Bennett v. Brooks
| Decision Date | 01 October 2021 |
| Docket Number | 0436-21 |
| Citation | 73 Misc.3d 1206 (A),153 N.Y.S.3d 833 (Table) |
| Parties | Kahiesha BENNETT, Petitioner-Landlord, v. Toni BROOKS, Michael Adams and Franklyn Doe, Respondents-Tenants. |
| Court | New York City Court |
Kahiesha Bennett, Petitioner pro se, [redacted], Mount Vernon, New York 10550
Legal Services of the Hudson Valley, Attorneys for Respondent, 100 East 1st Street, Suite 810, Mount Vernon, New York 10550
Petitioner commenced this holdover proceeding in June 2021 seeking to recover possession of the residential premises following the expiration of the parties rental agreement.
Respondent now moves to dismiss this holdover proceeding on the grounds that 1)the notice of termination, notice of petition and petition were not served upon the Public Housing Authority administering the Section 8 voucher 2) the petition fails to plead the Section 8 status of the tenancy, and 3) the predicate notice is defective.
Respondent opposes the motion.
Respondent's counsel, Mary Grace Ferone, affirms that upon information and belief, respondent is the recipient of a Section 8 voucher administered by CVR. She affirms that respondent's portion of the rent is $366 and that CVR pays the remainder of the rent in the amount of $1,384. Counsel argues that the petition must be dismissed because Federal regulation 24 CFR § 982.31 (e)(2)(ii) requires that an owner/landlord seeking to terminate a tenancy under a Section 8 program must give the Public Housing Authority a copy of any eviction notice to the tenant, including the termination notice, petition and notice of petition. Counsel argues that the petitioner failed to served the PHA with any termination notices. Counsel further argues that petitioner failed to plead the Section 8 status of the tenancy in her papers, thus rendering the predicate notice and petition defective. Accordingly, counsel argues that the petition must be dismissed.
In opposition to the motion, petitioner states that when she served the termination notice on August 26, 2020, she notified CVR of her intention to terminate the respondent's lease. She maintains that she emailed the respondent's case worker, Nikki Shields, and informed her that she was terminating the tenancy because Respondent Brooks broke her rental agreement. She argues that she attached a copy of the Notice to Terminate to the email she sent Ms. Shields. A copy of the purported email to Ms. Shields, dated September 4, 2020 is attached to respondent's opposition papers. A Notice of Infraction, dated September 4, 2020, from Nikki Shields addressed to the petitioner is also attached to the papers as Exhibit A. Petitioner argues that the Notice of Infraction from CVR evidences that she notified the Section 8 administrator that she was seeking to evict the respondent. She further argues that she entrusted the Mount Vernon City Marshal's office to serve the papers. She states that CVR was served with the Notice of Petition and Petition by certified mail on June 3, 2021. A copy of a U.S. Postal Service certified mail receipt No.7017 3380 0001 0777 8980 addressed to CVR, 112 E. Post Road, Suite #102, White Plains, NY 10601 is attached to the opposition papers as Exhibit B.
In reply, respondent's counsel maintains that no affidavit of service has been filed alleging proper service of the CVR. Counsel affirms that the petitioner's purported email to CVR fails to comply with federal regulations as there is no way of verifying that the notice to evict was attached to the email. She further argues that the notice of termination fails to mention CVR or Section 8. Accordingly, counsel argues that the petition must be dismissed as respondent failed to properly serve the a predicate notice upon the PHA.
A summary proceeding is a special proceeding governed entirely by statute and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction (See Goldman Bros. v. Forester , 62 Misc 2d 812, 309 N.Y.S.2d 694 [Civ. Ct. NY Co. 1970] ). A petition in a summary proceeding is sufficient if it sets forth sufficient facts so that respondent may adequately frame a defense ( Tompkins Park-St. Marks Associates v. Boz Boz II Enterprises, Ltd. , 177 Misc 2d 949, 679 N.Y.S.2d 236 [1st Dept. 1998] ).
RPAPL § 741 states in relevant part that:
"Every petition shall: "1) State the interest of the petitioner in the premises from which removal is sought. 2) State the respondent's interest in the premises and his relationship to petitioner with regard thereto. 3) Describe the premises from which removal is sought. 4) State the facts upon which the special proceeding is based ...."
Where a tenancy is subject to a specific type of regulation, the petition must set forth the tenant's regulatory status, because this status may determine the scope of the tenant's rights in the summary proceeding ( Matter of Volunteers of Am.-Greater NY, Inc. v Almonte , 65 A.D.3d 1155, 886 N.Y.S.2d 46 [2d Dept 2009], affg 17 Misc 3d 57, 847 N.Y.S.2d 327 [App Term, 2d 2007] ; see Cintron v Pandis , 34 Misc 3d 152[(A]), 950 N.Y.S.2d 490, 2012 N.Y. Slip Op. 50309[(U]) [App Term, 2d Dept 2012] ). A petition which fails to satisfy this requirement is subject to dismissal. A simple misstatement concerning the regulatory status of a tenancy will not render the petition jurisdictionally defective (Routolov Garzillo , 86788/15, NYLJ 1202781160330 at 1 [Civ Ct. Kings Co. 2017); 2017 NYLJ LEXIS 659 (citing 17th Holding LLC v Rivera , 195 Misc 2d 531, 758 N.Y.S.2d 758 [2d Dept 2002] ). However, where a petition contains ‘fundamental misstatements and omissions’ it will be dismissed ( Cintron v Pandis, 34 Misc 3d 152(A), 950 N.Y.S.2d 490 (); Joseph M. d'Assern Hous. Corp. v Day , 24 Misc...
To continue reading
Request your trial