YORKVILLE PLAZA ASSOCIATES LLC v. GUO (2025)

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent's motion to dismiss pursuant to CPLR § 3211(a)(7) (seq. 1) and petitioner's cross-motion to amend the petition pursuant to CPLR § 3025(b):

Papers Numbered

Notice of Motion & All Documents Annexed 1 (NYSCEF #10-12)

Notice of Cross-Motion & All Documents Annexed 2 (NYSCEF #14-16)

Affirmation in Further Support & Opposition (to Cross-Motion) 3 (NYSCEF #17)

Upon the foregoing cited papers, the decision and order on respondent's motion and petitioner's cross-motion, consolidated for determination herein, is as follows.

PROCEDURAL HISTORY

This summary holdover proceeding based upon a Ninety (90) Day Notice of Termination and Non-Renewal of Tenancy (“90-Day Notice”) was filed in June 2024. Counsel appeared for respondent in September 2024 and later submitted an answer in February 2025. Thereafter, respondent moved to dismiss on the basis that petitioner did not adequately plead a ground for non-renewal under the Good Cause Eviction Law (“GCEL”) (L 2024, ch 56, § 1, part HH). Petitioner opposed the motion and cross-moved to amend the petition. The court heard argument on both motions on April 29, 2025.

DISCUSSION

The court first addresses respondent's motion to dismiss. Respondent seeks dismissal on the basis that petitioner lacks a cause of action under the GCEL, specifically Real Property Law (RPL) § 216(a)(i), which permits removal of a tenant where the tenant has failed to pay rent due and owing, provided the rent due and owing did not result from a rent increase which is unreasonable. Respondent asserts that as a month-to-month tenant without a lease, petitioner cannot maintain an eviction proceeding predicated upon the nonpayment of rent. Respondent also claims that the petition is defective because petitioner claims a lump sum of rent is due and did not allege that the rents due did not result from a rent increase that was unreasonable. Petitioner opposes the motion in all respects, though it also seeks amendment of the petition, to plead the months of rent allegedly due and to assert that “the rent due and owing, or any part thereof, did not result from a rent increase which is unreasonable.” (see NYSCEF Doc. 16 [proposed amended petition]).

On a motion to dismiss for failure to state a cause of action, the petition “must be construed in the light most favorable to [petitioner] and all factual allegations must be accepted as true.” (Burrows v. 75-25 153rd St., LLC, 44 N.Y.3d 74, 83, 241 N.Y.S.3d 111, 267 N.E.3d 1180 [2025]). Nonetheless, dismissal will result when the plaintiff or petitioner “has not stated a claim cognizable at law.” (Basis Yield Alpha Fund [Master] v. Goldman Sachs Group, Inc., 115 A.D.3d 128, 136, 980 N.Y.S.2d 21 [1st Dept. 2014]; see also Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142, 53 N.Y.S.3d 598, 75 N.E.3d 1159 [2017]).

There is no dispute that the instant proceeding was commenced after the enactment of the GCEL on April 20, 2024 (see QN St. Albans Holdings LLC v. Sands, 85 Misc.3d 275, 277, 219 N.Y.S.3d 856 [Civ. Ct., Queens County 2024]). While the GCEL's notice requirements did not take effect until August 18, 2024, “the remaining portions of GCEL ‘take effect immediately and shall apply to actions and proceedings commenced on or after such effective date [April 20, 2024] (L 2024, ch 56, § 1, part HH, § 7).’ ” (Sands, 85 Misc.3d at 277, 219 N.Y.S.3d 856). Thus, petitioner was required to plead and demonstrate a good cause for removal on/after April 20, 2024 if the tenancy was subject to the GCEL (Id.; see also Emerald Green Phase II L.P. v. Rivera, 86 Misc.3d 1211[A], 2025 N.Y. Slip Op. 50916[U], 2025 WL 1618852 [Civ. Ct., Kings County 2025]).

Petitioner does not dispute that respondent's tenancy is subject to the GCEL. Petitioner also does not concede that its original petition is defective. However, it seeks amendment to specifically state the months of rent alleged to be due and to state that the rents due did not result from an unreasonable increase. While not fully dispositive as to respondent's motion, the court finds that petitioner has set forth a sufficient basis to amend its petition to amplify the GCEL-related allegations at this juncture without causing respondent undue prejudice or surprise (see Badesch v. Fort 710 Assoc., L.P. 233 A.D.3d 604, 604, 222 N.Y.S.3d 447 [1st Dept. 2024] [citing CPLR § 3025(b)]; Sin Hang Lau v. Yun He Zheng, 86 Misc.3d 859, 864, 225 N.Y.S.3d 854 [Civ. Ct., Kings County 2025] [permitting amendment to comply with GCEL pleading requirements]). Petitioner's cross-motion to amend the petition is granted accordingly and the proposed amended petition (NYSCEF Doc. 16) is deemed served and filed.

Upon amendment, the court will assess respondent's remaining argument, that petitioner cannot maintain a proceeding based on RPL § 216(a)(i) resulting from nonpayment of rent, as respondent is a month-to-month tenant without a written rental agreement in effect. Respondent's argument tracks the First Department appellate caselaw applicable to summary nonpayment proceedings, which has held that such proceedings may only be maintained where there is a rental agreement in effect for the rents sought (see 7 E. 14, LLC v. Libson, 81 Misc.3d 130[A], 2023 N.Y. Slip Op. 51261[U], 2023 WL 8103983 [App. Term, 1st Dept. 2023]; West 152nd Assoc., L.P. v. Gassama, 65 Misc.3d 155[A], 2019 N.Y. Slip Op. 51926[U], *1, 2019 WL 6681664 [App. Term, 1st Dept. 2019]; 6 W. 20th St. Tenants Corp. v. Dezertzov, 75 Misc.3d 135[A], 2022 N.Y. Slip Op. 50529[U], 2022 WL 2312286 [App. Term, 1st Dept. 2022]).¹ This requirement in nonpayment proceedings arises from language in RPAPL § 711(2), which allows for a proceeding to be maintained where the tenant has “defaulted in the payment of rent, pursuant to the agreement under which the premises are held[.]” (emphasis added). Generally, at least in the First Department, a month-to-month rental agreement will not suffice as the source for a nonpayment proceeding (see Gassama, 2019 N.Y. Slip Op. 51926[U], *2 [“[T]here was no agreed rental amount for any month ensuing after tenant ceased paying rent.”]; Krantz & Phillips, LLP v. Sedaghati, 2003 N.Y. Slip Op. 50032[U], 2003 WL 222778 [App. Term, 1st Dept. 2003]).²

The instant proceeding is not brought pursuant to RPAPL § 711(2). Instead, it is a holdover proceeding based on non-renewal pursuant to a ground permitted by the GCEL. To be certain, there are similarities between these two types of proceedings, as described by Judge Logan J. Schiff in 1719 Gates LLC v. Torres, 85 Misc.3d 906, 222 N.Y.S.3d 366 [Civ. Ct., Queens County 2024]). However, nothing in RPL § 216(a)(i) requires a default in rent “pursuant to the agreement under which the premises are held,” as is the case with a summary nonpayment proceeding. Nonetheless, rent is distinguishable from use and occupancy, since the obligation to pay the former flows from a rental agreement, whether express or implied (Stern v. Equitable Trust Co. of NY, 238 N.Y. 267, 269, 144 N.E. 578 [1924]; Rochdale Vil., Inc. v. Chadwick, 73 Misc.3d 131[A], 2021 N.Y. Slip Op. 50958[U], *2, 2021 WL 4736813 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2021]). The amended petition here describes an initial written lease dated April 20, 2008, petitioner's acceptance of ERAP (Emergency Rental Assistance Program) funds during the COVID-19 period, and respondent's continuance in possession thereafter as a month-to-month tenant. It also states that “rent and/or use and occupancy” is due in the amount of $129,311.87 for the period running from November 2022 through April 2025.

Based on the plain statutory language of RPL § 216(a)(i), the court does not find that the legislature intended to create a basis for non-renewal under the GCEL solely for nonpayment of use and occupancy (see Riley v. County of Broome, 95 N.Y.2d 455, 463, 719 N.Y.S.2d 623, 742 N.E.2d 98 [2000] [“[T]he words of the statute are the best evidence of the Legislature's intent.”]). Only nonpayment of rent at an amount not resulting from an unreasonable increase is sufficient as a basis for nonrenewal. While the amended petition is inartful in its conflation of rent and use and occupancy, in construing the amended petition in the light most favorable to petitioner, the court does not find that dismissal is warranted at this juncture. Petitioner has pleaded sufficient facts to make out a cause of action under RPL § 216(a)(i). The court stresses, however, that petitioner will ultimately have to prove the elements of RPL § 216(a)(i), including the existence of rent due and owing, to be afforded relief in this summary eviction proceeding (see Matter of 200 Claremont Ave. Hous. Dev. Fund Corp. v. Estate of Elsie Lewis, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2025 N.Y. Slip Op. 07084, *1 [1st Dept. 2025]; 1646 Union, LLC v. Simpson, 62 Misc.3d 142[A], 2019 N.Y. Slip Op. 50089[U], *2, 2019 WL 309986 [App. Term, 2d Dept. 2019]),

CONCLUSION

Based on the foregoing determinations, respondent's motion to dismiss is denied and petitioner's cross-motion to amend the petition is granted. Upon the amendment of the petition, the court will permit respondent to interpose an amended answer by January 15, 2026 (see CPLR § 3025(d)).³ The proceeding will be restored for all purposes, including trial transfer, on January 27, 2026 at 9:30 AM in Part D, Room 524.

This Decision/Order will be filed to NYSCEF.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

FOOTNOTES

1.   The Appellate Term, Second Department has imposed the additional requirement that a rental agreement must be in effect upon commencement of the nonpayment proceeding (see Fairfield Beach 9th, LLC v. Shepard-Neely, 77 Misc.3d 136[A], 2022 N.Y. Slip Op. 51351[U], *4, 2022 WL 18635367 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2022]); 265 Realty, LLC v. Trec, 39 Misc.3d 150[A], 2013 N.Y. Slip Op. 50974[U], 2013 WL 3111295 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2013]). This court discussed these issues in detail in UFH Apts. Inc. v. Vyskovsky, ––– Misc.3d ––––, ––– N.Y.S.3d ––––, 2025 N.Y. Slip Op. 25228 [Civ. Ct., NY County 2025]).

2.   In the Second Department, there is some support for a month-to-month agreement being a sufficient basis for a nonpayment proceeding, excepting rent-stabilized tenancies (see Alice Formey Irrevocable Trust v. Edwin, 2025 N.Y. Slip Op. 51178[U], 2025 WL 2091038 [App. Term, 2d Dept., 2d, 11th &13th Jud. Dists. 2025]; Tricarichi v. Moran, 38 Misc.3d 31, 34, 959 N.Y.S.2d 372 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2012]).

3.   No prejudice shall result from the failure to file an amended answer.

Clinton J. Guthrie, J.