Recitation, as required by CPLR §2219(a), of the papers considered in the review of respondent’s order to show cause. Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Answering Affidavits 3, 4 Replying Affidavits 5 Exhibits Other (Cross-Motion) 2 DECISION/ORDER Upon the foregoing cited papers, the decision/order on this order to show cause follows: Background Petitioner commenced this holdover proceeding holdover proceeding based on Lillian Rosario, the tenant of record’s failure to renew her lease. On October 25, 2018, petitioner and respondent Andres Cardona agreed to mark the case off calendar pending a determination by Division of Housing and Community Renewal (“DHCR”) on Cardona’s succession claim. Cardona also agreed to pay ongoing use and occupancy by the 5th day of each and every month commencing November 5, 2018. The stipulation provided that either side may restore the case, regardless of whether DHCR made a determination, but no later than August 31, 2019. On April 1, 2021, DHCR issued an order directing petitioner to offer Cardona a renewal lease within thirty days. Petitioner thereafter filed a petition for administrative review (“PAR”). The Deputy Commissioner denied the PAR on August 26, 2021. Petitioner then commenced an Article 78 proceeding. The Supreme Court remanded the case back to DHCR to clarify whether a clerical error was made in its determination regarding the date the agency found that the tenant of record permanently vacated the subject premises. Petitioner moved for leave to reargue the order and by decision/order dated March 13, 2023, the Hon. Ulysses B. Leverett denied the motion. Petitioner now moves for a final judgment and an order directing Cardona to pay use and occupancy for February 2023 through April 2023 and respondent cross-moves to dismiss the case. Discussion The Court will first address the cross-motion. Respondent argues that the case should be dismissed because he complied with the terms of the October 2018 stipulation. Specifically, respondent asserts that he was required to pay use and occupancy up until the time DHCR decided his succession claim. Depending on the determination, petitioner would either have to tender a lease in his name or proceed with its claim for possession. After DHCR decided in his favor petitioner could have done the former and then commence a nonpayment proceeding. Instead, petitioner is seeking another form of relief which runs counter to DHCR’s finding. Petitioner counters that having moved for this relief while the case is still pending, there is no basis in law for denying its claim for unpaid use and occupancy. Additionally, petitioner asserts that it should be granted all allowable increases dating back to 2019 when the DHCR and PAR decisions state that Rosario vacated. The Court finds respondent’s argument persuasive. Respondent agreed to pay use and occupancy during the pendency of this case. The stipulation contemplated that the parties would be bound by the determination of the DHCR. Once the agency made its decision, respondent became the tenant of the subject apartment and petitioner could no longer proceed against him as a licensee. Petitioner exercised its right to challenge the agency’s finding but the outcome of the PAR and Article 78 proceeding did not change this fact. Petitioner is now seeking use and occupancy for a period when its remedy, as respondent aptly asserts, is a claim for rent. Conclusion Based on the foregoing, the cross-motion is granted and the case dismissed. The motion is denied as moot. This constitutes the decision and order of the court. SO ORDERED Dated: March 26, 2024
