Rochdale Vil., Inc. v. Hallerdin-Grant, 2024 NY Slip Op 24192 (2024)

Unquestionably, Respondent's failure to pay maintenance and other carrying charges is a breach of the agreement to pay rent (see 9 NYCRR §§ 1727-4.1(a); Occupancy Agreement at Section 2, NYSCEF 12 at 3; Rochdale Vil., Inc. v Chadwick, 73 Misc 3d 131[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Riverbend Hous. Co. v Stephenson, 172 Misc 2d 385 [App Term, 1st Dept 1997]). Similarly, moneys due as annual surcharges are characterized as unpaid rent in the parties' occupancy agreement (see Section 2(a)(3), NYSCEF 12 at 3), Petitioner's termination notice, which describes the surcharges as "additional maintenance" (see NYSCEF 1 at 8-9), and DHCR regulations, which provide that where a tenant fails to timely submit annual income affidavits, such conduct will "be assumed to indicate excess income" and in such cases the "rent will be raised to the maximum in the surcharge schedule" (9 NYCRR § 1727-2.6 [a] [emphasis added]; see also 9 NYCRR §§ 1727-4.1[a],[d]). Accordingly, because it is evident from the occupancy agreement and DHCR regulations that maintenance and surcharges constitute rent, and because the conditional limitation clause in the parties' occupancy [*5]agreement does not authorize early termination of the lease based on the failure to pay rent, no cause of action lies in a holdover for a default in payment of maintenance or surcharges, and the branch of the Petition on this basis must be dismissed (see BEC Continuum Owner LLC v Foster, 80 Misc 3d 1233[A] [Civ Ct, Kings Co 2023]; 1900 Albemarle, LLC v Solon, 57 Misc 3d 158[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Fourth Hous. Co., Inc. v Bowers, 53 Misc 3d at 45).[FN2] CONCLUSION