Clinton-178 Towers LLC v. Chapple

• Decision Date: 10 October 2017
• Citation: 58 Misc.3d 198,63 N.Y.S.3d 656
• Parties: CLINTON–178 TOWERS LLC, Petitioner/Landlord, v. Lina CHAPPLE—Tenant, Respondent.
• Court: New York Civil Court

58 Misc.3d 198

63 N.Y.S.3d 656

CLINTON–178 TOWERS LLC, Petitioner/Landlord,

v.Lina CHAPPLE—Tenant, Respondent.

Civil Court, City of New York, Bronx County.

Oct. 10, 2017.

Gutman, Mintz, Baker & Sonnenfeldt, LLP, New Hyde Park, attorneys for petitioner.

Emilio Paesano, Esq., BOOM!Health Legal Services, Bronx, attorneys for respondent.

DIANE E. LUTWAK, J.

Upon the foregoing papers, Respondent's motion and Petitioner's cross-motion, consolidated herein for determination, are decided as follows.

PROCEDURAL HISTORY AND BACKGROUND

This is a holdover proceeding based on allegations that, since May 2016 and on a continuous basis thereafter, Respondent has hosted frequent "loud, large parties" with guests and visitors observed in the building's hallways and stairwells engaging in various specified types of "anti-social, disruptive, destructive, dangerous and/or illegal behavior" constituting a nuisance and an objectionable tenancy in violation of Respondent's lease and Petitioner's Building Rules and Regulations. The predicate "10 Day Notice to Terminate", a copy of which is attached to the Petition and incorporated therein by reference at paragraph five, includes descriptions of four specific incidents as well as a prior eviction proceeding based on similar allegations of nuisance behavior that was settled with a probationary agreement that ran through February 2016.

The Petition describes the premises as "a fair market apartment" for which Respondent receives a Section 8 rent subsidy administered by the New York State Division of Housing and Community Renewal (DHCR). Both the Petition and the predicate notice assert that, "DHCR is being notified of this proceeding pursuant to 24 C.F.R. 982.310."

Both parties appear by counsel. Respondent served and filed a Verified Answer and then moved to dismiss based on her First Objection in Point of Law: Petitioner's alleged failure to serve the DHCR with copies of the predicate notice and Notice of Petition and Petition as required by 24 CFR § 982.310(e)(2)(ii) and ¶¶ 8(a) and 8(g)(2) of the "Tenancy Addendum" to the Housing Assistance Payments ("HAP") contract between Petitioner and the DHCR. As the factual basis for this claim, Respondent points to the affidavits of service in the court file which do not mention service on the DHCR.

In the alternative, Respondent seeks discovery under CPLR § 408 on two of her affirmative defenses: defective predicate notice due to lack of the requisite specificity (Second Affirmative Defense); and the claim that "the events described in the Notice of Termination did not occur" (Third Affirmative Defense).¹ Respondent's discovery request is comprised of two proposed Notices of Deposition: one seeks to take the deposition of an unspecified agent of Petitioner and production at that deposition pursuant to CPLR R 3111 of a witness list as well as documents and videotapes or other recordings relating to Petitioner's claims against Respondent, which she refutes; the other seeks to take the deposition of Petitioner's managing agent Michael Abreu.

In opposition and by cross-motion, Petitioner asserts that it did serve copies of its predicate notice and Petition on the DHCR, provides copies of its affidavits of service on the DHCR and asks that they be deemed filed timely nunc pro tunc under CPLR §§ 2001 and 2004.

In opposition to Respondent's discovery request Petitioner points to "the plethora of factual information contained within the notices". Affirmation in Opposition at ¶ 28. Petitioner argues that Respondent has not established "ample need", that the motion is not supported by Respondent's sworn affidavit, that Respondent's claim that she is not in possession of the information she needs to defend against this proceeding is "undermined by the fact that Respondent has lived in the subject premises for 13 years and that the conduct alleged herein all occurred inside the apartment," id. at ¶ 21, and that Respondent will have a full opportunity "to cross examine the Petitioner's witnesses, question their veracity and attack any documentary evidence which they may seek to introduce" at trial. Id. at ¶ 29.

In opposition to Petitioner's cross-motion and on reply Respondent's counsel argues that Sections 733(1) and 735(2) of the New York State Real Property Actions and Proceedings Law (RPAPL) require Petitioner to have filed proof of service on the DHCR when it filed proof of service on Respondent to demonstrate compliance with 24 C.F.R. § 982.310(e)(2)(ii). Respondent further argues that this is a "fatal error" which cannot be overlooked or corrected nunc pro tunc and that, in any event, Petitioner has still failed to provide proof of service of the Notice of Petition (as opposed to the Petition) on the DHCR. Regarding discovery, Respondent argues that no affidavit is required given that the motion is supported by her Verified Answer, and that she has shown the requisite "ample need" to review the requested information in advance of trial.

In reply, Petitioner's counsel argues that 24 CFR § 982.310(e)(2)(ii) does not contain a filing requirement; rather, it only requires owners to provide notice of a pending eviction proceeding to the public housing authority (PHA), in this case the DHCR, which Petitioner did. Further, RPAPL §§ 733(1) and 735(2) relate solely to service on respondents, and filing proof of such service with the court, of the notice of petition and petition to obtain personal jurisdiction.

Dismissal²

Where a tenant's rent is subsidized by the federal Section 8 Housing Choice Voucher Program, 24 C.F.R. § 982.310(e)(2)(ii) requires an owner who is terminating a tenancy to "give the PHA [public housing authority] a copy of any owner eviction notice to the tenant." An "owner eviction notice" is defined as "a notice to vacate, or a complaint or other initial pleading used under State or local law to commence an eviction action." 24 C.F.R. § 982.310(e)(2)(i).³ Failure to give the requisite notice to the PHA notice is certainly a defense which, if proven at trial or on a motion to dismiss or for summary judgment, could result in the dismissal of the proceeding. See, e.g., FAC Renaissance HDFC v. Vega, 55 Misc.3d 1210[A], 2017 N.Y. Misc. LEXIS 1352, 2017 WL 1369899 (Civ.Ct., Kings Co.2017) (granting tenant's motion to dismiss holdover proceeding under CPLR 3211[a][7] due to landlord's failure to give notice of the proceeding to the PHA, New York City Department of Housing Preservation and Development [HPD] ); Sam Burt Houses, Inc. v. Smith (NYLJ 1202731567320 [Civ. Ct., Kings Co 2015] )(granting motion of tenant with Section 8 subsidy administered by HPD to dismiss nonpayment proceeding where landlord admitted that it failed to serve copies of the notices on HPD in any manner whatsoever).

Further, where the PHA is the New York City Housing Authority (NYCHA), the Second Partial Consent Judgment issued in the case of Williams v. New York City Hous Auth (81 Civ. 1801 [S.D.N.Y. Feb 2, 1995] ), sets forth numerous procedural steps for landlords to follow prior to and in the course of commencing eviction proceedings, including the manner of service of the required eviction notices on NYCHA.⁴ However, where, as here, the PHA is not NYCHA, there is no prescribed method for serving the PHA with a copy of any such "owner eviction notice".

The decisions Respondent cites are inapposite because they involve defective pleadings and/or tenants with NYCHA Section 8 subsidies. For example, in 433 West Assocs v. Murdock, 276 A.D.2d 360, 360, 715 N.Y.S.2d 6, 7–8 (1st Dep't 2000), a holdover proceeding against a tenant with a NYCHA Section 8 subsidy, the court noted that the petition "failed to plead that it and the predicate termination notice were served on the New York City Housing Authority, as required by Federal consent decree and regulation," citing Williams v. New York City Hous. Auth., supra, and 24 C.F.R. § 982.310(e)(2)(ii).⁵ Similarly, the case of Homestead Equities v. Washington, 176 Misc.2d 459, 672 N.Y.S.2d 980 (Civ.Ct., Kings Co.1998), also involved a holdover proceeding against a tenant with a NYCHA Section 8 subsidy and a pleading defect; the court denied the petitioner's request for a default judgment and dismissed the proceeding because, inter alia, the petition failed to allege respondent's Section 8 status or petitioner's compliance with the applicable Federal regulations. In Taylor v. Shelton, 2017 NYLJ LEXIS 1023 (Civ.Ct., Qns.Co.2017), while the issue was not a defective pleading, the court granted a motion to dismiss a holdover proceeding against a tenant with a NYCHA Section 8 subsidy where the landlord failed to prove that it had complied with the service requirements of the Williams Second Partial Consent Judgment. In Sam Burt Houses, Inc v. Smith (NYLJ 1202731567320 [Civ. Ct., Kings Co.2015] ), a nonpayment proceeding against a tenant with a Section 8 subsidy administered by HPD, the court granted a motion to dismiss where the landlord admitted that it failed to plead the Section 8 status in the petition and to serve copies of the notices on HPD in any manner whatsoever.

Further, there is no requirement, as argued by Respondent, that proof of notice to the PHA be filed with the court in the same manner and at the same time as the filing of proof of service of the Notice of Petition and Petition on the respondent. The service and filing provisions of the RPAPL establish the criteria for obtaining personal jurisdiction over the respondent in an eviction proceeding, see generally Dolan v. Linnen, 195 Misc.2d 298, 753 N.Y.S.2d 682 (Civ.Ct., Richmond Co.2003), and simply do not apply to the federally mandated notice which an owner must "give" to a PHA under 24 C.F.R. § 982.310(e)(2)(ii), a regulation which itself does not prescribe how the landlord is to "give" the requisite notice to the PHA or how the landlord is to prove that it did so.⁶

Accordingly, Respondent's motion to dismiss is denied.

Discovery

In summary proceedings, a party requesting...