FIFTH AND 106TH STREET ASSOCIATES LP v. HUNT (2026)

Order, Supreme Court, New York County (Nicholas W. Moyne, J.), entered December 11, 2024, which, to the extent appealed from as limited by the briefs, denied plaintiff landlord's motion for summary judgment on its claim for additional use and occupancy, and, upon a search of the record, dismissed the complaint, unanimously affirmed, without costs.

Defendant was a tenant in a section 8 building owned by defendant, and the lease for plaintiff's unit provided that failure to certify her income could result in termination of the tenancy.  When defendant refused to certify her income, plaintiff commenced a holdover proceeding, and Housing Court granted a judgment of possession in plaintiff's favor based in part on defendant's failure to provide the recertification documents.  Defendant obtained a stay pending appeal, conditioned on paying interim use and occupancy.  While that appeal was pending, defendant paid use and occupancy at a rate of $1,255 per month, an amount that exceeded her lease rate of $1,091 per month.  After defendant was evicted from her unit, plaintiff commenced this action, seeking the difference between the market rate rent set by the U.S. Department of Housing and Urban Development (HUD) and the use and occupancy paid by defendant while she remained in possession.

Initially, contrary to plaintiff's contention, the court did not dismiss the complaint sua sponte, but providently searched the record in accordance with CPLR 3212(b) to find that plaintiff was not entitled to the relief it sought in the complaint (see e.g. High Return Props. v Calka, 256 AD2d 82, 82 [1st Dept 1998] ).  On the merits, the court properly dismissed the complaint.  Plaintiff failed to show that it complied with the HUD procedures referenced in paragraph 32(a) of the subject lease, or otherwise met its burden of showing that it is entitled to collect the higher, HUD determined market rent (see Mushlam, Inc. v Nazor, 80 AD3d 471, 472 [1st Dept 2011] ).  The motion court therefore properly determined that the tenant's payment of use and occupancy in excess of the lease rate was reasonable compensation for the holdover period, and its search of the record to dismiss plaintiff's sole claim in the action was proper.

We have considered plaintiff's remaining contentions and find them unavailing.