Recitation, as required by CPLR §2219(a), of the papers considered in the review of Respondent’s motion for summary judgment pursuant to CPLR §3212: Papers/Numbered Notice of Motion & Affirmation/Affidavits/Exhibits Annexed. 1 Memorandum of Law in Support 2 Affirmation/Affidavit (with Exhibits) in Opposition 3 Reply Memorandum of Law in Support 4 Upon the foregoing cited papers, the decision and order on Respondent’s motion is as follows: PROCEDURAL HISTORY The immediate nonpayment proceeding was commenced by Notice of Petition and Petition dated March 8, 2019. The Petition alleges that Respondent is a rent-stabilized tenant and the “5 Day Notice to Tenant” (rent demand) annexed to the Petition alleges that Respondent owed $21,349.87 from May 2016 through February 2019. Respondent, through counsel, filed a Verified Answer on March 19, 2019. After court appearances on March 26, 2019 and May 15, 2019, Respondent, through counsel, filed a motion for summary judgment. After submission of opposition and reply papers, the Court heard argument on the motion on July 9, 2019 and reserved decision. RESPONDENT’S MOTION The crux of Respondent’s motion is that all leases since 2016 have required payment of rent at an amount of $555.16 per month (as a lower rent based on Respondent’s mother Claire Acerno’s [the prior tenant of record] SCRIE eligibility). Respondent attaches copies of money orders at the $555.16 rate back to July 2015. Petitioner opposes the motion and asserts that Respondent is obligated to pay the legal regulated rents included in the 2016 and 2018 leases (rather than the lower rents) because only Claire Acerno was eligible for SCRIE benefits, which purportedly terminated as of April 30, 2016. ANALYSIS A party moving for summary judgment pursuant to CPLR §3212 must “establish [its] cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor and he must do so by tender of evidentiary proof in admissible form.” Friends of Animals, Inc. v. Associated Fur Mfrs., 46 NY2d 1065, 1067 (1980) (citing CPLR §3212(b)). Contrariwise, “to defeat a motion for summary judgment, the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’” Id. (citing CPLR §3212(b)). In assessing Respondent’s motion, it is essential to reiterate that a nonpayment proceeding “must be predicated upon an agreement by the tenant to pay the rents demanded.” Licht v. Moses, 11 Misc 3d 76, 78, 813 N.Y.S.2d 849, 851 (App. Term 2d Dep’t 2006). See also 265 Realty, LLC v. Trec, 39 Misc 3d 150(A), 975 N.Y.S.2d 370 (App. Term 2d Dep’t 2017); Underhill Ave. Realty, LLC v. Ramos, 49 Misc 3d 155(A), 29 N.Y.S.3d 850 (App. Term 2d Dep’t 2015); 615 Nostrand Ave. Corp. v. Roach, 15 Misc 3d 1, 832 N.Y.S.2d 379 (App. Term 2d Dep’t 2006). With regard to a successor to a rent-stabilized tenancy, until a landlord offers a proper rent-stabilized lease to a successor tenant, “no landlord-tenant relationship” exists upon which a claim for rent may be predicated. 615 Nostrand Ave. Corp., 15 Misc 3d at 4, 832 N.Y.S.2d at 382-383. See also Strand Hill Assoc. v. Gassenbauer, 41 Misc 3d 53, 54, 975 N.Y.S.2d 526, 527 (App. Term 2d Dep’t 2013) (“[A] successor in interest is not a tenant until he becomes a party to a lease or rental agreement”). Therefore, it is Respondent’s burden on this summary judgment motion to demonstrate that Petitioner lacks a rental agreement with Respondent to support its claim for rent in excess of $555.16 per month back to June 2016. Both parties attach the 2016 lease (effective May 1, 2016 through April 30, 2018), which bears Claire Acerno’s name, but was purportedly signed by John Acerno. Although Respondent, in his affidavit in support, admits that he signed the lease “as the tenant,” he argues that he is not bound by the lease because 1) Petitioner only first acknowledged his tenancy with DHCR in 2018 and 2) Petitioner continued to pursue nonpayment proceedings against only Claire Acerno until March 2019 (when the most recent proceeding against her was discontinued without prejudice). To the first point, the DHCR “Annual Apartment Registration” form from 2018 attached to Respondent’s motion only acknowledges that John Acerno was the “tenant in occupancy on April 1, 2018.” No other DHCR registration documents are offered by either party, so it is unknown whether Petitioner acknowledged Respondent’s tenancy with DHCR any time prior to 2018. As to the second point, regarding the cases pursued against Claire Acerno, the first case cited (Sky View Towers Holding LLC v. Claire Acerno, Index No. L & T 60534/18 (Queens County)) was dismissed based on Petitioner’s failure to appear on May 23, 2018. The Petition in L & T 60534/18 alleged that Claire Acerno was the tenant in possession and owed $22,712.20, all rent due through May 2018. The second case cited (Sky View Towers Holding LLC v. Claire Acerno, Index No. L & T 50319/19 (Queens County)) was discontinued without prejudice on consent on March 8, 2019. The Petition in L & T 50319/19 also alleged that Claire Acerno was the tenant in possession and owed in excess of $27,000. Initially, the Court notes that the dismissal for failure to appear (in the first case) was not on the merits and does not have res judicata effect. See, e.g., Greenberg v. De Hart, 4 NY2d 511, 516-517 (1958); Franchise Acquisitions Group Corp. v. Jefferson Val. Mall Ltd. Partnership, 73 AD3d 1123 (2d Dep’t 2010); Weisinger v. Berfond, 11 AD2d 817, 818 (2d Dep’t 1960). Additionally, although the doctrine of judicial estoppel would appear to bar Petitioner’s attempt to collect rents from Respondent that it previously sought from his mother, the doctrine only applies in two specific situations that are not applicable here: 1) when a party frames its pleadings in a manner that is inconsistent with a position taken in a prior proceeding and where it was successful in obtaining relief in the prior proceeding (see, e.g., Environmental Concern, Inc. v. Larchwood Constr. Corp., 101 AD2d 591, 593-594 (2d Dep’t 1984)); or 2) when a party adopts a position that is directly contrary to or inconsistent with an earlier assumed position in the same proceeding (see, e.g., Matter of Hartsdale Fire Dist. v. Eastland Constr. Inc., 65 AD3d 1345, 1346 (2d Dep’t 2009); Maas v. Cornell Univ., 253 AD2d 1, 5 (3d Dep’t 1999)). Having found that Respondent has not established, for summary judgment purposes, that he is not bound by the 2016 and 2018 leases, the Court next assesses the terms of those leases. Both parties attach the same version of the 2016 lease. Under Paragraph 6 of the lease, “Tenant shall pay a monthly rent…[of] $555.16 for a 2 year renewal.” This is reiterated in Paragraph 9, which states that “Tenant is entitled to pay a reduced monthly rent in the amount of $555.16 under the New York City SCRIE program or the New York City DRIE program. The reduced rent may be adjusted by orders of such program.” Finally, in “Part B — Tenant’s Response to Owner,” the box stating that “I (we) the undersigned Tenant(s), accept the offer of a two (2) year lease at a monthly rent of $555.16″ is checked. Both parties’ signatures appear at the bottom, along with the handwritten statement, “subject to SCRIE’s approval.” The top of the lease (Column F) also includes the new legal rents, $999.53 for a one-year lease, and $1019.52 for a two-year lease. Consequently, under the lease’s plain terms, Petitioner had no basis to collect any rent during the 2016 lease term (running from May 1, 2016 through April 30, 2018) in excess of $555.16 unless adjusted by an order of the SCRIE program. See 83rd St. Apt. Co., LLC v. Shaustyuk, 50 Misc 3d 110, 113-114, 27 N.Y.S.3d 312, 314 (App. Term 2d Dep’t 2015). Petitioner has not come forth with any order from the SCRIE program except for the one covering the May 1, 2014 through April 30, 2016 period, which is inapplicable to the 2016 lease term. Therefore, Petitioner’s claim for rents at the legal regulated rent amount of $1,019.52 per month for the months running from September 2016 through April 2018 is without a contractual basis. As for the 2018 lease (with a term running from May 1, 2018 through April 30, 2020), the parties attach slightly different versions. The lease offered by Respondent states, in Paragraph 5, that the “Lower rent to be charged, if any,” is $555.16 for a 2 year lease. Similarly, Paragraph 6 states that “Tenant shall pay a monthly rent…[of] $555.16 for a 2 year renewal.” Paragraph 9 contains the same language as the 2016 lease pertaining to SCRIE/DRIE: “Tenant is entitled to pay a reduced monthly rent in the amount of $555.16 under the New York City SCRIE program or the New York City DRIE program. The reduced rent may be adjusted by orders of such program.” In “Part B — Tenant’s Response to Owner,” nothing is filled out or checked. The bottom of the lease contains Mr. Acerno’s signature and a “subject to SCRIE & DRIE’s approval” notation. The legal rents listed in Column F at the top of the lease are $1,032.26 for one year and $1,039.91 for two years. The version of the 2018 lease submitted by Petitioner is identical in all respects, but in Part B, the box stating that “I (we) the undersigned Tenant(s), accept the offer of a two (2) year lease at a monthly rent of…$1,039.91″ is checked, and a signature on behalf of Petitioner is included. In his Affidavit, Respondent states that the version he sent (and attaches) was never returned to him by Petitioner. Petitioner’s affiant, Anthony Pistilli (one of the owners), does not explain the discrepancy in the leases in his Affidavit in Opposition. Without needing to decide a battle of the leases, the Court finds that the undisputed provisions of both versions of the 2018 lease (specifying $555.16 as the lower rent to be paid by Respondent), along with the course of conduct of the parties as reflected in the terms of the prior leases1, established $555.16 (only to be modified by SCRIE order) as the rent for the 2018 lease term, notwithstanding the contents of Part B in Petitioner’s version of the lease. See 83rd St. Apt. Co., LLC, 50 Misc 3d at 113-114, 27 N.Y.S.3d at 314 (Course of conduct of the parties held to determine how SCRIE exemption would be applied to preferential rent); BPIII-548 W. 164th St. LLC v. Garcia, 95 AD3d 428, 429 (1st Dep’t 2012). As with the 2016 lease, Petitioner does not furnish any SCRIE order permitting it to modify the rent from the $555.16 amount. Accordingly, Petitioner has no contractual claim for rents in excess of $555.16 for the 2018-2020 lease term, and the rent demand and Petition are defective as a matter of law. See 239 Troy Ave., LLC v. Langdon, 38 Misc 3d 141(A), 969 N.Y.S.2d 807 (App. Term 2d Dep’t 2013) (Petition seeking rental amount without a basis in any agreement between the parties dismissed); see also Licht v. Moses, 265 Realty, LLC v. Trec, Underhill Ave. Realty, LLC v. Ramos, and 615 Nostrand Ave. Corp. v. Roach, supra. Although Respondent attaches copies of several money orders and mailing receipts to his motion, the affidavits in support lack sufficient details demonstrating how each payment was made to conclusively establish tender of each payment for the period at issue in this proceeding.2 As a result, it is hereby ORDERED that Respondent’s motion for summary judgment is granted and the Petition is dismissed with prejudice only as to rents in excess of $555.16 per month. It is further ORDERED that the dismissal is without prejudice to any claims to rent at the $555.16 amount. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Dated: September 12, 2019 Queens, New York
