The following papers numbered 1-4 were read and considered on respondent's motion for partial summary judgment (CPLR § 3212[e]).

On March 15, 2022 petitioner, represented by Andrew Romano, Esq., filed a Notice of Petition and Petition against respondent regarding a non-payment matter under index number LT-0544-22. Respondent submitted an Emergency Rental Assistance Program (hereinafter "ERAP") application and the matter was stayed. Thereafter, on January 26, 2024, petitioner represented by James G. Dibbini, Esq., filed the instant non-payment matter against respondent under index number LT-0356-24. The instant matter seeks $124,746.35 for non-payment of rent for October 2019 through January 2024. On April 3, 2024 respondent filed the instant motion for partial summary judgment (CPLR § 3212[e]). Petitioner filed opposition on April 30, 2024 and respondent replied on May 15, 2024.

Summary Judgment

The proponent of summary judgment must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law (O'Halloran v. City of New York, 78 AD3d 536 [1st Dept. 2010] citing Zuckerman v. City of New York, 49 NY2d 557 [1980]). Once this showing has been made, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (Giuffrida v. Citibank Corp., 100 NY2d 72, 81 [2003] citing Alvarez v. Prospect Hosp., 68 NY2d. 320, 324 [1986]). Additionally, the Court must consider the evidence in the light most favorable to the non-moving party and draw every favorable inference therefrom to which that party is entitled (id.).

Summary Judgment Analysis

Lease Agreement

Respondent seeks partial summary judgment based on petitioner's lack of authority to demand the full rental amount for months after respondent's Section 8 subsidy terminated. Respondent concedes her Section 8 subsidy terminated on September 30, 2019 (Respondent's Motion, para. 3, 12; Affidavit, para. 3; Exhibit A). Respondent argues petitioner may only seek respondent's monthly rent share of $427.00 for the months after the Section 8 subsidy terminated as respondent did not enter into any new agreement with petitioner after said termination.

Respondent relies on established caselaw which hold "[a] Section 8 tenant agrees in the Section 8 lease only to pay the tenant share of the rent [and] [a]bsent a showing by the landlord of a new agreement . . . a Section 8 tenant does not become liable for the Section 8 share of the rent as 'rent' even after the termination of the subsidy. [Therefore], a nonpayment proceeding does not lie to recover the Section 8 portion of the rent from the tenant" (Rainbow Assocs. v. Culkin, 2003 WL 2004427 [App. Term 2nd and 11th Jud. Dists. 2003]; 7 Highland Management Corp. v. McCray, 9 Misc 3d 129[A] [App. Term 9th and 10th Jud. Dists. 2005]; Schickler v. Thorpe, 2002 WL 768298 [App. Term. 9th and 10th Jud. Dists. 2002]; Pinnacle Bronx W., LLC v. Jennings, 29 Misc 3d 61 [App. Term 1st Dep't 2010]; Prospect Place HDFC v. Gaildon, 6 Misc 3d 135[A] [App. Term 1st Dep't 2005]; Malcolm X Apts., Inc. v. Allen, 45 Misc 3d 129[A] [App. Term 1st Dep't 2014]; Rippy v. Kyer, 23 Misc 3d 130[A] [App. Term 9th and 10th Jud. Dists. 2009]; Dawkins v. Ruff, 10 Misc 3d 88 [App. Term 2nd Dep't 2005]).

Petitioner concedes respondent received Section 8 assistance from 2018 through September 2019 and confirms the Section 8 subsidy terminated on September 30, 2019 (Petitioner's Opposition, para. 6; Affidavit, para. 4). However, petitioner asserts upon termination, petitioner is entitled to seek the full monthly rental amount of $2,400.00 from respondent (Petitioner's Opposition, para. 4). Petitioner contends the parties entered into a rental agreement for a term of one (1) year commencing on July 1, 2017 and ending on June 30, 2018 and argues this lease agreement continued on a month-to-month basis after respondent's Section 8 subsidy terminated (id. at para. 3-4). Petitioner also argues this pre-existing lease is not a Section 8 lease (id. at para. 14). This Court notes petitioner references this lease agreement as "Ex. 1 Lease," however, no such document is attached to petitioner's opposition.

This Court disagrees with petitioner's arguments as caselaw is clear that " . . . [a]bsent a showing by the landlord of a new agreement . . . a Section 8 tenant does not become liable for the Section 8 share of the rent as 'rent' even after the termination of the subsidy" (emphasis added; 7 Highland Management Corp. v. McCray, 9 Misc 3d 129[A] [App. Term 9th and 10th Jud. Dists. 2005]; Schickler v. Thorpe, 2002 WL 768298 [App. Term. 9th and 10th Jud. Dists. [*2]2002]. Here, petitioner has failed to establish the parties entered into a new agreement after termination of the Section 8 subsidy on September 30, 2019. Rather, the lease referred to by petitioner commenced on July 1, 2017 and ended on June 30, 2018 (Petitioner's Opposition, para. 3) prior to respondent receiving Section 8 assistance.

This Court finds that once petitioner agreed to accept Section 8 payments, the parties pre-existing lease agreement was no longer in effect. Petitioner also fails to address the HUD Tenancy Addendum (HUD-52641-A), submitted by respondent (Respondent's Exhibit E), which must be attached to a Section 8 lease (24 CFR § 982.308[f]). The Addendum states "[i]f the HAP contract terminates for any reason, the lease terminates automatically" (Respondent's Exhibit E, para. 12). This provision specifically states, "for any reason" and does not distinguish the basis for the Section 8 termination (i.e. for cause based on alleged misconduct of respondent) as petitioner suggests.

As such, this Court finds any alleged pre-existing lease entered into by the parties was no longer in effect once respondent received Section 8 assistance. At that point, the Section 8 lease and HUD Tenancy Addendum applied. Once respondent's Section 8 subsidy terminated the parties lease agreement automatically expired. The parties did not enter into any "new" agreement after the Section 8 termination and the parties pre-existing lease agreement did not convert to a month-to-month agreement for the full contract rent. Therefore, the pre-existing lease does not constitute a "new" agreement which would hold respondent liable for the full rental amount.

CVR Determination

Petitioner also relies on correspondence from CVR notifying respondent her Section 8 subsidy was being terminated. Petitioner references this correspondence as "Ex. 2 CVR Notice," however, no such document is attached to petitioner's opposition. As such, this Court has reviewed the CVR letter attached to respondent's motion. The letter states, "[p]lease be advised that your participation in the CVR New York Housing Choice Voucher Program is terminated effective 9/30/2019. After this date, you will be responsible for the full monthly rent of $2,400.00 (Respondent's Exhibit A).

Petitioner asserts the CVR determination is binding on this Court. However, this Court is vested with jurisdiction of summary proceedings to recover possession of real property and to render judgment for rent due (UCCA §§ 203[A][8]; 204). As such, any determination by CVR is not binding on this Court as to how much rent, if any, is owed to petitioner.

Summary Judgment Decision

This Court finds respondent has established her defense sufficiently to warrant this Court to direct judgment in her favor as a matter of law. Petitioner has failed to meet its burden to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution.

As such, respondent's motion for partial summary judgment (CPLR § 3212[e]) is hereby GRANTED to the extent petitioner may only seek respondent's rent share in the amount of $427.00 for the months after her Section 8 subsidy was terminated.

Conclusion

At the outset, and pursuant to a Decision and Order rendered under index number LT-0544-22, that matter is hereby restored to the Court calendar for a status update as to any [*3]pending ERAP application and/or status of whether petitioner is proceeding with said matter. The Honorable Daniel P. Romano has hereby recused himself from this matter (LT-0356-24) as it has come to this Court's attention Andrew Romano, Esq. represents petitioner on LT-0544-22.

Respondent's motion for partial summary judgment (CPLR § 3212[e]) on the instant matter (LT-0356-24) is hereby GRANTED to the extent petitioner may only seek respondent's rent share for the months after her Section 8 subsidy was terminated.

The Clerk of the Civil Court is directed to schedule this matter for conference and notify all parties. Appearances are required.