Appeal from an order of the Civil Court of the City of New York, Kings County (Marc Finkelstein, J.), entered January 11, 2010. The order, insofar as appealed from, denied the branches of tenants' motion seeking summary judgment dismissing the petition.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of tenants' motion seeking summary judgment dismissing the petition's claim for rent for the months of May 2009 through August 2009 is granted; as so modified, the order is affirmed, without costs.

In this owner-use holdover proceeding commenced in September 2009 to recover possession and arrears, tenants moved for summary judgment dismissing the petition based, in part, on paragraph 7 of a prior stipulation settling tenants' rent-overcharge claims. Paragraph 7 provided that, at the expiration of their two-year lease on August 31, 2009, tenants would have the option of a one- or two-year renewal lease based upon the appropriate guidelines increase as determined by the New York City Rent Guidelines Board. While tenants contend that paragraph 7 must be read as a waiver of landlords' right to recover the apartment based on owner's use upon the August 31, 2009 expiration of their two-year lease, the stipulation makes no mention of such a waiver, and it cannot be said as a matter of law that paragraph 7 was not merely a clarification of the parties' rights in furtherance of the stipulation's provisions settling tenants' overcharge [*2]claims. However, tenants were entitled, based on their undisputed showing of payment, to summary judgment dismissing landlords' claims for rent for the period from May 2009 through August 2009. We modify the Civil Court's order accordingly.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: April 26, 2011