Respondent Christopher Norvell, by counsel, moves pursuant to CPLR§ 3212(b) seeking summary judgment in this non-payment proceeding based on the allegation there was no lease agreement between the parties at the time the proceeding was commenced; lack of personal jurisdiction for alleged failure to serve a 14-day rent demand and the Notice of Petition and Petition; and latches.

In is undisputed that Respondent is the Rent Stabilized tenant of Apartment 2B at 1275 Sterling Place, Brooklyn, New York 11249. It is also undisputed that on or about April 17, 2023, Petitioner commenced the within non-payment proceeding seeking to collect rent arrears [*2]for the months of January 2022 through April of 2023 in the monthly amount of $900.00 per month. Paragraph 2 of the Petition alleges in part that Christopher Norvell is a tenant of the premises pursuant to a lease agreement and paragraph 4 of the petition alleges that the rent is due to the Petitioner pursuant to that lease.

In support of the branch of the motion seeking to dismiss based on the lack of lease agreement, Respondent avers that Petitioner last offered him a lease in 2018 and that last Rent Stabilized lease expired in 2020. He further avers that he did not sign that lease and has not had a written lease since. Respondent argues that Petitioner is not entitled to maintain a non-payment proceeding in absence of a written lease agreement. In opposition, Petitioner admits that there is no lease agreement in effect between the parties and the last lease agreement lapsed prior to commencement of the present non-payment action. Petitioner argues that this non-payment proceeding is nevertheless viable because Respondent applied for, and Petitioner accepted the funds from the ERAP program, which Petitioner argues implies a lease agreement between the parties. Petitioner's argument is grounded in a recent holding by Judge Jack Stoller in JSB Props. LLC v. Yershov, 77 Misc 3d 235 [Civ Ct, Hous Part, New York County 2022]. In the context of an unregulated tenancy, Judge Stoller ruled that acceptance of funds from an ERAP program creates an implied agreement, for a term of one year. Specifically, Judge Stoller found that in an unregulated context unless the landlord is permitted to commence a non-payment proceeding during the year after which ERAP funds were accepted, Petitioner would be left without a remedy because a no grounds holdover proceeding seeking possession from Respondent would violate the rules for accepting ERAP funds.^[FN1]

The distinguishing factor in the case at bar is that the tenancy is Rent Stabilized. The quandary encountered by Judge Stoller in JSB Props. LLC v. Yershov is not present here, because Petitioner has a remedy to commence a failure to renew Rent Stabilized lease holdover proceeding pursuant to Rent Stabilization Code § 2424.3(f) and § 2524.2(c)(1). Therefore, the case law cited by Petitioner concerning the impact of ERAP on unregulated tenancies is not persuasive to this court as Petitioner had the remedy to pursue a failure to renew Rent Stabilized lease holdover proceeding without violating the terms of ERAP.

The court also notes that Petitioner's argument that ERAP creates an implied monthly tenancy in the context of a Rent Stabilized tenancy is also problematic in light of the Appellate Term's holding in the first Shepard-Neely proceeding. (See, Fairfield Beach 9th, LLC v. Shepard-Neely, 74 Misc 3d 14, [App Term, 2nd Dep't 2021] ["A rent-stabilized tenancy cannot be monthly because the respective rights and responsibilities of a landlord and tenant under a month-to-month tenancy cannot be reconciled with the respective rights and responsibilities of a landlord and tenant of a rent-stabilized apartment."].

Therefore, this proceeding is governed by a confluence of the holdings rendered by the [*3]Appellate Term, 2nd Department in the first and second Shepard-Neely decisions. Respondent cannot be a month-to-month tenant, as the premises are Rent Stabilized, and Petitioner cannot commence a nonpayment proceeding as it is undisputed that there was no rental agreement in effect when the proceeding was commenced. Therefore, as this court is bound by appellate authority, this proceeding is dismissed without prejudice. (See, Fairfield Beach 9th, LLC v. Barbara Shepard-Neely, 2022 NY Slip Op 51351(U), 2022 NY Misc. LEXIS 9154 [App Term, 2nd Dept, 2nd, 11th, & 13th Jud Dists 2022]).^[FN2]

Accordingly, Respondent's motion is granted to the extent this proceeding is dismissed without prejudice. The court does not reach the remaining arguments presented in Respondent's motion.

This constitutes the Decision/Order of this Court which is uploaded to NYSCEF.