Gonzalez v. Rothweiler

253 A.D.2d 848, 678 N.Y.S.2d 502, 1998 N.Y. App. Div. LEXIS 9812

Opinion

In an action to recover rent arrears, the defendant tenant appeals from a judgment of the Supreme Court, Westchester County (Nastasi, J.), entered June 26, 1997, which, upon an order granting the motion of the plaintiff landlord for summary judgment, is in favor of the plaintiff landlord and against her in the principal sum of $13,380.

Ordered that the judgment is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a recalculation of damages in accordance herewith.

The instant appeal arises out of a conflict between the plaintiff landlord and the defendant tenant over the defendant’s nonpayment of rent for a 25-month period. A tenant has an independent obligation to pay rent, which continues as long as the tenant remains in possession of the premises (Earbert Rest. v Little Luxuries, 99 AD2d 734), and on the landlord’s motion for summary judgment at issue herein, he submitted evidence which established a prima facie case that the tenant had failed to pay rent for the time period at issue. The tenant’s opposition papers failed to raise a triable issue of fact on this issue. Thus, the landlord was entitled to summary judgment on its claim for past due rent.

However, since the New York State Department of Housing and Community Renewal (hereinafter the DHCR) has not yet made a final determination as to the amount of the legal regulated rent for the time period in question, the matter is remitted to the Supreme Court for a recalculation of damages at such time as the DHCR determines the rent. Mangano, P. J., Sullivan, Florio and McGinity, JJ., concur.