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Civil Court, City of New York,

BSC OWNER LLC, Petitioner, v. Christopher NICHOLSON, et al., Respondents.

Index No. 75480/2019

Decided: April 10, 2020

This is a nonpayment summary eviction proceeding concerning a Mitchell-Lama apartment. Petitioner BSC Owner LLC sued Respondents Lillie Nicholson (the deceased tenant of record) and Christopher Nicholson (her son and putative successor), alleging nonpayment of rent for every month dating back to August 2016. Petitioner concedes that Lillie Nicholson died in October 2016 and that she was named in error. The court held a trial at which two employees, Dora Rua and Lynn Douglas, testified on behalf of BSC, and Christopher Nicholson testified on his own behalf.

The question for the court is whether the holdings in cases such as Strand Hill Assoc. v. Gassenbauer (41 Misc 3d 53 [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2013] ) and 615 Nostrand Ave. Corp. v. Roach (15 Misc 3d 1 [App Term, 2d Dept, 2d & 11th Jud Dists 2006] ), which concern nonpayment summary eviction proceedings against successors to rent-stabilized apartments, apply equally to a Mitchell-Lama apartment. This court concludes that they do. For the reasons below, the petition is dismissed.


The subject apartment is in Starrett City, a Mitchell-Lama rental development supervised by New York State Homes and Community Renewal. Lillie Nicholson moved into the apartment in 1990 and was the tenant and “head of household.” She died in October 2016. Her last lease had expired two months earlier.

Christopher Nicholson is Lillie Nicholson's son. In early 2017 he filled out paperwork to succeed to his mother's tenancy, which paperwork was forwarded by BSC to HCR. In January 2018, HCR notified BSC that it had approved the application. BSC then notified Nicholson of the approval and requested that he visit the management office to complete the recertification process by submitting various financial documents and giving BSC permission to obtain financial information. Dora Rua testified that until the recertification process was complete, including Nicholson's signing of “lease amendments,” he would not be offered a lease agreement for the apartment.

Not until May 2019, after several reminder notices from BSC and its attorneys, did Nicholson complete submission of all the financial information and documents required as part of the recertification process. At that time BSC presented Nicholson with “lease amendments” for the years after his mother's death. He refused to sign them. Because he did not sign the lease amendments, BSC did not offer him a lease for the apartment. BSC commenced this case a few months later.


A landlord may seek relief in a nonpayment summary eviction proceeding under RPAPL 711(2) only where 1) there is a landlord-tenant relationship between the parties, and 2) there is an existing agreement to pay rent (e.g. Strand Hill Assoc. v. Gassenbauer, 41 Misc 3d 53 [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2013]; 615 Nostrand Ave. Corp. v. Roach, 15 Misc 3d 1 [App Term, 2d Dept, 2d & 11th Jud Dists 2006] ). Roach concerned a rent-stabilized tenancy where the tenant-of-record had died, and DHCR had ordered the landlord to offer a renewal lease to the tenant's successor. The landlord failed to immediately comply, instead waiting a year and a half to offer a proper renewal lease. Gassenbauer also concerned a rent-stabilized tenancy where the tenant-of-record had died; the landlord did not offer a renewal lease to her son until about a year and half after. In both cases the Appellate Term held that no eviction proceeding based on nonpayment would lie for any period prior to the parties' entering into a lease agreement. “A successor in interest is not a tenant until he becomes a part to a lease or rental agreement” (Gassenbauer, 41 Misc 3d at 54 [quoting definition of “tenant” in the Rent Stabilization Code as a person named as a lessee or who is a party to a rental agreement and obligated to pay rent (see 9 NYCRR 2520.6[d] ) ] ).

Notwithstanding the allegation in the petition that Nicholson is in possession of the apartment pursuant to a written rental agreement, BSC conceded that there is no such agreement. According to Rua, this was because BSC would not offer Nicholson a lease, despite HCR's approval of his succession application, until he signed the offered “lease amendments,” which he refused to do. No evidence was proffered, or explanation given as to why signed lease amendments were a necessary predicate to offering Nicholson a lease.

Even though there is no written rental agreement between BSC and Nicholson, and that BSC explicitly withheld an offer of a lease from Nicholson, BSC did not address or attempt to distinguish Roach, Gassenbauer, or similar cases in its post-trial memorandum. Instead, it argued that there is a landlord-tenant relationship and agreement to pay rent between it and Nicholson because he was “given an exclusive right to occupy” the apartment and because he took “affirmative steps to make himself the head of household.” But there was no evidence produced that Nicholson was in fact given any “exclusive right.” To the contrary, BSC deliberately withheld offering Nicholson a lease for the apartment. Nor does Nicholson's having effectively sought to enter into a landlord-tenant relationship, by applying to be head of household, imply the existence of such relationship.

BSC also directed the court's attention to a 2019 memorandum of HCR (No.2019-B-02) directing Mitchell-Lama developments supervised by HCR to “continue to seek or collect rent or use and occupancy during the pendency of a succession application and any appeals.” However, BSC's right to seek or collect rent or use and occupancy is not nullified by a holding that an RPAPL 711(2) proceeding does not lie until the parties enter into a lease agreement. As suggested by the Appellate Term in Gassenbauer, BSC may commence a plenary proceeding to seek any unpaid use and occupancy (Gassenbauer, 41 Misc 3d at 55). In any event, HCR's direction that BSC seek or collect rent does not act to create a cause of action that otherwise would not exist under the law.

Finally, Nicholson's having also signed his mother's final lease agreement (in addition to her), does not constitute his agreement to pay rent where, in contrast to his mother, he was not described as a tenant in the agreement. In any event, that agreement expired in August 2016 and no rent has been paid since (cf. 265 Realty, LLC v. Trec, 39 Misc 3d 150[A], 2013 NY Slip Op 50975[U] [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2013] [finding no rental agreement in effect to serve as predicate for RPAPL 711(2) proceeding where rent stabilized lease expired two months before commencement, no new lease was signed, and no rent had been tendered since] ).


Accordingly, it is ORDERED that judgment shall enter in favor of Respondent Christopher Nicholson dismissing the petition. It is also ORDERED that the petition is dismissed as against Lillie Nicholson, John Doe, and Jane Doe.

Michael Weisberg, J.

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