Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this: motion for summary judgment to dismiss for failure to state a cause of action and other relief. Papers Numbered 1. Notice of Motion and Attached Exhibits 1 2. Affirmation in Opposition and Attached Exhibits 2 3. Affirmation in Reply 3 This is a proceeding commenced by Petitioner against Respondents to recover alleged rent arrears. At the time of filing on June 28, 2018, Petitioner alleged Respondents owed $5,105.89. Respondent Hoke filed a pro se answer on July 10, 2018. Respondent Velasquez has never appeared in this proceeding. The matter initially appeared on the Court’s calendar on July 23, 2018 and was subsequently adjourned three times for Respondent Hoke to seek counsel.1 On February 14, 2019, Respondent’s counsel appeared for the first time. Thereafter, the matter was adjourned by two-attorney stipulation three additional times in an attempt to resolve the matter and for motion practice. On April 18, 2019, Respondent filed an amended answer with counterclaims, to which Petitioner filed an answer generally denying each and every allegation contained in Respondent’s Counterclaims. Petitioner alleges $5,342.01 is currently due through June 2019. Respondent now seeks a dismissal of the proceeding pursuant to CPLR §3212 for failure to state a cause of action. Respondent alleges that Petitioner failed to properly credit his Senior Citizen Rent Increase Exemption (“SCRIE”) Tax Abatement Credit and as such, Respondent does not currently owe any rent, rather he is owed a credit by Petitioner. Petitioner opposes the motion and asks that the Court deny the motion in its entirety. After a review of the papers submitted and for the reasons set forth herein, the Court denies the motion. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d. 851 [1985]). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (Assaf. Ropog Cab Corp., 153 AD2d 520 [1st Dept. 1989]). Respondent has been a recipient of SCRIE since 2012. The SCRIE program “grants rent increase exemption orders to eligible senior citizen tenants residing in rent controlled and rent stabilized apartments to compensate a landlord who is barred from collecting rent increases from a SCRIE-qualified tenant, the City grants the landlord a real property tax abatement in an amount equal to the rent increase exemption” (Jadam Equities, LLC v. Stupp, 182 Misc 2d 666 [Sup Ct, New York County 1999]). Pursuant to the current lease, the legal rent is $1,240.79 and Respondent receives a preferential rent of $855.89.2 Pursuant to the SCRIE documents attached to both parties’ papers, Respondent’s rent is frozen at $1076.89. Respondent argues that Petitioner should apply the SCRIE credit to his preferential rent as opposed to the legal rent, which would further reduce the amount Respondent is required to pay monthly. Respondent contends that since Petitioner applies the credit to the legal rent and not the preferential rent, he has been overcharged and is entitled to a credit, which would more than cover any alleged rent arrears.3 Respondent relies on 83rd St. Apt. Co., LLC v. Shaustyuk, 50 Misc 3d 110 (App Term 2d Dept 2015), which affirmed a trial court decision dismissing the landlord’s nonpayment proceeding on the basis that the tenant’s SCRIE credit should be applied to the preferential rent rather than the legal regulated rent. The trial court found that the parties had agreed that the landlord’s SCRIE tax abatement would be applied to the tenant’s preferential rent and as a result, the tenant was current on her rent payments at the preferential rent amount minus the SCRIE credit, requiring dismissal of the petition. Id. at 111. The landlord appealed, arguing that the tenant’s SCRIE credit was properly applied to the legal regulated rent, therefore the tenant was in arrears and the landlord was entitled to a final judgment of possession and arrears. Id. at 111-112. In affirming the trial court’s decision, the Appellate Term found that from the inception of the SCRIE exemption, the landlord had deducted the abatement from the tenant’s preferential rent and once the landlord decided to continue to offer a preferential rent on the renewal lease, the practice of deducting the SCRIE abatement from the preferential rent was a “term and condition” of the parties’ agreement that had to be continued. Id. at 113. Petitioner opposes the motion and argues that it has never applied the SCRIE Tax Abatement Credit to the preferential rent and that it has never been the intention of the parties to do so. Petitioner further argues that Shaustyuk is distinguishable from the instant matter in that the parties in Shaustyuk agreed to deduct the SCRIE credit from the preferential rent, which is beyond what the SCRIE program requires. The Court finds that on this record Respondent has not shown entitlement to summary judgment and dismissal of the proceeding. Respondent has failed to demonstrate that the course of conduct of the parties establishes an agreement to apply the SCRIE exemption to the preferential rent. Similarly, Respondent has failed to furnish any law or SCRIE program requirement that indicates a landlord must apply the SCRIE credit to a preferential rent. Pursuant to Real Property Tax Law §467-b(3)(c), a SCRIE exemption shall be deducted from the chargeable legal maximum rent or legal regulated rent. Respondent’s reliance on Shaustyuk is misplaced because that case turned on an agreement and a course of action between the parties, neither of which are applicable here. Accordingly, the motion is denied. The matter is adjourned to September 23, 2019 at 9:30 a.m., Part U, for a settlement/pre-trial conference. This constitutes the Decision and Order of the Court. Dated: August 6, 2019 New York, NY
