Recitation, as required by C.P.L.R. §2219(a), of the papers considered in review of this motion.Papers NumberedNotice of Motion and Affidavits Annexed 1Answering Affidavits 2Reply Affidavits 3DECISION/ORDER Upon the foregoing cited papers, the decision and order on this motion are as follows:Between 2010 and 2012, Petitioner commenced seven nonpayment summary eviction proceedings against Respondents. Four years after the commencement of the last nonpayment proceeding, Petitioner commenced this holdover summary eviction proceeding, claiming that Respondents had violated a substantial obligation of their rent-stabilized tenancy by paying rent late such that Petitioner was compelled to commence the aforementioned seven nonpayment proceedings. Respondents answered and have moved for dismissal of the petition.“The repeated and unjustified defaults on the part of the tenant in the payment of rent constitute a violation of a substantial obligation of the tenancy” ( Stern v. Harold, 12 Misc 2d 73, 74 [App Term, 1st Dept 1958]). “The need to bring repeated summary proceedings for nonpayment of rent establishes prima facie a violation of the substantial obligation to pay the rent when due” ( Stern v. Carroll, 28 Misc 2d 507, 508 [App Term, 1st Dept 1960]; see also 31-67 Astoria Corp. v. Cabezas, 55 Misc 3d 132[A], 2017 NY Slip Op 50432[U] [App Term, 2d, 11th & 13th Jud Dists 2017] ["it is well settled that a 'history of repeated nonpayment proceedings brought to collect chronically late rental payments supports an eviction proceeding on the ground that the tenant has violated a substantial obligation of the tenancy'"]).But when evaluating whether the landlord has established a prima facie case of unjustified rent defaults on the part of the tenant, those nonpayment proceedings that were “discontinued or not pursued” should not be “charged against” the tenant ( 31-67 Astoria Corp., 55 Misc 3d 132[A]; see also Chama Holding Corp. v. Taylor, 37 Misc 3d 70 [App Term, 1st Dept 2012] [wherein the court declined to "consider" a nonpayment proceeding that was not "pursued" by the landlord]).Here, five of the seven nonpayment proceedings commenced by Petitioner were either not pursued by Petitioner or discontinued. In three of those five proceedings, Respondents did not answer the petition, nor did Petitioner request a default judgment. The penultimate proceeding was dismissed by the court. In the final proceeding, Respondents did not answer the petition, Petitioner’s application for a default judgment was denied, and no further action was taken. Additionally, other than allegations of nonpayment proceedings, missing from Petitioner’s opposition is any evidence of rent defaults, such as the affidavit of someone with personal knowledge detailing any rent defaults, or a rent ledger. Petitioner’s opposition to the motion comprises only legal arguments contained in the affirmation of counsel.Inasmuch as the summary judgment record comprises only two remaining nonpayment proceedings, and that those two proceedings were commenced five years prior to this proceeding, there is insufficient evidence of of a pattern of unjustified rent defaults to constitute a violation of a substantial obligation of the tenancy ( cf. Chama Holding Corp., 37 Misc 3d 70). Respondents are therefore awarded summary judgment and the petition is hereby dismissed.Dated: August 6, 2018
