Concourse Green Assocs., LP v. Patterson

• Decision Date: 07 October 2016
• Docket Number: 23851/16
• Citation: 2016 NY Slip Op 51451 (U)
• Parties: Concourse Green Associates, LP, Petitioner-Landlord, v. Toby Patterson, Respondent-Tenant.
• Court: New York Civil Court

2016 NY Slip Op 51451(U)

Concourse Green Associates, LP, Petitioner-Landlord,
v.
Toby Patterson, Respondent-Tenant.

23851/16

Civil Court of the City of New York, Bronx County

Decided on October 7, 2016

Attorney for Respondent:

Robert G. Hammond, Esq.

Bronx Legal Services

349 E. 149th Street, 10th floor

Bronx, New York 10451

(718) 928-3677

Attorney for Petitioner:

Arianna Gonzalez-Abreu, Esq.

Gutman, Mintz, Baker & Sonnenfeldt, LLP

813 Jericho Turnpike

New Hyde Park, New York 11040

(516) 775-7007

Diane E. Lutwak, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Motion to Dismiss:

Papers Numbered

Notice of Motion, Attached Affirmation and Exhibits 1

Respondent's Memorandum of Law 2

Petitioner's Affirmation in Opposition 3

Respondent's Memorandum of Law in Reply 4

Upon the foregoing papers and for the following reasons, the motion to dismiss by respondent-tenant Toby Patterson is granted; the alternative relief sought of leave to file an answer is denied as moot.

In this summary holdover proceeding, the petitioner-landlord seeks to recover possession of Apartment 2E at 115 Marcy Place in the Bronx from the respondent-tenant who, according to petitioner, Petition at ¶ 2, has lived in this apartment for over seventeen years. The apartment is

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in a federally subsidized building governed by Section 8 of the United States Housing Act of 1937, 42 USC §§ 1437 et seq., and is subject to the "Section 8 Housing Assistance Payments Program for Projects with HUD [U.S Department of Housing and Urban Development] Insured and HUD Held Mortgages, 24 CFR 886, Subpart A." Petition at ¶ 6. This proceeding is predicated on a "10 Day Notice to Terminate" dated March 14, 2016, annexed to and incorporated by reference in the petition, which notified the tenant that unless he moved out of the premises by April 3, 2016 the landlord would commence summary proceedings to remove him.

In the first paragraph of its 10 Day Notice to Terminate, petitioner notified respondent that it "elects to terminate your tenancy" on the grounds that he was both (1) violating a substantial obligation of his tenancy which he failed to cure¹, constituting "material non-compliance" with his lease agreement, and also (2) "permitting and/or committing a nuisance" or "maliciously, or by reason of gross negligence, substantially damaging the accommodation", or engaging in conduct which was "such as to interfere substantially with the comforts and safety of other tenants, thereby creating an objectionable tenancy". The notice goes on to list the following three bases (or sub-grounds) for eviction²:

(a) assignment and/or sublet of the premises without the landlord's prior written permission to unauthorized occupants, identified as "John Doe" and "Jane Doe", in violation of both the lease and the Building Rules and Regulations; this ground is supported by the following list of five factual allegations:

"1. Other tenants and building employees have advised that there are several other occupants residing in the premises.

2. The unauthorized occupants have been observed coming and going from the premises with keys to the apartment, the building and the mailbox.

3. The unauthorized occupants have acknowledged that they are residing in the premises.

4. The unauthorized occupants have been observed loitering through the building causing vandalism and damaging the landlord's property on an on-going basis over the last several months.

5. You did not request nor were you granted permission to allow additional occupants to reside in the premises."

(b) failure and/or refusal to report all occupants and their income on annual and/or interim income recertification forms, specifically the failure to report the presence and income of the aforementioned "John Doe" and "Jane Doe", in violation of specific paragraphs of the tenant's Lease Agreement and the Building Rules and Regulations, resulting in the landlord's inability to properly calculate the tenant's share of the rent and the possibility that the tenant is "receiving a subsidy well in excess of what you are legally entitled to"; and

(c) creation of a nuisance in the building, in violation of specific paragraphs of the tenant's Lease Agreement and the Building Rules and Regulations, due to the unauthorized occupants' "anti-social, disruptive and dangerous behavior in and around the building which has caused a substantial disturbance to other tenants and building employees", supported by the following list of five allegations:

"1. The unauthorized occupants have been loitering throughout the hallways and stairwells of the building at all hours of the day and night.

2. The unauthorized occupants have caused loud and disturbing noises while loitering throughout the hallways and stairwells at all hours of the day and night.

3. The unauthorized occupants have been vandalizing the landlord's property in that they have been observed breaking the lobby door and causing other damage to the walls and floors throughout the apartment.

4. The unauthorized occupants have been harassing and disturbing other tenants on an on-going basis.

5. The New York City Police Department has been contacted on several occasions regarding the nuisance conduct engaged in by you and/or the unauthorized occupants residing in your apartment. The unauthorized occupants have created a serious threat to the safety and well-being of other tenants and building employees. This conduct has been on-going from at least the fall of 2015 to the present."

Respondent, represented by counsel, moves to dismiss the proceeding under CPLR 3211(a)(7) based on (A) failure to state the facts in the petition and predicate notice with the required specificity; and (B) failure to comply with HUD procedures for terminating a Section 8 tenancy due to alleged fraud. In the alternative, respondent requests permission under CPLR 3012(d) to submit a late answer. Petitioner opposes, arguing that (I) it did adequately plead its causes of action; (II) HUD procedures regarding termination of a tenancy due to fraud are irrelevant in this proceeding, as it is not based upon allegations of fraud; and (III) respondent should not be permitted to file the proposed answer, as the only defense raised in it is the meritless claim of failure to follow HUD procedures for terminating a tenancy due to fraud.

The starting point for analyzing the sufficiency of the allegations in the predicate notice is Title 24 of the Code of Federal Regulations, Part 886, Subpart A, referenced by petitioner in paragraph 6 of its petition, and Part 247, which governs "Evictions from Certain Subsidized and HUD-Owned Projects".³ 24 CFR § 247.4(a) contains the requirements of a termination notice, which must be in writing and which must "state the reasons for the landlord's action with enough

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specificity so as to enable the tenant to prepare a defense." If the notice of termination is insufficient, the case must be dismissed. For example, in Swords v. Kemp, 2005 WL 3882063 (N. D. Calif. 2005), an unlawful detainer action against a tenant living in federally subsidized housing based on allegations of various types of objectionable conduct, the court found the predicate notice to be insufficient under 24 CFR § 247.4(a) and granted the tenant's motion for judgment on the pleadings, explaining, "Without including specific details of the incidents upon which the termination is based, including the date, time and alleged victim, Defendant would be hard pressed to prepare his defense to contest the termination". See also, e.g., Swords to Plowshares v. Smith, 294 F. Supp.2d 1067 (N.D. Calif. 2002)(in an eviction proceeding against a tenant living in federally subsidized housing based on allegations of various types of objectionable conduct, court found insufficient a notice that, although it identified specific allegations of objectionable conduct, failed to identify the alleged victims or the times or dates of the incidents); Edgecomb v. Housing Authority of Town of Vernon, 824 F. Supp. 312 (D. Conn. 1993)(in an action brought by former Section 8 tenants who had been notified that their housing subsidies were to be terminated due to their having engaged in drug related criminal activity, court found insufficient a notice that merely restated the regulation and did not indicate which family member committed the proscribed acts, what the nature of the alleged crimes were or when the relevant acts were committed); Lambert Houses Redevelopment Co. v. Jobi, 43 Misc 3d 1227(A)(Civ. Ct. Bx. Co. 2013)(in a nonpayment proceeding against a project-based Section 8 tenant the court found insufficient a predicate notice which failed to include all required information about the applicable annual recertification procedures); and compare New Greenwich Gardens Assoc. LLC v. Saunders, 23 Misc 3d 521, 871 N.Y.S.2d 901 (Dist. Ct. Nassau Co. 2009)(in a holdover proceeding against a Section 8 tenant based on allegations about the presence and actions of two specific, named individuals residing with the tenant without the landlord's consent, predicate notice found to be sufficient).

24 CFR § 247.3(a) sets forth the limited grounds upon which a landlord can seek to evict a tenant living in a covered project, and there are only four of them:

(1) Material noncompliance with the rental agreement;

(2) Material failure to carry out obligations under any state landlord and tenant act;

(3) Criminal activity or alcohol abuse;

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Other rules and procedures a landlord must follow in connection with terminating a project-based Section 8 tenancy are found in Chapter 8 ("Termination") of HUD Handbook [*4]4350.3 REV-1, entitled "Occupancy Requirements of Subsidized Multifamily Housing Programs" (hereinafter, "HUD Handbook"), which is binding on this court. Matter of Nelson v. Roberts, 304 AD2d 20, 757 N.Y.S.2d 41 (1st Dep't 2003); Impac Associates Redevelopment Co. v. Robinson, 9 Misc 3d 1065, 805...