Recitation, as required by CPLR 2219 (a), of the papers considered in review of this motion.

After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:

This is a holdover proceeding brought against Respondent, Eugenia Lee, alleging that her license to occupy the premises expired upon the death of her husband, Joseph Lee. The premises [*2]is a HUD-subsidized "Section 202" project which provides supportive housing for the elderly (defined in the relevant statutes and regulations as 62 years of age or older at the time of initial occupancy). Respondent, Eugenia Lee, was born on March 19, 1958. She moved into the subject premises with her husband, Joseph Lee, in May 2004, and has resided there continuously for the last 14 years. Mr. Lee, the tenant of record and head of household, passed away in September 2013 when Respondent was 55 years old. Respondent is currently 60 years old.

Petitioner moves for summary judgment as a matter of law on the grounds that Respondent cannot remain in the apartment after the death of her husband because she does not meet the definition of "elderly." Petitioner also moves for use and occupancy, not under any provision of law, but because "Petitioner cannot afford to lose this much income and remain operational" as a not for profit Housing Development Fund Corporation.

Respondent opposes on the basis that there exist material issues of fact sufficient to defeat Petitioner's motion. Respondent claims that Petitioner, by referring to Respondent as the "tenant," "spouse," and "co-head [of household]" in correspondence with the Department of Social Services ("DSS"), by accepting shelter payments made by DSS on her behalf for two years, and by accepting documents for recertification (though "no one ever contacted [her]") has waived its right to proceed against Respondent as a licensee.^[FN1] Respondent also cross-moves for leave to serve a late Answer. In reply, Petitioner argues that Respondent has not raised triable issues of fact sufficient to defeat a motion for summary judgment, and that Respondent's opposition consists only of an affirmation from her attorney. On October 1, 2018, two weeks after Petitioner served its affirmation in reply and opposition papers, Respondent served and filed an affidavit from Respondent supporting his cross-motion and detailing Respondent's disabilities. Petitioner has objected to this affidavit as an impermissible sur-reply.^[FN2]

Oral argument was heard on October 4, 2018.

With respect to Respondent's application to interpose its Answer, RPAPL 743 provides that the deadline to answer a holdover petition is "the time when the petition is to be heard." When the proceeding itself is adjourned, however, the time to answer is likewise adjourned, unless otherwise directed by the court or agreed upon by the parties. (Gluck v Wiroslaw, 113 Misc 2d 499 [Civ Ct, Kings County 1982] [answer timely where no demand for answer three [*3]days prior to the hearing was made];^[FN3]  see also City of New York v Candelario, 156 Misc 2d 330 [App Term, 2d Dept 1993] affd in part, revd on other grounds 223 AD2d 617 [2d Dept 1996]; 974 Anderson LLC v Davis, 53 Misc 3d 1220[A], 2016 NY Slip Op 51765[U] [Civ Ct, Bronx County 2016], citing Picken v Staley, 2011 NY Slip Op 33237[U] [Civ Ct, NY County 2011].) Accordingly, Respondent's cross-motion is granted at the outset to the extent of deeming Respondent's proposed answer timely served and filed.

Summary judgment is properly granted after joinder of issue where "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].) Summary judgment is a remedy which should only be employed when there is no doubt as to the absence of triable issues. (Andre v Pomeroy, 35 NY2d 361, 364 [1974].) On such a motion, the court's function is to find, rather than to decide, issues of fact. (Southbridge Towers, Inc. v Renda, 21 Misc 3d 1138[A], 2008 NY Slip Op 52418[U] [Civ Ct, NY County 2008] citing Epstein v Scally, 99 AD2d 713 [1st Dept 1984].) Petitioner asks this Court to enter summary judgment in its favor on the grounds that Respondent cannot remain in the apartment after the death of her husband because she is not "elderly" within the meaning of the Section 202 Supportive Housing for the Elderly Program.

The Section 202 Supportive Housing for the Elderly Program ("Section 202") is authorized by the Housing Act of 1959 and is codified at 12 USC 1701q. The purpose of the Section 202 program is to provide housing for the "very low income elderly," and all units in the project must be made available to individuals who meet this definition. (12 USC 1701q [d] [1].) An "elderly person" is defined as "a household composed of one or more persons at least one of whom is 62 years of age or more at the time of initial occupancy." (12 USC 1701 [q] [k] [1]; 24 CFR § 891.205.)

The Housing Act of 1959 was amended in 1990 and further narrowed the class of people that Section 202 housing is meant to benefit.^[FN4] Whereas "elderly families" previously included "the surviving member or members of any family . . . who were living, in a unit assisted under this section, with the deceased member of the family at the time of his or her death," (Pub L 94-375 § 11 [b] [former Section 202 [d] [4] of the Housing Act of 1959]), the amendments made clear that at least one member of the household must at all times be 62 years of age or older. (Findlay Teller Hous. Dev. Fund Corp. v Chevere, 29 Misc 3d 1203[A], 2010 NY Slip Op 51674[U] [2010] [Civ Ct, Bronx County 2010] [granting summary judgment to landlord as remaining family member was not "elderly" as defined by Section 202]; 607 Concord Senior Hous. v Morales, 16 Misc 3d 1121[A], 2007 NY Slip Op 5153[U] [Civ Ct, Bronx County 2007] [*4][finding after trial that remaining family member under the age of 62 was "categorically barred [by the amendments] from succeeding to the Apartment"].) As stated by the Hon. Jaya Madhavan in Morales,

"To ensure that this class alone benefits from the statute, most premises, as here, are further governed by a regulatory agreement between HUD and the owner under which the latter must limit occupancy of the project to elderly families and individuals as defined in Section 202 of the Housing Act of 1959, as amended, and applicable HUD regulations." (emphasis added)

At oral argument, Petitioner pointed out that, in addition to federal law, a HUD Regulatory Agreement (Petitioner's exhibit L), the deed (Petitioner's exhibit G), a Land Disposition Agreement (Petitioner's exhibit I), a HUD Use Agreement (Petitioner's exhibit K), limit occupancy of the premises to persons who are 62 years of age or older. All of these documents, which were executed in 1995, limit occupancy to elderly families and individuals as defined by Section 202 of the United States Housing Act, as amended in 1990.

Respondent's attorney argued that the defense of creation of a tenancy by waiver, set forth in his affirmation in opposition, raises material issues of fact which must be considered at trial and, thus, the motion for summary judgment must be denied. While it is possible to create a tenancy by waiver in some cases where affirmative acts are taken by a landlord to recognize a tenancy (see e.g. Equity Props. Corp. v Joy, 48 AD2d 630 [1st Dept 1975] affd 39 NY2d 762 [1976] [finding that landlord ratified rent control status of subsequent tenant by taking full advantage of rent increases]), it is an issue that is not susceptible to summary judgment, (see e.g. 23 Manhattan Val. N., LLC v Bass, 28 Misc 3d 139[A], 2010 NY Slip Op 51508[U] [App Term, 1st Dept 2010].) In this case, Respondent's argument does not defeat Petitioner's motion for summary judgment as the premises is designated by statute as housing for the elderly, and "said designation is not subject to waiver." (Chevere, 2010 NY Slip Op 51674[U], *3].)

Respondent's attorney also argued that the two decisions heavily relied upon by Petitioner in favor of its motion — Chevere and Morales — are distinguishable from the instant case. Respondent's attorney maintained that, unlike in this proceeding in which the Respondent claims a creation of a tenancy by waiver, the tenants in those proceedings were pro se, and merely "expressed a desire to remain in the apartment" while not raising any defenses to the proceeding. In fact, in both Chevere and Morales the pro se tenant argued that the landlord had waived its right to pursue their eviction, and both courts held that the statutory mandate could not be waived. (Morales, 2007 NY Slip Op 5153[U], *2, Chevere, 2010 NY Slip Op 51674[U], *3.)^[FN5]

For the foregoing reasons, Petitioner's motion for summary judgment is granted, and Petitioner is granted a final judgement of possession. The warrant may issue forthwith.

In the interests of justice, however, given Respondent's age, disabilities, and the long-term nature of her occupancy, execution of the warrant is stayed through December 15, 2018 to enable Respondent to locate alternate housing and vacate the premises. Petitioner's motion for use and occupancy is denied at this juncture, subject to renewal should Respondent seek additional time to vacate the premises.

This constitutes the Decision and Order of this Court. Copies of this decision will be mailed to the parties.