further indicates that respondent made a payment of $120.00 on January 4, 2019.1 Petitioner also acknowledges that respondent completed the HUD recertification for the premises on January 5, 2019, including updating both the occupancy and income information as demanded in the notice of termination. Petitioner, however, contends that the re-certification was not an acknowledgment that the noise problem had been cured. It is petitioner’s position that since the commencement of the proceedings was delayed at respondent’s request and the HUD re-certification was mandated under the applicable regulations neither should render the instant proceedings vitiated.As a general matter, a landlord’s acceptance of rent from a tenant after the effective date of the termination notice and prior to the commencement of the summary proceeding does not, standing alone, constitute a waiver of the landlord’s termination notice. Matter of Georgetown Unsold Shares, LLC v. Ledet, 130 AD2d 99 (2d Dept 2015); Scarborough Manor Owners Corp. v. Robson, 57 Misc 3d 24 (App Term, 2d Dept. 2017); see also, 113-115 N. 5th Ave. Holding Corp. v. Costa, 58 Misc 3d 576 (Mount Vernon City Ct 2017). Rather, the specific facts and circumstances must be examined to ascertain whether a petitioner intentionally relinquished its right to proceed on its notice of termination. Id.In the case at bar, the Court finds that petitioner waived its right to proceed on the notice to terminate served on respondent on August 28, 2018. The notice of termination set forth a termination date of September 15, 2018. Upon receipt of the notice, respondent requested that petitioner defer the summary proceedings until after his surgery and recuperation, to which petitioner acquiesced. The note from respondent’s doctor stated that his surgery was to take place on October 9, 2018 and that he would require six (6) weeks from the date of his surgery to recover. As such, respondent’s predicted recuperation date was on or about November 20, 2018. Thereafter, on or about January 5, 2019, respondent made a $120.00 rent payment and completed his HUD re-certification, including updating occupancy and income information, as demanded in the notice of termination. It was only after respondent made a $120.00 rent payment and completed his HUD re-certification that respondent commenced the instant action on January 7, 2019, over seven (7) weeks after respondent’s predicted recuperation date.A review of the ledger for respondent’s account indicates that as of September 1, 2019 respondent owed $90.00 in arrears plus the $30.00 for the month of September. It further reveals that $90.00 of the $210.00 in arrears owed in January 2019 was accrued from October 2019 through December 2019, the three full months after the September 15, 2019 termination date and before the commencement of the instant action. Although petitioner contends that the $120.00 rent payment did not cover all of the arrears there is no indication as to whether the money paid by respondent in January 2019 was earmarked for arrears from before the termination date or for the rent due after the termination date. Assuming arguendo that petitioner properly applied the $120.00 payment to the oldest arrears, part of the payment was for September 2019, half of which was part of the post termination period. As such, at the very least, petitioner accepted rent for part of the post termination period.Moreover, petitioner conducted respondent’s HUD re-certification, including obtaining updated occupancy and income information, as demanded in the notice to terminate after having communicated to respondent in correspondence that updating said information would go a long way toward resolving the issues raised in the notice of termination. Petitioner’s conduct in completing said HUD re-certification thereby manifested an intent on petitioner’s part to waive the notice to terminate.Petitioner’s acceptance of the rent payment after the termination of the tenancy and prior to commencing the instant action, coupled with its HUD re-certification of respondent and a delay of over seven (7) weeks after respondent’s predicted recuperation date in commencing the instant proceeding, substantiates a finding that petitioner intentionally relinquished its right to proceed on its notice of termination. Petitioner’s conduct vitiated the notice of termination and reinstated the tenancy. Accordingly, respondent’s motion to dismiss the petition is granted.This constitutes the Decision and Order of this Court.The Court considered the following papers on this motion: Notice of Motion dated February 26, 2019, Affirmation in Support; Affirmation in Opposition dated March 6, 2019.Dated: April 5, 2019Mount Vernon, New York.
