Recitation, as required by 2219(A), of the papers considered in the review of this motion by petitioner for summary judgment and respondent’s cross-motion for summary judgment. PAPERS NUMBERED Notice of Motion and Affidavits Annexed 1 Respondent’s cross-motion Affidavits and Exhibits Annexed 2 Answering Affidavits 3 Replying Affidavits 4 DECISION/ORDER Upon the foregoing cited papers, the decision/order in these Motions is as follows: BACKGROUND AND PROCEDURAL HISTORY: This holdover proceeding was commenced in October 2018, to recover possession of apartment 3, in this three family house located at 1446 Gillispie Avenue, Bronx, New York. Petitioner alleges respondent is a month to month tenant whose tenancy was terminated after service of a thirty day notice of termination. Respondent moved into the subject premises, pursuant to a lease for the period, January 1, 2016 thru December 31, 2016 at a monthly rental of $1256.00. Respondent is a recipient of the Living in Communities Program (LINC), the lease signed by both parties, included a “LINC I, II, III, IV and v. Programs Rider to Apartment Lease,” and “Landlord Statement of Understanding” signed by petitioner on December 21, 2015. Paragraphs 3 and 4 of the Rider as well as paragraphs 3 and 4 of the “Landlord’s Statement of Understanding,” provided “the Program Tenant is entitled to a self-executing renewal of the Lease for a second year at the same total monthly rent provided for in this Rider, provided that (a) funding for the Program remains available and Program Tenant has been found eligible by the City for a second year of the Program, or (b) Program Tenant is able to pay his/her entire rent for a second year.” Paragraph (4) of the lease Rider and the “Landlord Statement of Understanding” further provides that “the Program Tenant is further automatically entitled to three additional one year leases at the same total monthly rent, increased by a percentage no greater than that allowed at that time for one year leases for rent stabilized apartments in New York City, regardless of whether the apartment is subject to Rent Stabilization, provided that (a) funding for the Program remains available and Program Tenant has been found eligible by the City for the applicable year of the Program, or (b) Program Tenant is able to pay his/her entire rent for the applicable year.” The proceeding first appeared on the court’s calendar on November 5, 2018, and was adjourned several times for possible settlement and motion practice. On January 18, 2019, petitioner moved for an order deeming respondent’s failure to answer the Notice of Petition and Petition, a general denial, granting summary judgment, pursuant to CPLR §3212(a), and granting petitioner a judgment of possession and warrant of eviction. Respondent has also filed a motion to dismiss which the court will consider as a cross-motion, pursuant to CPLR §3211 (a)(1) and (7), for failure to state a cause of action based upon respondent being entitled to a lease renewal as part of her participation in the LINC program. In the alternative, respondent seeks leave, pursuant to CPLR §3012(d) and CPLR §2004, to interpose an answer in this proceeding, to dismiss the proceeding, pursuant to CPLR §3211(a), and/or summary judgment on respondent’s first affirmative defense that petitioner continued to accept rent after service of the notice of termination, and prior to commencement of this holdover proceeding, thereby vitiating the notice of termination. Respondent also moves for summary judgment, pursuant to CPLR §3212, arguing the Appellate Division’s decision in Alston v. Starrett City, 161 AD3rd 37 (1st Dept. 2018), is not applicable to the instant proceeding. Petitioner initially submitted an affidavit in support of his motion; there was no affirmation or memorandum of law from petitioner’s counsel. In his affidavit, petitioner argues that the Rider to respondent’s LINC lease, which includes self-executing renewal leases for up to four years beyond the initial lease term of January 1, 2016 through December 31, 2016, violates the Urstadt Law, and cites the Appellate Division, First Department’s decision in Alston v. Starrett City, to support its argument. The court in Alston held, petitioner argues, that the LINC program violates the Urstadt Law proscription against expanding the number of housing units subject to “more stringent or restrictive provisions of regulation and control than those presently in effect.” Therefore, petitioner argues, respondent does not have an effective lease and is a month to month tenant whose tenancy can be terminated after service of a thirty day notice. Respondent argues in opposition and support of her motion, that the proceeding should be dismissed for failure to state a cause of action, pursuant to CPLR§3211(a)(1) and (7), as she is entitled to a lease renewal as part of her participation in the LINC program. A landlord may bring a “no cause” holdover to evict a tenant in an unregulated apartment where the “tenant continues in possession of any portion of the premises after the expiration of the lease term.” RPAPL §711. In order to maintain a holdover proceeding, pursuant to RPAPL §711, the landlord must allege and prove that the tenancy has expired prior to the time the proceeding commenced and there is no valid lease. Here, as respondent’s lease term is subject to automatic renewals and does not expire until December 31, 2020, respondent argues, the petition should be dismissed for failure to state a cause of action. Respondent further argues, if the proceeding is not dismissed, leave should be granted to allow her to interpose a late answer as the time to answer a petition in a holdover proceeding is at the time the petition is to be heard, and upon an application of a party, pursuant to CPLR §3012 (d), the court may extend the time to appear or plead, or extend time for good cause, pursuant to CPLR §2004. Leave to interpose an answer is necessary in this proceeding, respondent argues, as she has meritorious defenses to this proceeding, including being entitled to a renewal lease and ‘waiver” as respondent alleges petitioner accepted rent, after the notice of termination and before commencement of the proceeding, thereby vitiating the notice of termination and creating a new tenancy. Respondent argues that petitioner’s motion for summary judgement should be denied and respondent’s cross-motion granted because Alston v. Starrett City does not apply to this proceeding as Alston clearly states that neither Local Law 10 nor the LINC Rider independently violate the Urstadt Law, the law is violated when landlords are compelled or forced to enter into a lease agreement. In this proceeding, petitioner voluntarily agreed to participate in the LINC program and does not argue mistake, duress or misrepresentation. Respondent further argues, that courts have found the LINC rider fully enforceable against landlords who voluntarily enter into these agreements and receive the benefit of the bargain. The parties in this proceeding, respondent argues, voluntarily signed the contract and executed the LINC agreement which entitled respondent to a self-executing renewal for a second year, and self-executing renewal leases for an additional three years which does not allow petitioner to unilaterally terminate respondent’s rights. Petitioner’s counsel now submits an affirmation in opposition and in further reply in which he argues Alston clearly states that the LINC program violates the Urstadt Law, as it compels minimum increases specifically tied to other rent regulatory programs to which the housing rent unit is not presently subject and expands city regulatory control to premises not currently subject to that control. Further, petitioner argues the proceeding should not be dismissed because the cases cited by respondent which involved acceptance of rent, were dismissed because of the confusion caused to the tenant by the acceptance of rent after expiration of respondent’s tenancy and before commencement of the action. However, in this proceeding, the respondent is not confused as to the landlord’s insistence on recovering the subject premises since the landlord has not accepted rent. DECISION: PETITIONER’S MOTION: To obtain summary judgment it is necessary that the movant establish his cause of action or defense “sufficiently to warrant the court as a matter of law in directing judgment in his favor,” CPLR §3212(b), and he must do so by tender of evidentiary proof in admissible form. To defeat a motion for summary judgment, the opposing party must “show facts sufficient to require a trial of any issue of fact by also producing evidentiary proof in admissible form. CPLR §3212(b); Zuckerman v. City of New York, 49 NY2d 557 (1980). The subject premises are a three family house not subject to rent control or rent stabilization. A holdover proceeding may be commenced to obtain possession of the subject premises, if there is no lease in effect, after service of a thirty day notice of termination. Petitioner alleges the respondent has no effective lease and is a month to month tenant whose tenancy was terminated after service of a thirty day notice of termination. Both petitioner and respondent have annexed to their respective motions, a copy of the lease, signed by both parties, as well as the Rider and “Landlord Statement of Understanding,” signed by the petitioner. Petitioner argues that no valid lease exists because pursuant to the Appellate Division’s decision in Alston, the LINC lease violates the Urstadt law and petitioner may maintain this holdover proceeding, as respondent is a month to month tenant. Respondent, however, argues the LINC Rider and “Landlord Statement of Understanding,” does not violate the Urstadt Law as the parties voluntarily entered into the lease agreement which entitled respondent to a self-executing renewal lease for a second year and three additional one year renewal terms, and accordingly, respondent has a lease that is still in effect precluding petitioner from initiating this proceeding. Therefore, there are clearly issues of fact as to whether there is an effective lease for the subject apartment. Accordingly, petitioner’s motion for summary judgment is denied and the remainder of petitioner’s motion is denied for the reasons below. RESPONDENT’S CROSS-MOTION: Respondent has cross-moved, pursuant to CPLR §3211(a)(1) and (7), to dismiss the proceeding for failure to state cause of action, arguing that respondent is entitled to a lease renewal as part of her participation in the LINC program. On a motion to dismiss under CPLR §3211(a)(7) for failure to state a cause of action, the court is required to afford a liberal construction to the pleading, accord petitioner every possible inference, accept the allegations as true and determine only whether they fit within any “cognizable legal theory.” Leon v. Martinez, 84 NY2d (1984). Petitioner alleges that there is no lease for the subject premises, and respondent is a month to month tenant. Respondent argues that she is entitled to the self-executing provisions of the original lease which would entitle her to renewals through December 31, 2020. Respondent’s initial lease commenced on January 1, 2016 and expired on December 31, 2016. The Rider to the lease included a self executing renewal for a second year plus an additional three years, provided funding for the Program remained available and the Program Tenant is continued to be found eligible for the program. Petitioner does not deny that his client signed the lease, Rider, or “Landlord Statement of Understanding,” that includes respondent’s right to a self-executing renewal for the second year and self-executing renewals for an additional three years. Petitioner is arguing that as a result of the Appellate Division’s decision in Alston v. Starrett City, the lease his client signed violates the Urstadt law by improperly expanding city regulatory control to a non-regulated three family house which invalidates the lease between the parties. Since there is no lease in effect for the premises, petitioner argues, he should be allowed to continue this holdover proceeding as respondent is a month to month tenant. Respondent’s argument is that Alston does not apply to this case and she is entitled to a lease renewal as the parties entered into a lease under the LINC program with an initial lease term of one year with automatic renewals for an additional four years. The facts of Alston are distinguishable from the instant case. In Alston there was no landlord- tenant relationship, there was no signed lease between the parties, and the tenants were applying to move into the Mitchell-Lama complex. Starrett City moved to dismiss arguing the LINC program compelled landlords to offer covered tenants multiple lease renewals at percentages no greater than prevailing rent stabilized rates, which is a defacto expansion of buildings subject to city regulatory control, and therefore violated the Urdstadt Law. The Appellate Division held that standing alone, neither Local Law 10 nor the LINC program violated the Urstadt Law, “where the LINC program runs afoul of the Urstadt Law, however, is in its use of mandatory riders that compel a landlord to renew a lease for up to five years at a minimum increase specifically tied to other City rent regulatory programs to which the housing unit is not presently subject.” In this case, Local Law 10 is not applicable as it does not apply to premises with less than five units, therefore, the petitioner was not compelled to accept the LINC program rent voucher, in fear of violating Local Law 10. (New York City Human Rights Law §8-107 (5)(O)). Petitioner chose to accept the LINC contract and voucher voluntarily and therefore, the LINC contract does not violate the Urstadt Law as in Alston, which involved a unit building where Local Law 10 applied. Petitioner commenced this proceeding after voluntarily entering into a lease with the respondent which created a landlord-tenant relationship between the parties. Petitioner does not claim he was not aware of the Rider or the “Landlord Statement of Understanding, where he agreed to extend respondent’s lease and which entitled respondent to a self-executing renewal lease for a second year with automatic renewals for up to three years, Courts have held that self-executing renewal leases are binding on the parties. Miller v. Delarosa,, 2018 NY Slip Op 50051(U). There is no proof that petitioner did not intend to be obligated by the terms of the lease agreement before the decision in Alston. Petitioner does not argue that it received documentation from the Department of Social Services or the respondent that the program ended or that respondent was found ineligible for the LINC program. Respondent’s initial lease for the apartment began on January 1, 2016 and expired on December 31, 2016. Respondent has continued to reside in the subject apartment since the first lease expired on December 31, 2016, and is now in her fourth year of her LINC agreement. If a landlord takes no action to terminate a tenancy subject to the LINC program, a renewal lease will be automatically executed pursuant to the parties lease rider. Emeagwali v. Burgos, NYLJ, 1202776344648 (Civ., QU, Decided December 21, 2016). Further, petitioner alleges, he has not accepted any rent but does not specify when the last payment was received. Respondent has annexed to her moving papers a Department of Social Services printout that indicates LINC payments were sent and cashed in the amount of $1041 per month. Petitioner simply argues that pursuant to Alston the LINC contract violates the Urstadt Law. Petitioner has failed to cite any other decisions in support other than Alston or include any other analysis, other than arguing the lease violates the Urstadt Law. Petitioner has continued to reap the benefits of the contract with the LINC program, only deciding to argue that there was no lease agreement after Alston was decided. The court in Alston did not preclude a landlord from voluntarily binding itself to terms such as the landlord in this case, nor did Alston hold that LINC Riders, or “Landlord Statement of Understanding,” which parties freely and willingly enter into, are automatically void. Therefore, pursuant to the LINC lease, Rider, and “Landlord Statement of Understanding,” signed by both parties, and voluntarily entered into respondent was entitled respondent to an automatic self-executing renewal for a second year from to January 1, 2017 to December 31, 2017 and additional three one year renewals, beginning on January 1, 2018. Therefore, since there was a lease in effect when petitioner commenced this proceeding, respondent is not a month to month tenant whose lease could be terminated before expiration of the lease. Accordingly, respondent’s motion to dismiss based upon failure to state a cause of action is granted as respondent occupies the subject premises pursuant to a valid and existing lease agreement and is not a month to month tenant whose tenancy can be terminated solely by service of a thirty day notice of termination. The court need not reach the balance of respondent’s arguments as they are moot. This constitutes the Decision and Order of the Court. The court to send a copy of the decision to both sides. Dated: October 3, 2019 Bronx, New York
