Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent’s motion for summary judgment Papers Numbered Notice of motion & Affidavits Annexed 1 Cross-motion and Affidavits Annexed Answering Affidavits 2 Replying Affidavits 3 Exhibits Other DECISION AND ORDER Upon the foregoing cited papers, the Decision and Order on this Motion is as follows: Petitioner commenced this summary proceeding seeking to recover possession of 127 Autumn Avenue, in Brooklyn (House), a single family home, after the expiration, on March 31, 2019, of a Notice of Termination (Notice). The proceeding first appeared on the court’s calendar on May 8, 2019, and was adjourned on several occasions. On July 1, 2019, respondent Althea O’Bryant appeared by counsel and interposed an answer setting forth, in addition to a general denial, three affirmative defenses. The first affirmative defense asserts that in violation of Real Properties Actions and Proceedings Law (RPAPL) §741[2-4], the petition fails to allege that the parties are participants in the LINC program. The second affirmative defense alleges that, in violation of RPAPL §741, the petition fails to describe accurately the relationship between the parties, characterizing respondent as a month-to-month tenant rather than as a tenant whose tenancy petitioner is seeking to terminate prior to the end of the lease. The third affirmative defense asserts that petitioner has neither complied with the provisions of the LINC lease rider nor the Landlord Statement of Understanding by notifying the Human Resources Administration of petitioner’s intent to terminate the lease. Respondent now moves for summary judgment. Summary judgment is authorized “if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” (CPLR 3212). Summary judgment is a drastic remedy, one to be granted only when there is no doubt that no triable issue of material fact exists (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978]). The proponent of summary judgment is required to make a prima facie showing of entitlement to judgment as a matter of law (Winegrad v. New York. Univ. Med. Center, 64 NY2d 851 [1985]). If the movant succeeds in doing so, the party opposing the motion must demonstrate, through the presentation of evidence in admissible form, the existence of a factual issue requiring trial (Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]). Neither the “shadowy semblance” of an issue (S.J. Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974]) nor “bald conclusory assertions, even if believable,” (Gelb v. Bucknell Press, Inc., 69 AD2d 829, 830 [2d Dept 1979]) are enough to defeat summary judgment. Here, the facts are not in dispute and the question raised is one purely of law. On February 8, 2016, respondent executed a lease for the House for a one year term commencing on March 1, 2016 and concluding on February 28, 2017. Respondent, at the time the lease was executed, was a participant in the Living in Communities (LINC) v. program administered by the Department of Social Services. In addition to executing the lease, the parties executed a LINC lease rider, and petitioner executed a Landlord Statement of Understanding. The LINC lease rider provides that: “3. Program Tenant is automatically entitled to a self-executing renewal of the Lease for a second year at the same total monthly rent provided for in this Rider, provided that (a) funding for the Program remains available and Program Tenant has been found eligible by the City for a second year of the Program, or (b) Program Tenant is able to pay his/her entire rent for a second year. 4. Program Tenant is further automatically entitled to three additional one-year leases at the same total monthly rent provided for in this Rider, increased by a percentage no greater than that allowed at that time for one year leases for rent-stabilized apartments in New York City, regardless of whether the Apartment is subject oto Rent Stabilization, provided that: (a) funding for the Program remains available and Program Tenant has been found eligible by the City for the applicable year of the Program, or (B) Program Tenant is able to pay his/her entire rent for the applicable year.” The Landlord Statement of Understanding, among other things, confirms the landlord’s understanding of those two provisions. The LINC Rider further provides that: “[i]f Program Tenant vacates the Apartment and/or any legal proceeding is commenced affecting the LINC Program Tenancy or this Rider, Landlord must provide written notice of the Apartment vacancy and/or legal proceeding within five (5) business days of the occurrence of said events.” The Landlord Statement of Understanding similarly provides that: “I understand that if any legal proceeding commenced affecting the LINC Program tenancy or the Lease Rider, I, the Landlord, must provide written notice of the legal proceeding within five (5) business days of the occurrence of said event.” It is undisputed that petitioner, rather than continuing to renew respondent’s lease in conformity with the terms of the LINC Rider and the Landlord’s Statement of Understanding, has instead served the Notice and commenced the instant proceeding. Petitioner argues that there is no longer any obligation to abide by the terms of LINC Rider or the Landlord’s Statement of Understanding because “the LINC programs has [sic] been found unconstitutional” and “[t]he LINC program rent vouchers have been held to be in violation of the Urstadt Law.” (Affirmation in opposition at pghs. 4-5). In advancing this argument, petitioner relies on Alston v. Starrett City, Inc., 161 AD3d 37 [1st Dept 2018]). The court notes that Alston nowhere addresses the constitutionality of the LINC program. Rather, it analyzes the applicability of the Urstadt Law (Unconsolidated Law §8605) and the New York City Human Rights Law (Administrative Code of City of NY §8-101 et seq) as amended by Local Law 10 of 2008 on Starrett City’s refusal to consider two applicants with LINC vouchers. Local Law 10 of 2008 amended the Human Rights Law to make it unlawful” ‘[t]o refuse to…rent, lease, approve the…or otherwise deny to or withhold from any persons or group of persons such a housing accommodation or any interest therein…because of any lawful source of income of such person or persons.’” Furthermore, §8-107(5)(a)(1)(b) makes it unlawful ‘[t]o discriminate against “[any person]…because of any lawful source of income of such person…in the terms, conditions, or privileges of the…rental or lease of any such housing accommodation or an interest therein or in the furnishing of facilities or services in connection therewith.’” (Alston v. Starrett City, Inc., 161 AD3d 37, 39-40 [1st Dept 2018]). The Urstadt Law provides that: “no local law or ordinance shall hereafter provide for the regulation and control of residential rents and eviction in respect of any housing accommodations which are (1) presently exempt from such regulation and control or (2) hereafter decontrolled either by operation of law or by a city housing rent agency, by order or otherwise. No housing accommodations presently subject to regulation and control pursuant to local laws or ordinances adopted or amended under authority of this subdivision shall hereafter be by local law or ordinance or by rule or regulation which has not been theretofore approved by the state commissioner of housing and community renewal subjected to more stringent or restrictive provisions of regulation and control than those presently in effect. “Notwithstanding any other provision of law, on and after the effective date of this paragraph, a city having a population of one million or more shall not, either through its local legislative body or otherwise, adopt or amend local laws or ordinances with respect to the regulation and control of residential rents and eviction (Unconsolidated Law §8605). Construing the application of both the Urstadt Law and the New York City Human Rights Law, the court held that: Standing alone, neither Local Law 10 nor the LINC Program’s use of rent vouchers violates the Urstadt Law…. 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 (see City of New York, 97 N.Y.2d at 227, 739 N.Y.S.2d 333, 765 N.E.2d 829; Real Estate Bd. of N.Y., Inc. v. City Council of City of N.Y., 16 Misc.3d 530, 532, 538, 842 N.Y.S.2d 218 [Sup. Ct., N.Y. County 2007]). (Alston v. Starrett City, Inc., 161 AD3d 37, 42 [1st Dept 2018]). Alston is readily distinguished from the instant proceeding. The interplay of the compulsory acceptance of vouchers pursuant to the New York City Human Rights Law and the regulation of rental increases required by the LINC program were construed as violating the Urstadt Law. Alston, however, involved a complex containing over 5000 units to which the provisions of the New York City Human Rights Law applied. The instant proceeding involves a private home. The provisions of the Human Rights Law forbidding discrimination based upon an applicant’s source of income are without effect; the code states that “[t]he provisions of this subdivision, as they relate to unlawful discriminatory practices on the basis of lawful source of income, shall not apply to housing accommodations that contain a total of five or fewer housing units. (Administrative Code of the City of New York §8-107[5][o]). When, as here, a single family home is involved, a landlord’s acceptance of a tenant participating in the LINC program is voluntary rather than mandatory. The Urstadt Law functions to prohibit the regulation and control of rents in apartments that are otherwise exempt. It does not forbid landlords from voluntary entering into a lease with the potential to be renewed at increases calculated by reference to orders of the Rent Guidelines Board. Respondent’s tenancy, therefore, remains subject to the LINC lease rider. Respondent seeks summary judgment based on the three affirmative defenses set forth in the answer. Respondent’s first and second affirmative defenses address the petition’s failure to state that respondent is a LINC participant, and that as a LINC participant, respondent remains entitled to lease renewals. The third affirmative defense asserts that “petitioner failed to notify HRA of its intent to terminate Respondent’s tenancy.” The third affirmative defense offers no basis for dismissal. Neither the Landlord Statement of Understanding nor the LINC lease rider require notification of intent to terminate a tenancy. Rather, they require that the Human Resources Administration be notified that a proceeding to terminate a tenancy has been commenced no more than five days after the commencement of the proceeding. Because the tenancy remains subject to the LINC Lease Rider, respondent continues to be entitled to renewal leases subject to its terms. By failing to assert the existence and applicability of the LINC rider, the petition, in derogation of RPAPL §741, fails to state the facts upon which it is based (Volunteers of America-Greater New York, Inc. v. Almonte, 65 AD3d 1155 [2d Dept 2009]). Accordingly, respondent’s motion for summary judgment is granted, and this proceeding is dismissed. This is the decision and order of the court. Dated: October 28, 2019 Brooklyn, New York
