Summary
In Pinnacle Bronx West LLC v. Jennings (29 Misc 3d 61, 910 NYS2d 335 [App Term 1st Dep't 2010]), cited by Petitioner in support of the proposition that Mr. Corcho's failure to maintain his Section 8 subsidy creates a holdover cause of action based on breach of lease, the Appellate Term noted in dicta that, "among the potential remedies available to landlord is the commencement of a holdover summary proceeding based upon an alleged breach of lease stemming from tenant's failure to recertify for Section 8 eligibility."
Summary of this case from 1649 Nelsco, L.L.C. v. CorchoOpinion
No. 570526/09.
September 16, 2010.
APPEAL from an order of the Civil Court of the City of New York, Bronx County (Paul L. Alpert, J.), dated November 6, 2008. The order, insofar as appealed from as limited by petitioner's brief, granted in part respondent's motion for summary judgment dismissing the petition in a nonpayment summary proceeding.
Horing, Welikson Rosen, P.C., Williston Park, for appellant. Edward Kravitz, Brooklyn, for respondent.
Before: McKEON, P.J., SHULMAN and HUNTER, JR., JJ.
OPINION OF THE COURT
Order, insofar as appealed from, affirmed, without costs.
The landlord's prior acceptance of a Section 8 rent subsidy constituted a "term and condition" of the tenant's expired stabilized lease agreement ( see Rent Stabilization Code [ 9 NYCRR] § 2522.5 [g] [1]), so that the tenant's 2007 "deemed" lease renewal was required to continue with that term and condition ( see Rosario v. Diagonal Realty, LLC, 8 NY3d 755). "Absent a showing by landlord of a new agreement . . . a Section 8 tenant does not become liable for the Section 8 share of the rent as `rent' even after the termination of the subsidy" ( Prospect Place HDFC v. Gaildon, 6 Misc 3d 135[A], 2005 NY Slip Op 50232[U], *2 [2005], quoting Rainbow Assocs. v Culkin, 2003 NY Slip Op 50771[U], *2 [2003]; see also W L Assoc. LLC v. Gurevich, 16 Misc 3d 129[A], 2007 NY Slip Op 51289[U]). Landlord's contrary argument notwithstanding, a renewal lease purporting to obligate a former Section 8 tenant to pay the full lease rent cannot be considered such a "new agreement" sufficient to change or modify the terms and conditions of an expired stabilized lease ( see 835-37 Trinity Ave. HDFC v Royal, 26 Misc 3d 1240[A], 2010 NY Slip Op 50481[U]). Thus, the court properly dismissed so much of the nonpayment petition as sought recovery of claimed arrears in excess of the tenant's share of the rent. In affirming the partial dismissal of the petition, we note that among the potential remedies available to landlord is the commencement of a holdover summary proceeding based upon an alleged breach of lease stemming from tenant's failure to recertify for Section 8 eligibility.