Kucker, Marino, Winiarsky & Bittens, LLP (Robert R. Moore, Jr., Valentine A. Pagan and Nicholas Yokos of counsel), for appellant.

Lily Elbaz, respondent pro se.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael L. Weisberg, J.), entered August 28, 2024. The order denied landlord's CPLR 4404 motion to set aside a decision dated July 21, 2024 and a final judgment dismissing the petition entered July 23, 2024 pursuant to the decision, and for a new decision directing entry of a final judgment in favor of landlord in a nonpayment summary proceeding.

ORDERED that the order is affirmed, without costs.

In this July 2022 nonpayment proceeding, landlord sought to recover possession of a rent-stabilized apartment based upon the nonpayment of $23,012 in rent which accrued during the periods of December 2019 through June 2020 and October 2021 through June 2022. The rent that accrued between July 2020 and September 2021 was paid to landlord by the Emergency Rental Assistance Program (ERAP) (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, as amended by L 2021, ch 417, § 2, part A). At a nonjury trial, landlord demonstrated that the parties' lease expired in June 2020, that no renewal lease was offered, and that landlord accepted the ERAP payment in September 2021. In a decision following the trial, dated July 21, 2024, the Civil Court (Michael L. Weisberg, J.) found that landlord had not established a prima facie case. A final judgment dismissing the petition was entered on July 23, 2024. Landlord subsequently moved pursuant to CPLR 4404 to set aside the decision and final judgment, and for a new decision directing entry of a judgment in favor of landlord, arguing that accepting ERAP funds constituted an agreement to continue the landlord-tenant relationship for 12 months. In an order [*2]entered August 29, 2024, the Civil Court (Michael L. Weisberg, J.) denied landlord's motion.

A nonpayment proceeding must be predicated on a default in rent owed "pursuant to the agreement under which the premises are held" (RPAPL 711 [2]; see Matter of Jaroslow v Lehigh Val. R.R. Co., 23 NY2d 991, 993 [1969]; Rutland Rd. Assoc., L.P. v Grier, 55 Misc 3d 128[A], 2017 NY Slip Op 50370[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; 615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1, 4 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Contrary to landlord's argument, acceptance of ERAP benefits does not establish an "agreement under which the premises are held," as required by RPAPL 711 (2). While acceptance of ERAP funds restricts landlords by requiring that the rent amount not be raised and that landlord may not evict tenant in a holdover proceeding based upon an expired lease for 12 months after acceptance of the funds (see L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 9 [2] [d], as amended by L 2021, ch 417, § 2, part A, § 5), it does not constitute an agreement by tenant to pay rent for this period. Consequently, under the circumstances presented, there was no "rental agreement in effect at the time the proceeding [was] commenced pursuant to which rent [was] due and owing" (Fairfield Beach 9th, LLC v Shepard-Neely, 77 Misc 3d 136[A], 2022 NY Slip Op 51351[U], *4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]) and, thus, this nonpayment proceeding fails to satisfy the requirements of RPAPL 711 (2).

Accordingly, the order is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.