Petitioner commenced this licensee holdover proceeding to recover the subject Mitchell-Lama apartment, 18E, located at 100 Beekman Street, New York, NY 10038, alleging Respondents Lauren Renda, "John Doe"/ "Jane Doe", entered into occupancy of the premises without the knowledge, consent or permission of the landlord and/or DHCR. The prior shareholder of record, Etta Feinberg, Respondent's grandmother, died on June 9, 1999.

Petitioner moves pursuant to CPLR 3212 and CPLR 406 seeking summary judgment. Respondent cross-moves for an order granting summary judgment dismissing the petition alleging the predicate notice is defective in that Petitioner should have served Respondent a 30 day notice instead of a 10 day notice because she is a month-to-month tenant and not an illegal occupant and/or a licensee as the landlord alleges.

There is no dispute that Respondent has no legal right to remain in the subject premises. On July 6, 2000, DHCR sent a letter to Respondent indicating that Respondent's Preliminary Succession Rights Application had been disapproved for failure to provide adequate proof of co-residency for two complete years prior to the death of her grandmother. See, Petitioner's Motion Exhibit 3. There is also no dispute that DHCR issued a decision dated August 18, 2003 which denied Respondent's appeal of her denied request for succession rights. See, Petitioner's Motion Exhibit 5. On June 2, 2004, Respondent's Article 78 petition to Annul the Order Denying Appeal of DHCR's order was denied. See, Petitioner's Motion Exhibit 6. There is also no dispute that Respondent has paid and Petitioner has accepted use and occupancy from Respondent since the year 2000 through January 2008.

At issue is whether this payment and acceptance of rent created a month-to-month tenancy on behalf of Respondent. Respondent argues that Petitioner's acceptance of maintenance checks from her for the subject premises from the year 2000 through the commencement of this proceeding in 2008 gives her status as a month-to-month tenant and not a licensee. RPAPL § 713(7) allows for eviction of a "licensee" or a person who enters the premises with permission of a person entitled to possession, or a "licensor." In order for a licensee proceeding to be maintained, the license of the occupant must have expired or have been revoked.

Here, Respondent's license to remain in the apartment ended upon the death of her [*2]

grandmother Etta Feinberg on June 9, 1999. Both Respondent and Petitioner were on notice since July of 2000 that Respondent was not in the apartment legally and that Respondent did not have succession rights to Apt. 18A when DHCR first issued a letter to Respondent denying her Succession Rights Application. When Respondent's succession rights were denied, she became an illegal occupant. See, Schorr v. New York City Department of Housing Preservation and Development et al., 10 NY3d 776 (2008). In June of 2004, the Supreme Court denied Respondent's Article 78 petition appealing the denial of her succession rights. Respondent was on notice that at the date of the denial of her Article 78 proceeding on June 2, 2004, her time to leave the apartment was imminent.

RPL § 220 states that a landlord may recover a reasonable compensation for the use and occupancy of real property under an agreement not made by deed. The payment and acceptance of use and occupancy during the pendency of the legal right to remain in the subject premises in no way created a tenancy. This acceptance of maintenance payments in no way formed an agreement between Petitioner and Respondent that a month to month tenancy was created.Summary judgment is a drastic remedy which a court should employ only when there is no doubt as to the absence of triable issues of fact. Andre v. Pomeroy, 35 NY2d 361 (1974). On such a motion, the court's function is to find rather than decide issues of fact. Epstein v. Scally, 99 AD2d 713 (1st Dept 1984). A party opposing summary judgment must assemble and lay bare its proof to establish that matters alleged are real and capable of being established at trial. Hasbrouck v. City of Gloversville, 63 NY2d 916 (1984).

The Court finds there exist no triable issues of fact. Respondent lived in the subject premises and paid maintenance while she resided there. The Petitioner had a legal right to accept the "use and occupancy" paid by Respondent. There is no evidence that the landlord took any

other action besides acceptance of "use and occupancy" from Respondent which would confer that a landlord tenant relationship was formed.

This is a Mitchell-Lama apartment in which Respondent was denied succession rights. Respondent now seeks a right of month to month tenancy where she was denied a right as a successive tenant to this Mitchell-Lama cooperative apartment. An illegal tenancy cannot be changed by estoppel even where Petitioner was untimely in commencing the proceeding to terminate the license or accepted payments from the illegal tenant. Also, see, Schorr, 10 NY3d at 779.

Therefore, based on the above, Petitioner's motion for summary judgment is granted and Petitioner is awarded a final judgment of possession. Respondent's cross-motion for summary judgment is denied. Respondent shall pay "use and occupancy" in the amount of $585.63 for the months of February through the end of the stay. The warrant of eviction shall issue five days after filing proof of service of this Order with notice of entry on Respondent. The execution of the warrant of eviction shall be stayed until May 2009. The motion by Petitioner for attorney fees is denied unless Petitioner shows an agreement entitling them to receive them.

This constitutes the decision and order of the Court.

Dated: New York, New York_________________________________

November 7, 2008PAM JACKMAN BROWN, JHC

Copies mailed to both sides: