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

Footnote 2:While Petitioner may have a remedy in a nonpayment proceeding under RPAPL 711(2), this cause of action is mutually exclusive from a holdover as it presumes the existence of an ongoing landlord-tenant relationship (see Greenport Preserv., L.P. v Heyward, [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). The court further notes, but need not resolve in this proceeding, the open question of law as to whether Mitchell-Lama surcharges may be sought in a nonpayment following the legislature's amendment of RPAPL 702 on June 14, 2019 as part of the Housing Stability and Tenant Protection Act (L 2019, ch 36, §§ 11, 29), which now provides that: "No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement." While the statute was subsequently amended on December 22, 2021, to allow private cooperatives the right to seek fees collectible in a lease as "added rent" (see Thomas Jefferson Owners Corp. v Lokshin, 2024 NY Slip Op 24169 [Civ Ct, Queens Co 2024]), the more narrow definition of rent in the statute still applies to cooperatives subject to Article II of the Private Housing Finance Law, which encompasses Mitchell-Lama cooperatives (see RPAPL 702(2); see also Riverbay Corp. v Carrey, 29 Misc 3d 855 [Civ Ct, Bronx Co 2010] [discussing, prior to the amendment of RPAPL 702, the distinction between surcharges as added rent in state- and city-assisted Mitchell-Lama projects]; Rochdale Vil., Inc. v Goode, 16 Misc 3d 49 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).