DECISION/ORDERBACKGROUND This summary holdover proceeding was brought by Michele Scott against Daisy Vega on the ground that Respondent’s month-to-month tenancy had been terminated. Respondent previously moved this Court for summary judgment seeking dismissal of the instant proceeding on the basis that Respondent’s lease and the annexed LINC rider were in effect. This Court denied the requested relief and set the matter down for trial. Respondent’s counsel now seeks leave for re-argument pursuant to CPLR §2221. For the reasons cited below, the Court GRANTS the requested relief in its entirety and dismisses the instant proceeding.THE MOTIONI. Relevant StandardMotions for leave to reargue and/or renew are governed by CPLR §2221. A motion for leave to reargue and a motion for leave to renew must be specifically identified as such (CPLR §2221 [d][1]; CPLR §2221 [e][1]). Under CPLR §2221 [d], a motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (see also Williams P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22 [1st Dept 1992]). Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and are not an opportunity for the unsuccessful party to reargue points already made and rejected by the court (Mangine v. Keller, 182 AD2d 476 [1st Dept 1992]; Fosdick v. Town of Hempstead, 1026 NY 651 [1891]; Foley v. Roche, 68 AD2d 558 [1st Dept 1979]; American Trading Co. v. Fish, 87 Misc 2d 193 [Sup Ct, NY County 1975]). Nor are such motions designed to provide the movant a medium by which to present new or different arguments from those originally asserted (Foley v. Roche, 68 A.D.2d 558 [1st Dept 1979]). A motion denominated as a motion for reargument will be treated as a motion to renew (even in the absence of the moving party requesting such relief) if the motion papers present additional facts not previously considered. (Stridiron v. Jacob’s Ladder Realty, L.L.C., 33 AD3d 320 [1st Dept 2006]; Mejia v. Nanni, 307 A.D.2d 870 [1st Dept 2003]).II. Applicability of the Standard to the Instant MatterThe facts of this case have been detailed in this Court’s previous decision and will not be reiterated herein. The thrust of Respondent’s motion to reargue is based on the premise that the Court overlooked or misapprehended the law with respect to Alston v. Starrett City, Inc. (161 AD3d 37 [1st Dept 2018]). Of note, the Alston case was not briefed or raised by the parties in their initial moving papers even though the Appellate Division had already decided the matter by the time the papers were filed and fully submitted. The Alston matter was especially germane as the arguments raised by the parties in the initial moving papers centered around a lease and the attendant LINC riders which would have automatically renewed Respondent’s lease. In reaching its earlier decision, the Court determined that summary judgment was not warranted and that the question of whether there existed an enforceable lease in light of Alston was an issue best suited for trial.Respondent now argues that the language and rationale of the Court’s previous decision would violate the parol evidence rule. While it is true that parol evidence is generally inadmissible to contradict or vary a written contract such as a lease, it is still admissible to show that what purports to be a written contract is no contract at all (see generally, Polygram Holding, Inc. v. Cafaro, 42 AD3d 339 [1st Dept 2007]). Ultimately, the question of whether re-argument should be granted will not turn on the applicability of the parole evidence rule to the instant matter. The more convincing argument proffered by the Respondent on reargument, however, is that the holding of Alston v. Starrett City, Inc is inapplicable to the instant proceeding.In Alston, the Court wrote the following:“Standing alone, neither Local Law 10 nor the LINC Program’s use of rent vouchers violates the Urstadt Law. The defendants herein concede as much. In fact, we have previously held that, to the extent it compels landlords to accept governmental rent vouchers for payment of rent, Local Law 10′s “source of income” discrimination provisions do not violate the Urstadt Law (see Tapia v. Successful Mgt. Corp., 79 A.D.3d 422, 425, 915 N.Y.S.2d 19 [1st Dept. 2010]). Where the LINC Program runs afoul of the Urstadt Law, however, is in its use of mandatory riders that compel a landlord to renew a lease for up to five years at a minimum increase specifically tied to other City rent regulatory programs to which the housing unit is not presently subject. The 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 by imposing on those housing units a more stringent control than presently exists. This creates exactly the situation which the Urstadt Law forbids…”Respondent now argues that Local Law 10 is not implicated herein as it does not apply to housing accommodations that contain a total of five or fewer housing units (New York City Human Rights Law §8-107 [5][o]). The building at issue here contains only three dwelling units: a fact which the Court overlooked in its earlier decision. Since compulsory acceptance of a LINC rider in conjunction with Local Law 10 did not occur in this instance, the holding of Alston, in the Court’s view, is inapplicable to the facts at hand.Accordingly, the Court grants Respondent’s motion for reargument and dismisses the Petition. The Respondent here occupies the subject premises pursuant to a valid and existing lease agreement and, as such, there was no basis for Petitioner to proceed on the ground that Respondent’s month-to-month tenancy was terminated.CONCLUSIONAccordingly, it is hereby:ORDERED, that Respondent’s motion for reargument is GRANTED; and it is furtherORDERED, that the Petition is dismissed.This constitutes the Decision/Order of this Court.Dated: May 30, 2019Bronx, New York
