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Civil Court, City of New York.

2600 CRESTON AVENUE OWNER LLC, Petitioner-Landlord, v. John MINENA & H.A., Respondents.


Decided: May 02, 2019

For Respondent, Mobilization for Justice, Inc., 424 East 147th Street, 3rd Floor, Bronx, NY 10455 For Petitioner, Candace C. Carponter, P.C., 31 Smith Street, Second Floor, Brooklyn, NY 11201

Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.

Papers Numbered

Notice of Motion and Affidavits Annexed 1

Notice of Cross-Motion and Affidavits Annexed (Respondent) 2

Answering Affirmation (Petitioner's Reply & Opposition to Cross-Motion) 3

Replying Affirmation (Respondent's) 4

Exhibits (Pet's A-I & Resp's A-H) 5, 6


After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:


Petitioner, 2600 Creston Avenue Owner LLC, (“Petitioner”), commenced this summary holdover proceeding against John Minena  1 , (“Respondent”), alleging that Respondent's occupancy is unlawful as he is either a licensee or a squatter. On or about the initial court date, November 26, 2018, Respondent obtained counsel and the matter was adjourned to January 16, 2019. On or about January 2, 2019 Respondent filed an Answer. By stipulation dated January 15, 2019, the matter was adjourned to March 7, 2019. Thereafter, Petitioner moved to strike certain portions of Respondent's answer and for leave to conduct discovery. Respondent opposes Petitioner's motion and cross-moves for summary judgment arguing that the Notice to Quit, (“Notice”), is defective and that Petitioner has failed to name a necessary party, the estate of the tenant of record, (“estate”). There is no dispute that the tenancy is subject to rent-stabilization.


Respondent's Motion for Summary Judgment

Although made second in time, the court will address Respondent's motion first. Respondent argues he is entitled to summary judgment on two grounds. Respondent argues that while Petitioner may commence a holdover on dual grounds, the Notice to Quit must provide an explanation as to why the alternative grounds of squatter or licensee are necessary. Additionally, Respondent contends that the estate of Joanne Figueroa is a necessary party because a rent stabilized lease remains in effect through July 31, 2019.

In this court's view, the Petition is defective for failure to name the estate of the deceased tenant of record. “A lease for a term of years which has not expired is not terminated by the death of the lessee. Upon the death of the tenant the leasehold interest of the decedent becomes personal property of the estate. The estate is the party which is entitled to possession and is the proper party The landlord may not elect to evict a licensee from real property without first having legally recovered possession of the premises from the licensor or the licensor's estate Petitioner has no standing to bring a summary eviction proceeding against Respondent pursuant to RPAPL Section 713(7).” (100 West 72nd Street Associates v. Murphy, 144 Misc 2d 1036, 1039, 545 NYS2d 901 [Civ Ct, New York County 1989] [internal citations omitted] ).

Petitioner presents a “lease” commencing August 1, 1999 titled “Section 8 Lease For Family With Rental Voucher.” 2 Petitioner argues that the upon the death of the tenant of record, the lease terminated. Petitioner points to par. 7(a) of the lease addendum which states in relevant part, “The term of the lease terminates if [t]he HAP contract terminates” which is to be read together with par. 4(b)(6) of a standard HAP contract. 4(b)(6) states, “The HAP contract terminates automatically upon the death of a single member household.” 3 NYCHA, by letter dated June 13, 2018, informed Petitioner that “the rent subsidy paid by the Housing Authority's Section 8 Housing Choice Voucher Program for the tenant has been terminated” due to the tenant being “Deceased.” 4 Respondent argues that such a lease provision in unenforceable as it undercuts rent-stabilization protections.

The tenant of record is not a party to the HAP contract. (See Rosario v. Diagonal Realty, LLC, 8 NY3d 755, 760 [2007] (“Once NYCHA has issued a Section 8 voucher to an eligible family, and the family has found a landlord willing to accept it, the landlord and NYCHA must sign a Housing Assistant Payment (HAP) contract.”) [emphasis added]; Florentino v. Nokit Realty Corp., 29 Misc 3d 190, 195, 906 NYS2d 689 [Sup Ct, New York County 2010] (“Once NYCHA issues a Section 8 voucher, the participating landlord and NYCHA enter into a contract known as a HAP.”) ). Further, federal law may not preempt rent-stabilization rights. (Rosario, id. at 760; Daley v. M/S Capital NY LLC, 44 AD3d 313, 844 NYS2d 194 [1st Dept 2007]; Tapia v. Successful Management Corp., 24 Misc 3d 1222(A), 2009 NY Slip Op 51552(U) [Sup Ct, New York County 1999] ). As such, this court finds that termination of the rent subsidy, due to the tenant of record's death, does not terminate the rent-stabilized lease. A rent-stabilized lease remains in effect through July 31, 2019.5 Consequently, the proceeding must be dismissed for failure to name a necessary party.6 (Westway Plaza Associates v. Doe, 179 AD2d 408, 409-410, 578 NYS2d 166 [1st Dept 1992] ).

The court, therefore, need not address the balance of the parties' arguments.


Based on the foregoing, it is So Ordered that Respondent's cross-motion is granted, and the proceeding is dismissed without prejudice. Petitioner's motion is denied as moot. This constitutes the Decision and Order of the court.



1.   There were three respondents, John Minena, “John Doe” and “Jane Doe.” However, pursuant to the January 15, 2019 stipulation, “H.A.” was substituted for “Jane Doe” and the case was discontinued against “John Doe.” “H.A.” is represented but has not interposed an answer.

2.   The lease and addendum appear complete. However, page 4 is out of order. See Petitioner's exhibit ‘D.’

3.   Petitioner's exhibit ‘E.’

4.   Petitioner's exhibit ‘F.’

5.   See Respondent's exhibit ‘A.’

6.   The court notes that neither party mentions par. 12 of the 1999 lease which states, “If subsequent to the expiration of the term of this lease, Tenant shall continue in possession under the protection any applicable rent control law or rent stabilization law.” The court reads this clause as further evidence that rent-stabilization protections survive termination of the Section 8 subsidy. Par. 12 is immediately preceded by par. 11 titled “Termination of Rental Voucher Prior to Expiration of Lease.”

Shorab Ibrahim, J.

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