Opinion
No. 2011–469 K C.
2012-08-7
HATIM GROUP, LLC, Respondent, v. Cynthia JOHNSON, Appellant.
Present: PESCE, P.J., WESTON and RIOS, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, Jr., J.), entered February 14, 2011. The order, insofar as appealed from, granted landlord's motion for summary judgment and upon, in effect, granting the branch of tenant's cross motion seeking leave to reargue her prior motions to dismiss the petition or, in the alternative, for leave to interpose an answer, adhered to the prior determinations. The appeal is deemed to be from a final judgment of the same court entered February 14, 2011 awarding possession to landlord in a holdover summary proceeding (see CPLR 5501[c] ).
ORDERED that the final judgment is reversed, without costs, so much of the order entered February 14, 2011 as granted landlord's motion for summary judgment is vacated, and landlord's motion for summary judgment is denied.
In this holdover proceeding, landlord alleges that it terminated tenant's rent-stabilized renewal lease by service of a 10–day notice to cure and a notice of termination based on an informal hearing decision of the New York City Department of Housing Preservation and Development finding that tenant, who held a Section 8 voucher, had an unreported member of the household for at least four years. After two motions by tenant seeking, among other things, to dismiss the petition, based, in part, on landlord's failure to cite a lease provision that tenant had allegedly violated, had been denied, the Civil Court, by order entered February 14, 2011, granted a motion by landlord for summary judgment, in effect granted the branch of a cross motion by tenant seeking leave to reargue her prior motions, and adhered to the prior determinations. A final judgment was entered pursuant to the order entered February 14, 2011, awarding possession to landlord.
In our view, the final judgment must be reversed and so much of the order as granted landlord's motion for summary judgment vacated. A motion for summary judgment “shall be granted 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[b] ). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by presenting evidence, in admissible form, demonstrating the absence of any material issues of fact ( see e.g. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986];Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ).
Here, landlord's submissions fall short of establishing, prima facie, its entitlement to judgment as a matter of law. In moving for summary judgment, landlord failed to submit an affidavit based upon personal knowledge and, instead, submitted an affirmation from its attorney. Although the attorney's affirmation indicates that tenant's Section 8 subsidy had been terminated and that landlord's acceptance of Section 8 benefits was a condition of the lease, landlord did not produce the lease. Absent evidentiary proof that such a condition existed in the lease, landlord cannot maintain this holdover proceeding based on its termination of the lease ( see Perrotta v. Western Regional Off–Track Betting Corp., 98 A.D.2d 1 [1983];Baumeister v. Casieri, 32 Misc.2d 654 [App Term, 1st Dept 1961]; 89–09 Sutphin Corp. v. Scarinzi, 187 Misc. 536 [App Term, 2d Dept 1946]; see also Dass–Gonzalez v. Peterson, 258 A.D.2d 298 [1999] ). Moreover, landlord failed to demonstrate, with admissible proof, that termination of the subsidy itself justifies termination of the tenancy, regardless of the terms of the lease. To the extent landlord sought to remedy the deficiencies in its moving papers by submitting, in reply, an affidavit based upon personal knowledge, such submissions are not entitled to consideration ( see Canter v. East Nassau Med. Group, 270 A.D.2d 381 [2000] ). “[T]he function of a reply affidavit is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion” ‘ (Lumbermens Mut. Cas. Co. v. Morse Shoe Co., 218 A.D.2d 624, 625 [1995], quoting Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 562 [1992] ). We leave undisturbed so much of the Civil Court's February 14, 2011 order as, upon, in effect, granting the branch of tenant's cross motion seeking leave to reargue her prior motions, adhered to the prior determinations, as we perceive no error of law or abuse of discretion therein. WESTON and RIOS, JJ., concur.
PESCE, P.J., concurs in part and dissents in part in a separate memorandum.
PESCE, P.J., concurs in part and dissents in part and votes to reverse the final judgment, vacate so much of the order entered February 14, 2011 as granted landlord's motion for summary judgment and upon, in effect, granting the branch of tenant's cross motion seeking leave to reargue her prior motions to dismiss the petition or, in the alternative, for leave to interpose an answer, adhered to the prior determinations, deny landlord's motion for summary judgment and grant the branch of tenant's cross motion seeking to dismiss the petition.
In my view, the branch of tenant's cross motion seeking to dismiss the petition should have been granted. It is elementary that a holdover proceeding based upon a landlord's termination of a lease may only be maintained where there is a conditional limitation in the lease providing for its early termination ( see Perrotta v. Western Regional Off–Track Betting Corp., 98 A.D.2d 1 [1983];Baumeister v. Casieri, 32 Misc.2d 654 [App Term, 1st Dept 1961]; 89–09 Sutphin Corp. v. Scarinzi, 187 Misc. 536 [App Term, 2d Dept 1946]; see also Dass–Gonzalez v. Peterson, 258 A.D.2d 298 [1999] ). As landlord was unable to produce tenant's lease, and failed even to allege, in the notice of termination and petition, the existence of such a provision in the lease, the branch of tenant's cross motion seeking the dismissal of the petition should have been granted and landlord's motion for summary judgment should have been denied.