41 LLC v. Arkadiy Munarov and Osnat Arabov, Respondents. (2024)

ORDERED that, on the court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order is affirmed, without costs.

Landlord commenced this nonpayment proceeding to recover possession of a rent-stabilized apartment based on rent owed pursuant to a purported written lease for the period from March 2020 through May 2021, which totaled $34,495. At a nonjury trial, the undisputed testimony demonstrated that, subsequent to the expiration of the prior rent-stabilized lease in February 2020, no payments were made and there was no new rent-stabilized lease between the parties. After landlord concluded his case, tenants orally moved, in effect pursuant to CPLR 4401, for judgment as a matter of law dismissing the petition on the ground that the proceeding did not lie without a rental agreement. By order dated May 2, 2023, the Civil Court granted tenants' oral motion and dismissed the petition.

A nonpayment proceeding must be predicated on a rental agreement in effect at the time the proceeding is commenced (see Matter of Jaroslow v Lehigh Val. R.R. Co., 23 NY2d 991 [1969]; 265 Realty, LLC v Trec, 39 Misc 3d 150[A], 2013 NY Slip Op 50974[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Here, contrary to landlord's argument, tenants were entitled to judgment as a matter of law, as there is no rational basis by which the Civil Court could have found in favor of landlord (see CPLR 4401), since the record establishes that there was no rent-stabilized lease in effect at the time landlord commenced this nonpayment proceeding (see Singh v Smith, 58 Misc 3d 160[A], 2018 NY Slip Op 50287[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, there is no basis to disturb the Civil Court's dismissal of the petition.

Landlord's remaining arguments are raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Ellerby v Helman, 72 Misc 3d 133[A], 2021 NY Slip Op 50663[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Accordingly, the order is affirmed.

BUGGS, J.P., TOUSSAINT and HOM, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: August 2, 2024