Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's motion for summary judgment pursuant to CPLR § 409(b), for a judgment of possession and warrant of eviction, and related relief, and respondent Khan Hossain Tanjir's cross motion to dismiss pursuant to CPLR § 3211:

Upon the foregoing cited papers, the decision and order on petitioner's motion for summary judgment and respondent's cross motion to dismiss (consolidated for determination herein) is as follows.

This summary nonpayment proceeding was filed in November 2022. On December 20, 2022, respondent Khan Hossain Tanjir (hereinafter "respondent") appeared and answered through counsel. The case was transferred from the resolution Part in April 2023. This court conducted a pretrial conference on August 30, 2023 and scheduled the case for trial on December 13, 2023. Prior to the trial, petitioner moved for summary judgment. After an adjournment for briefing, respondent opposed the motion and made a cross motion to dismiss, albeit late. Petitioner filed a notice of rejection of the late filings. On January 16, 2024, the court heard arguments on the motions, excused the late filing of the opposition papers and cross motion for reasons stated on the record, and reserved decision on both motions.

Petitioner's motion seeks summary judgment pursuant to CPLR § 409(b), which permits the court to "make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues are raised" (see Matter of Bahar v. Schwartzreich, 204 AD2d 441, 443 [2d Dept 1994]). In a summary proceeding brought pursuant to Article 7 of the RPAPL, each of the elements of petitioner's cause of action must be established for relief to be granted (see 1646 Union, LLC v. Simpson, 62 Misc 3d 142[A], 2019 NY Slip Op 50089[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). While petitioner attests to being an owner of the subject premises, the deed that is annexed as proof is not certified, nor is it authenticated as the original. Accordingly, it is not admissible proof of petitioner's allegation in the petition that they are the "owner/landlord" of the subject premises (Petition, ¶ 1). Summary judgment may only be granted upon "tender of evidentiary proof in admissible form." Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].

Additionally, the proceeding is based upon an allegations that the respondents "entered into possession under a month-to-month tenancy to pay to landlord as rent $3,000.00 per month, payable on the first day of each month" (Petition, ¶ 2) and that they defaulted in payment under said agreement (Petition, ¶ 3). However, the affidavits and exhibits annexed to petitioner's motion set forth a different theory of the agreement under which respondents are allegedly in default. The motion references a series of written leases running as follows: December 15, 2017 to December 31, 2018; January 1, 2019 to December 31, 2019; and February 1, 2020 to January 31, 2020 [sic]. Petitioner's affidavit attests to a confounding explanation of the status after the last lease expired. It first explains that an ERAP (Emergency Rental Assistance Program) payment was made in January 2022 (Yun Zheng Aff., ¶ 9), then states that "Respondents failed to pay rent after the ERAP program paid their fee. Whether Respondents wish to argue their prior one-year lease was 'magically' renewed — or if the lease expired by virtue of its terms on or about February 1, 2021 making Respondents 'month to month' tenants" (Yun Zheng Aff., ¶ 10).

A fundamental prima facie requirement in a summary nonpayment proceeding is the existence of a rental agreement in effect at the time of the commencement of the proceeding (see Fairfield Beach 9th, LLC v. Shepard-Neely, 77 Misc 3d 136[A], 2022 NY Slip Op 51351[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; 265 Realty, LLC v. Trec, 39 Misc 3d 150[A], 2013 NY Slip Op 50974[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Insofar as petitioner's motion does not adequately describe the nature of any rental agreement in effect at the commencement of this proceeding, summary judgment is not warranted. The mere lack of payment after the expiration of a prior rental agreement, without more, does not give rise to a month-to-month tenancy (265 Realty, LLC, 2013 NY Slip Op 50974[U], *2-3 ["'[T]he [*3]relation of landlord and tenant is always created by contract, express or implied[.]'"] [quoting Stern v. Equitable Trust Co. of NY, 238 NY 267, 269 [1924]]). To the extent that petitioner suggests an agreement based on the ERAP payment was created (only hypothetically, it should be noted), this is not alleged in the petition. Moreover, the concept of an ERAP rental "agreement" has been subject to divergent lower court decisions (compare JSB Props. LLC v. Yershov, 77 Misc 3d 235 [Civ Ct, NY County 2022], with 417 E. Realty LLC v. Kejriwal, 80 Misc 3d 583 [Civ Ct, NY County 2023]) and has no clear appellate endorsement. As petitioner does not even make a cogent claim for an ERAP "agreement" being created here, the court will not opine on the overarching legal issue of whether such an agreement is cognizable under RPAPL § 711(2).^[FN1] Accordingly, petitioner's claims are not subject to summary determination on this motion record.^[FN2] As a result, petitioner's motion is denied in its entirety.

Respondent's cross motion seeks dismissal on the basis that petitioner lacks a lease or rental agreement under which it may proceed in this summary nonpayment proceeding. The court gave petitioner's attorney an opportunity to oppose the motion in writing after it excused the late filing of the cross motion. Petitioner's attorney declined written opposition but orally opposed the motion on the record. The court will consider the oral opposition (see Messam v. Omeally, 52 Misc 3d 144[A], 2016 NY Slip Op 51282[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

In effect, respondent's motion is brought pursuant to CPLR § 3211(a)(7) (failure to state a cause of action). On a CPLR § 3211(a)(7) motion, the petition "is to be afforded a liberal construction, the facts alleged are presumed to be true, the [petitioner] is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory." Watts v. City of New York, 186 AD3d 1577, 1578 [2d Dept 2020]. When evidentiary material is offered and considered on such a motion, "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one[.]" Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977].

Respondent's motion is supported by an attorney affirmation and respondent's affidavit. Respondent's affidavit is styled as an "affidavit in opposition," presumably to the motion for summary judgment, but is offered in support of the cross motion. The bulk of the affidavit raises warranty of habitability issues but makes only one statement about the lack of an agreement: "When this action [sic] started I definitely did not have any lease with the petitioner in effect." (Hossain Aff., ¶ 3). As previously noted, petitioner alleges the existence of a month-to-month tenancy in the petition. While the court has found petitioner's proof of such a tenancy to be lacking on the motion for summary judgment, the court must afford petitioner the benefit of every inference on this CPLR § 3211(a)(7) motion. Insofar as there is appellate caselaw in the Second Department that countenances the maintenance of an RPAPL § 711(2) proceeding after a breach in payment under a month-to-month tenancy (see Priegue v. Paulus, 43 Misc 3d 135[A], [*4]2014 NY Slip Op 50662[U] [App Term, 2d Dept, 2d, 9th & 10th Jud Dists 2014]; Tricarichi v. Moran, 38 Misc 3d 31, 34 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]; but cf. West 152nd Assoc., L.P. v. Gassama, 65 Misc 3d 155[A], 2019 NY Slip Op 51926[U] [App Term, 1st Dept 2019]; ZB Prospect Realty v. Olenick, 79 Misc 3d 592, 595-596 [Civ Ct, Kings County 2023]), the court finds that dismissal is not warranted at this juncture.

For the foregoing reasons, both petitioner's motion for summary judgment and respondent's cross motion to dismiss are denied. The proceeding will be restored to Part O, Room 202, for trial on April 19, 2024 at 9:30 AM. This Decision/Order will be filed to NYSCEF.