952 St. Marks Ave. HDFC v. White

• Decision Date: 13 December 2019
• Docket Number: 2018-315 K C
• Citation: 66 Misc.3d 35,115 N.Y.S.3d 604
• Parties: 952 ST. MARKS AVENUE HDFC, Respondent, v. Robert WHITE, Appellant, Trina White, Sandra White, "John Doe" and "Jane Doe", Undertenants.
• Court: New York Supreme Court — Appellate Term

66 Misc.3d 35

115 N.Y.S.3d 604

952 ST. MARKS AVENUE HDFC, Respondent,

v.Robert WHITE, Appellant,Trina White, Sandra White, "John Doe" and "Jane Doe", Undertenants.

2018-315 K C

Supreme Court, Appellate Term, New York.

Decided on December 13, 2019

The Legal Aid Society (Diana Vaynshenkern and John Bryant of counsel), for appellant.

Sperber, Denenberg & Kahan, P.C. (Seth Denenberg and Jacqueline Handel-Harbour of counsel), for respondent.

PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ.

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

In this holdover proceeding, landlord, a housing development fund corporation (HDFC), alleges that tenant's month-to-month tenancy was not subject to any form of regulation and was terminated pursuant to a 30-day notice. No reason for the termination of the month-to-month tenancy was given in the termination notice or the petition, and, apart from in the caption, landlord made no mention in the petition of its status as an HDFC. Prior to trial, a guardian ad litem (GAL), who was not an attorney, was appointed to represent the interests of the tenant, who was elderly and suffered from, among other things, mobility issues. At the nonjury trial, tenant did not appear, and the court did not afford tenant's GAL an opportunity to explore the cause issue; instead, the court repeatedly instructed the nonattorney GAL that landlord did not need to prove a reason for the eviction, and landlord established no reason for the eviction. Following the trial, the court awarded landlord a final judgment of possession.

By statute, all HDFCs must be subject to regulatory agreements with government agencies (here, the Department of Housing Preservation and Development), all HDFCs are limited to providing housing to people of low income, all have maximum rentals set by the supervising agency, and all contain restrictions on the use and sale of the property (see Private Housing Finance Law § 576 ). In numerous cases, HDFCs have been held to be entwined with the government and, as such, required to set forth in the notice of termination, and to plead and prove, good cause for the eviction of a tenant (see e.g. 167-169 Allen St. H.D.F.C. v. Ebanks , 22 A.D.3d 374, 802 N.Y.S.2d 650 [2005] ; 512 E. 11th St. HDFC v. Grimmet , 181 A.D.2d 488, 489, 581 N.Y.S.2d 24 [1992] ; 206 W. 121st St. HDFC v. Jones , 53 Misc. 3d 149[A], 2016 N.Y. Slip Op. 51668[U], 2016 WL 6885986 [App. Term, 1st Dept. 2016] ; 207-211 W. 144th St. HDFC v. Sprull , 29 Misc. 3d 142[A], 2010 N.Y. Slip Op. 52196[U], 2010 WL 5175009 [App. Term, 1st Dept. 2010] ; 330 S. Third St., HDFC v. Bitar , 28 Misc. 3d 51, 906 N.Y.S.2d 839 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2010] ; 80 St. Nicholas Ave. HDFC v. Lewis , 24 Misc 3d 134[A], 2009 N.Y. Slip Op. 51473[U], 2009 WL 2020808 [App. Term, 1st Dept. 2009] ). Here, in order to determine this appeal, we need not ultimately decide whether all HDFCs are so entwined based on the statutory requirements (see 207-211 W. 144th St. HDFC v. Sprull , 29 Misc. 3d 142[A], 2010 N.Y. Slip Op. 52196[U], 2010 WL 5175009 ; 1103 Franklin Ave. HDFC v. Gould , 63 Misc. 3d 1235[A], 2019 N.Y. Slip Op. 50894[U], 2019 WL 2399940 [Civ. Ct., Bronx County 2019] ) since, even if landlord is not so entwined, it was, in view of the extensive case law on the issue, at the very least incumbent upon landlord to set forth in the petition the facts surrounding its status as an HDFC so that the court and tenant would be on notice of whether landlord needed to have complied with the good cause requirements (see RPAPL 741 ; Matter of Volunteers of Am.-Greater N.Y., Inc. v. Almonte , 65 A.D.3d 1155, 886 N.Y.S.2d 46 [2009], affg 17 Misc. 3d 57, 847 N.Y.S.2d 327 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2007] ). Contrary to the view of the dissenting justice, under the requirements of RPAPL 741 that a petition state the interest of the parties and the facts on which the proceeding is based, the onus was upon landlord to set forth, in the petition, the relevant facts regarding its status as an HDFC. Here, landlord failed to allege good cause for the eviction or set forth why it did not need to demonstrate good cause, yet the Civil Court, without any basis therefor in the record, ruled that good cause was not an issue in this case. Based on the court's foreclosure of an opportunity to tenant's GAL to examine the cause issue, it cannot be said, as the dissent would have it, that tenant waived the objection (cf. Matter of Volunteers of Am.-Greater N.Y., Inc. v. Almonte , 65 A.D.3d at 1157, 886 N.Y.S.2d 46 ). Under these circumstances, we find that the petition was defective, requiring dismissal.

Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

PESCE, P.J., and ELLIOT, J., concur.

WESTON, J., dissents and votes to affirm the final judgment in the following memorandum:

Tenant argues, for the first time on appeal, that, as an HDFC, landlord was required to allege good cause for tenant's eviction both in its petition and termination notice. In my opinion, the record fails to establish sufficient government participation in this HDFC to impose such a requirement. Moreover, tenant waived this challenge by not raising it below. Accordingly, I respectfully dissent and vote to affirm.

To require an HDFC to allege good cause for an eviction, a court must determine whether the government is "sufficiently entwined" with the HDFC "so as to trigger constitutional due process protections" ( 512 E. 11th St. HDFC v. Grimmet , 181 A.D.2d 488, 489, 581 N.Y.S.2d 24 [1992] [internal quotation marks omitted] ). A landlord's status as an HDFC alone is insufficient to establish such a relationship. Rather, there must be proof in the record showing that the HDFC acted with the government to provide housing for the poor. For instance, in 512 E. 11th St. HDFC v. Grimmet , the Court noted a "sufficiently entwined" relationship where the landlord's certificate of incorporation identified its purpose as exclusively developing a housing project for low income people, contained restrictions on the use and sale of the housing project, and required the city's approval prior to evicting a tenant. Similarly, in 330 S. Third St., HDFC v. Bitar , 28 Misc. 3d 51, 906 N.Y.S.2d 839 (2010), this court found "extensive entwinement" between the City of New York and the landlord, where (1) the City had conveyed the building to the landlord by a deed which contained restrictions on the sale or transfer of the deed without...