In this holdover proceeding based on the termination of a purported month-to-month tenancy, Respondent Destiny Goings (Goings) moves to dismiss the petition for failure to have a cause of action or, in the alternative, for leave to interpose a late answer. Petitioner Attaullah Bhatti (Bhatti) opposes the motion in its entirety. Background Bhatti is the owner of “795 Fountain Avenue, Apt 2″ in Brooklyn. He seeks to recover the subject premises from Goings, who moved in on December 22, 2018 with her three minor children. In or around November 2018, Goings viewed the subject premises as a prospective renter. Although he disputes the amount of monthly rent ultimately agreed upon to lease the subject premises, Bhatti does not dispute that he signed a one-year written lease, dated December 3, 2018 (the 2018 lease), offering the premises to Goings at a monthly rent of $2,010.00. Pursuant to the 2018 lease, Goings’ tenancy began on January 1, 2019 and ends on December 31, 2019. It is undisputed that Goings did not countersign the lease. Through her caseworker at Catholic Charities, Goings applied for rental assistance from the CityFHEPS program of the New York City Human Resources Administration (HRA). On November 17, 2019, Bhatti executed a “CityFHEPS Landlord Statement of Understanding” (SOU) that identifies him as the “Owner,” and the subject premises as the “unit.” The SOU also provides, in relevant part, that: “The unit is being rented for at least a one-year period beginning on December 1st, 2018 to: Destiny Goings I [Bhatti] understand that I will receive at least the first full month’s rent up front and 11 months of CityFHEPS Rental Assistance Supplement. In accordance with CityFHEPS rules, I [Bhatti] understand that I must (a) [n]ot demand, request or receive any amount above the rent or reasonable fees that are stipulated in the lease or rental agreement” On December 11, 2018, HRA issued a “CityFHEPS Approval Notice” listing the “Total Monthly Rent” as $2,010.00. The following day, HRA issued 12 separate checks on behalf of Goings to Bhatti. Bhatti accepted and cashed these checks, which total $17,743.54.1 Bhatti also accepted an additional $6,310.00 in monies from HRA.2 This payment, coupled with the aforementioned checks, total $24,053.54 — just $66.46 shy of twelve months at $2,010.00 per month. On or around May 31, 2019, Bhatti served Goings with a 30-day notice alleging that she held a month-to-month tenancy and purporting to terminate that tenancy. In mid-July 2019, Bhatti commenced this holdover proceeding by service of a notice of petition and petition. Paragraph Four of the petition states, “[t]he term for which said premises were occupied by the respondent-tenant expired on: JUNE 30, 2019.” Arguments On her motion, Goings argues that dismissal of the petition is warranted because the uncontroverted record demonstrates that Goings’ tenancy expires on December 31, 2019 pursuant to the 2018 lease. Namely, Goings offered to rent the subject premises for one year at $2,010.00 per month in accordance with CityFHEPS guidelines, Bhatti accepted her offer, and his undisputed receipt of HRA payments in exchange for transferring possession to Goings was consideration for the agreement. Moreover, Bhatti’s execution of the 2018 lease demonstrates his assent to the essential terms of the agreement and Goings’ conduct in obtaining rental assistance from CityFHEPS demonstrates hers. In opposition, Bhatti at the outset appears to concede that the applicable standard of review on a 3211 (a) (7) motion where, as here, evidentiary material is submitted, shifts from whether the petition states a cause of action to whether the petition has a cause of action. But Bhatti later contends that the petition survives the instant motion merely because it states a cause of action for termination of a month-to-month tenancy. On the merits, Bhatti attacks the validity of the lease that he admittedly signed. Namely, the 2018 lease cannot be construed as a binding conveyance of the subject premises because Goings failed to countersign the lease and the lease was never delivered back to Bhatti. Since a written lease never took effect, Bhatti claims in an affidavit that Goings took possession of the subject premises only as a month-to-month tenant pursuant to an oral agreement to rent the premises for $2,300.00, rather than the $2,010.00. Therefore, according to Bhatti, the HRA payments he received leaves Goings current only through June 2019 — after which he properly terminated her monthly tenancy.3 Discussion At the outset, this Court addresses the relevant standard of review on a motion to dismiss for failure to state a cause of action where evidentiary material is submitted on the motion. Ordinarily, “in considering a motion to dismiss pursuant to CPLR R. 3211 (a) (7) [based on failure to state a claim], the court should accept the facts as alleged in the [petition] as true, accord [petitioner] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Tirpack v. 125 N. 10, LLC, 130 AD3d 917, 918 [2d Dept 2015] [internal quotations omitted] citing Leon v. Martinez, 84 NY2d 83, 88 [1994]). However, “where evidentiary material is submitted and considered on a motion to dismiss a [petition] pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the [petitioner] has a cause of action, not whether the [petitioner] has stated one, and unless it has been shown that a material fact as claimed by the [petitioner] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Garcia v. Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830 [2d Dept 2018]). Although the caselaw has drawn a distinction between the mere submission of affidavits versus documentary proof on a 3211 (a) (7) motion (see e.g. Yu Chen v. Kupoint (USA) Corp., 160 AD3d 787, 788-89 [2d Dept 2018]), when the evidentiary material in support of the motion, including affidavits, “conclusively establish” that petitioner has no cause of action, dismissal is warranted (Clarke v. Laidlaw Tr., Inc., 125 AD3d 920, 922 [2d Dept 2015] quoting Rovello v. Orofino Realty Co., Inc., 40 NY2d 633, 636 [1976]). In the case at bar, the proof submitted on Goings’ motion consists primarily of uncontroverted documentary evidence by way of the 2018 lease, SOU, Approval Notice, and the HRA checks. Thus, even if Bhatti states a cause of action for termination of a monthly tenancy on June 30, 2019, the petition does not survive dismissal if Goings establishes that Bhatti has no cause of action (see Mitkowski v. Marceda, 133 AD3d 574, 575 [2d Dept 2015] ["if the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action"]). It is axiomatic that “[t]he relation of landlord and tenant is always created by contract, express or implied…” (Stern v. Equit. Tr. Co. of New York, 238 NY 267, 269 [1924]). As a contract, “a lease achieves two ends, to wit: the conveyance of an estate in real property from lessor to lessee, and the delineation of the parties’ rights and obligations pursuant thereto” (see 219 Broadway Corp. v. Alexander’s, Inc., 46 NY2d 506, 509 [1979]). The central distinguishing characteristic of a lease is, of course, “the transfer of absolute control and possession of property at an agreed rental” (see Feder v. Caliguira, 8 NY2d 400, 404 [1960]). Concomitantly, all the essential terms must be agreed upon, including “the area to be leased, the duration of the lease, and the price to be paid” (see Davis v. Dinkins, 206 AD2d 365, 366- 67 [2d Dept 1994]). Even according Bhatti the benefit of every possible favorable inference, the evidentiary submissions conclusively establish that Petitioner has no cause of action based on termination of an alleged month-to-month tenancy. Namely, Bhatti executed the 2018 lease on December 3, 2018 granting Goings exclusive possession of the subject premises for a one-year period at $2,010.00 per month, and Goings took possession three weeks later. Thus, all essential terms of a landlord-tenant relationship are present in the 2018 lease. Moreover, the undisputed proof annexed to the moving papers evince a clear intent by both parties to be bound by those terms. Any averments in Bhatti’s affidavit to the contrary are self-serving and entirely belied by his statements in the SOU in which he agreed to receiving “11 months of CityFHEPS Rental Assistance Supplement” and that he would not seek or accept “any amount above the rent” of $2,010.00 per month (see e.g. Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 46 AD3d 530, 530 [2d Dept 2007 ["bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true"]). Finally, Bhatti adopted the lease by his admitted acceptance of the HRA checks, which roughly equal a years’ worth of rent at $2,010.00. Thus, dismissal of this proceeding is warranted because the documentary evidence herein reveals that an essential allegation of the petition, to wit, that Goings held a monthly tenancy which expired on June 30, 2019, is not a fact at all. Since Bhatti is the one against whom the lease is charged, it is of no moment that Goings failed to countersign the 2018 lease (see Kaplan v. Lippman, 75 NY2d 320, 324 fn [1990] [in action to enforce sublease where party against whom enforcement of the contract is sought has signed, "the absence of a signature by the party seeking to enforce the agreement is without legal significance"]; see also Vista Properties, LLC v. Rockland Ear, Nose & Throat Assoc., P.C., 60 AD3d 846, 847 [2d Dept 2009]; see e.g. Newburger v. Am. Sur. Co., 242 NY 134, 143 [1926] ["if a person has accepted a written agreement and has acted upon it he is bound by it although he may not have set his hand to the document"]; Restatement (Second) of Property, Land. & Ten. §2.2 [1977]). Moreover, Bhatti’s argument that the lease, which he executed, is invalid because it was never physically returned to him, is without merit. Indeed, even in 219 Broadway Corp. v. Alexander’s, Inc. (46 NY2d 506 [1979]) — the case upon which Bhatti primarily relies — the Court of Appeals ruled that “delivery of a lease so as to give it effect requires acts or words or both acts and words which clearly manifest that it is the intent of the parties that an interest in the land is, in fact, being conveyed to the lessee” (46 NY2d at 512). Here, Bhatti acknowledged the duration and rental amount in the 2018 lease and SOU. He then delivered possession of the subject premises to Goings less than two weeks after receiving HRA payments approximately equal to 12 months of rent at the amount memorialized in in the undisputed documentary proof. Because Bhatti’s acts and words clearly demonstrate the parties’ agreement to transfer absolute control and possession of the subject premises at a specified rental amount for a specified duration, he may not be heard to contest the failure by Goings or her caseworker to physically return the lease to him (see e.g. Wooster 76 LLC v. Ghatanfard, 68 AD3d 480 [1st Dept 2009] [delivery requirement satisfied where plaintiff landlord deposited of the security deposit, delivered keys to defendants, and invoiced defendant tenant for rent due]). Lastly, it bears noting that, assuming arguendo the absence of the 2018 lease, the uncontroverted evidence nevertheless supports the conclusion that the parties entered into an oral lease on the same essential terms as those contained in the 2018 lease. In other words, the clear manifestation of mutual assent by the parties evince the formation of an agreement to rent the subject premises for a one-year term. Therefore, the question of delivery is ultimately moot. Accordingly, it is Ordered that Respondent Destiny Goings’ motion to dismiss the proceeding is granted to the extent of dismissing this proceeding; and it is further Ordered that the balance of the motion is denied as moot. Dated: November 26, 2019
