Summary
In Matter of Bedford Gardens Co. v Silberstein (269 AD2d 445 [2d Dept 2000]) the Appellate Division, Second Department held that the surcharges imposed on the Mitchell-Lama tenants were not "rent" and therefore not subject to suit in a summary nonpayment proceeding pursuant to RPAPL 711 (2).
Summary of this case from Riverbay Corp. v. Veronica CarreyOpinion
Argued January 6, 2000
February 17, 2000
In a summary nonpayment proceeding, inter alia, to collect certain surcharges, the petitioner appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated June 23, 1998, which modified an order of the Civil Court of the City of New York, Kings County (Mason, J.), entered July 11, 1997, denying the petitioner's motion for summary judgment, by adding thereto a provision granting summary judgment to the respondents dismissing the petition.
Robinson Silverman Pearce Aronsohn Berman, LLP, New York, N Y (Suzanne M. Berger of counsel), for appellant.
Gerald J. Dunbar, Brooklyn, N.Y., for respondents.
CORNELIUS J. O'BRIEN, J.P., FRED T. SANTUCCI, ANITA R. FLORIO, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the petitioner's contention, the surcharge imposed upon the respondents was not "rent" (see, Lincoln Amsterdam House v. Baxter, 249 A.D.2d 146; Lincoln Amsterdam House v. Baxter, 224 A.D.2d 207; Matter of Petrakakis v. Crown Hotels, 3 A.D.2d 635; see also, Matter of Binghamton Hous. Auth. v. Douglas, 217 A.D.2d 897). Since this summary nonpayment proceeding brought pursuant to RPAPL 711 Real Prop. Acts(2) may only be maintained to collect unpaid rent, the Appellate Term correctly found that there was no subject matter jurisdiction.