BACKGROUNDThe underlying summary nonpayment proceeding was commenced by PROMENADE GLOBAL LLC (Petitioner) against MARA ABRAHAM (Respondent) the tenant of record of 150 West 225th Street, Apt. 10G, New York, New York 10463(Subject Premises) based on the allegations that Respondent has failed to pay rent due pursuant to a written lease agreement.

On January 30, 2014, Respondent appeared pro se and filed an answer. The answer asserted improper service, breach of warranty of habitability, and related claims. The proceeding was originally returnable February 7, 2014.

Respondent failed to appear on the initial return date, and the court (Kaplan, J) entered a judgment against Respondent on default in the amount of $47,729.21 as all rent due through January 2014, issuance of the warrant was stayed five days for payment.

On February 20, 2014, Respondent moved to vacate the default. Respondent asserted that Petitioner's claim had been previously dismissed, and that she did not understand why she had to keep wasting time coming to court. Respondent asserted that she had no obligation to pay rent, because she is not a company and was not profiting by living in the Subject Premises. The motion was granted without opposition, and trial was scheduled for March 20, 2014. The order further held that Respondent had failed to preserve her traverse claim and that said claim was stricken.

On March 20, 2014, the proceeding was adjourned to April 10, 2014, for trial as there were no trial judges available. On April 10, 2014, the proceeding was adjourned to may 28, 2014, based on Petitioner's application and because Petitioner's agent was unavailable for trial. The matter was marked final versus Petitioner.

On May 28, 2014, the proceeding was assigned to Part L for trial. Petitioner asserted certain necessary DHCR documents were not available. Petitioner's application was granted, and the trial was adjourned to June 25, 2014 at 9:30 am. Respondent did not appear until approximately 10:45 am. The trial commenced and concluded on said date, and at the conclusion of the trial the court reserved decision.

PRIOR RELATED PROCEEDINGS

Prior to the commencement of this proceeding, there were several other proceedings instituted against Respondent. As noted on the record at trial, the court takes judicial notice of these proceedings, and has requisitioned the files and reviewed their contents.

This was a nonpayment proceeding commenced by Petitioner's predecessor in interest. That proceeding asserted that Respondent was a recipient of a Section 8 subsidy administered by DHCR, and sued for $928.96 for a period covering August 2010 through November 2010 at a monthly rent of $280.10.

The file indicates that Respondent filed a written answer, but the court did not see any written answer in the court file. Respondent failed to appear on the initial court date and a judgment was entered for $1209.06 for all rent due through December 2010, on default.

On June 6, 2011, Respondent moved to vacate the default judgment. The motion was granted on consent. The parties stipulated to entry of a new final judgment totaling $2062.16 for all rent due through June 2011, which Respondent agreed to pay by July 23, 2011. The warrant of eviction issued on July 15, 2011.

On August 3, 2011, Respondent moved for an extension of time to pay the arrears. The motion was adjourned over the course of several months. On December 6, 2011, the parties signed a stipulation adjourning the proceeding for trial. It is unclear why this was stipulated to after the proceeding had been resolved.

The file contains a letter dated January 6, 201, from DHCR to Respondent, with a copy of a decision issued by hearing officer Kathleen Lamar, dated April 12, 2011 regarding the termination of Respondent's Section 8 subsidy. The decision provides that the social security number provided by Respondent could not be verified. Respondent was given a long period of time to provide documentation verifying her social security number and failed to do so. Based on same, the termination of Respondent's Section 8 subsidy was affirmed by DHCR.

On January 19, 2012, the proceeding was transferred to the expediter's part for trial. On said date, the court (Schneider, J) granted Respondent's August 3, 2011 order to show cause to the extent of vacating the judgment and warrant, and finding that all rent due through June 2011 had been paid with an HRA grant. The order further provided "This determination is without prejudice to petitioner's right to bring a new case for current rent based on claimed DHCR termination. Resp. Advised to consult counsel immediately."

Within one month of the court's decision in the prior proceeding, Promenade Associates issued a new rent demand dated February 15, 2012 seeking $12, 207.07 in arrears for a period covering June 2011 through February 2012, at a monthly rent of $1509.10. The petition is dated March 8, 2012. Respondent filed an answer asserting the rent sued for had been paid and the proceeding was initially returnable March 28, 2012.

The proceeding was adjourned to May 4, 2012, for the landlord to subpoena DHCR. The file contains certified business Records from DHCR certified April 1, 2013. The same decision and cover letter are annexed regarding the termination of Respondent's Section 8 subsidy, as well as additionally related documents.

The proceeding was adjourned to May 22, 2012, and Respondent failed to appear on said date. A judgment was entered against Respondent on default in the amount of $13,716.17 for rent due through March 2012.

On June 4, 2012, Respondent moved to vacate the default. On July 10, 2012, the motion was granted by the court , and trial was scheduled for August 6, 2012. On August 6, 2012, the proceeding was transferred to Part X for assignment to a trial judge. It was adjourned in Part X to September 5, 2012 for trial. On September 5, 2012, Respondent failed to appear and a judgment was entered against her for $4111.50 for all rent due through September 30, 2012. On September 6, 2012, Respondent made an ex parte application for the court to sign an order to show cause vacating the default, which was denied without prejudice to renewal on proof of ability to pay the arrears.

The warrant of eviction issued October 22, 2012.

On December 12, 2012, Respondent again moved to vacate the default judgment. The motion was granted by the court. The judgment and warrant were vacated and the proceeding was adjourned to January 14, 2013 for trial. On January 14, 2013, the proceeding was sent to the expediter for assignment to trial. On April 4, 2013, the proceeding was discontinued. There is no indication as to the basis for the discontinuance on the file.

On April 9, 2013, Promenade Associates issued a Ten day Notice to Cure, followed by a 30 day Notice of Termination, dated April 29, 2013. The Notices advised Respondent's tenancy was being terminated for failure to comply with Section 8 requirements, which constituted , and that termination of the subsidy, based on Respondent's failure to comply constitutes good cause to terminate Respondent's tenancy.

The petition is dated June 19, 2013, and the proceeding was initially returnable June 24, 2013. The proceeding was adjourned pursuant to a stipulation to August 6, 2013, for trial. On August 6, 2013, the proceeding was transferred to the expediter's part for trial. On October 2, 2013, the proceeding was assigned to Part P for trial. The proceeding was dismissed by the court (Stoller, J) on said date because the landlord was not ready for trial.

On November 6, 2013, Petitioner herein moved to restore the proceeding to the trial [*2]calendar and for an order substituting Petitioner in place of Promenade Associates as the "beneficial owner" of the Subject Premises. The motion was denied by the court, pursuant to a written order that held that the moving papers and pleadings did not adequately address the issue of the alleged termination of the Section 8 subsidy.

This proceeding followed.

The building was previously subject to Mitchell Lama Regulation and is now subject to Rent Stabilization.

While under the Mitchell Lama Program Respondent was the recipient of a Section 8 Subsidy. That subsidy continued through 2010, effective December 1, 2009, Respondent's share of the rent was $265.10 per month (Ex 7B), and effective October 1, 2010, Respondent's share was $265.00 per month (Ex 7A).

Based on Respondent's failure to submit documentation verifying her social security number and identity, Respondent's subsidy was terminated pursuant to a Notice of Termination dated August 15, 2009. Said termination was affirmed by DHCR pursuant to the April 12, 2011 decision of the Hearing Officer.

All rent claims for arrears through June 2011 were resolved in Index Number 90952/2010. Section 8 made no payments for rent on behalf of Respondent after May 2011 (Exs 2 & 3), and Respondent has made no rent payment since August 2011.

There has been no agreement regarding the payment of rent between the parties, or between Respondent and Petitioner's predecessor in interest since June 2011. Petitioner failed to offer any written lease agreement between the parties covering any period after 1993, and failed to establish any agreement to pay the rent sued for. Respondent's claim that there is no written or oral agreement regarding the payment of rent was uncontested at trial.

DISCUSSIONThis proceeding is dismissed as the Court finds Petitioner failed to establish a prima facie case. The greatest defect in Petitioner's case was a failure to prove that an agreement to pay rent existed between the parties. In order to maintain a summary nonpayment proceeding the landlord must establish an agreement to pay rent (RPAPL §711(2); 615 Nostrand Avenue Corp v Roach 15 Misc 3d 1).

Petitioner failed to establish the allegations in paragraph one and two of the petition. Paragraph one of the petition alleges that Petitioner is the landlord of the Subject Premises. Paragraph two alleges a written lease agreement between the parties for a rental of $1565.60 per month. Petitioner failed to establish either of these allegations.

Paragraph six of the petition alleges that the subject premises is not governed by rent stabilization because it comes under the provisions of the Mitchell-Lama Law. At trial Petitioner's agent testified that the Subject Premises is governed by rent stabilization. Petitioner made no motion at trial to amend the allegations in the petition regarding status, and Petitioner [*3]offered no documentary evidence to support the testimony. The court takes judicial notice that there is a regulatory agreement between DHPD and Petitioner that provides for certain "eligible tenants" to be subject to rent stabilization.^[FN1] Petitioner offered no evidence as to whether Respondent is an eligible tenant under said agreement, and no evidence that the rent sued for was a legal registered rent under Rent Stabilization.

Moreover, immediately prior to commencing this nonpayment proceeding, Petitioner attempted to substitute in and continue prosecution of the holdover proceeding under Index Number 70930/2013. Petitioner offered no explanation as to why it took the position that Respondent's tenancy had been terminated in the prior proceeding, and then took the completely opposite position by suing for rent in this proceeding.

Petitioner's remedy, given the termination of the subsidy based on Respondent's failure to comply, is a holdover proceeding, absent a new enforceable agreement to pay rent between the parties (see eg 835-37 Trinity Ave HDFC v Royal 26 Misc 3d 1240(A); Pinnacle Bronx West LLC v Jennings 29 Misc 3d 161).

Based on the foregoing, the proceeding is dismissed.

This constitutes the decision and order of this court.^[FN2]

Dated: June 27, 2014

New York, New York________________________

Hon. Sabrina Kraus