Downtown Hosp. (Booth House) v. Sarris

• Decision Date: 13 August 1992
• Citation: 588 N.Y.S.2d 748,154 Misc.2d 798
• Parties: New York Infirmary--Beekman DOWNTOWN HOSPITAL (BOOTH HOUSE), Petitioner, v. Curt SARRIS & Ramon Ramos, Respondents.
• Court: New York City Court

Page 748

588 N.Y.S.2d 748

154 Misc.2d 798

New York Infirmary--Beekman DOWNTOWN HOSPITAL (BOOTH HOUSE) Petitioner, v. Curt SARRIS & Ramon Ramos, Respondents.

Civil Court of the City of New York,

New York County, Housing Part 18.

Aug. 13, 1992.

Whitehorn and Delman, New York City, for petitioner.

G.M.H.C., Inc., Legal Services, New York City, for respondents.

NORMAN C. RYP, Justice.

"He who refuses aid which he has the power to give is accountable to justice." Flavius Josephus, Against Apion II 27, 37 AD.

A. ISSUES

1. Whether a Thirty Day Notice to Terminate Tenancy under Real Property Law 232-c, by a non-profit hospital which only alleges, "Tenant initially obtained possession of the premises as an incident of his employment by Landlord. The employment is terminated." is legally sufficient?

2. Whether a staff housing lease which provides for termination "without cause" is enforceable where the tenant/employee alleges a prior AIDS disability revelation and retaliation? A discriminating issue of first impression.

B. PROCEDURAL HISTORY AND FACTS

In these two (2) holdover summary proceedings concerning subject premises, i.e. (Booth House) No. 318 East 15th Street, New York, New York, (Apts. # 1C Room B--Curt Sarris and 8N--Ramon Ramos), these two (2) identical counsels' respondents' CPLR 408 and 3102 motions for discovery and petitioners' cross-motions directing an inquest for respondents' failure to timely file their answer are consolidated for determination.

Both petitions were grounded upon petitioner's entry into a written lease agreement with each respondent (Sarris--4/23/84; Ramos--4/13/82) of subject premises sought to be recovered as incident to employment (Sarris--over 5 years as data entry clerk; Ramos--over 25 years as inventory clerk and rehabilitation worker)--(Resp.Affs. in Support [Original Motion] dated 4/24/92)--each terminated without cause under Para. 1 of said leases by 30 day prior written notices, respectively dated Sarris--2/7/92; Ramos--1/29/92.

Previously, respondents moved to dismiss under CPLR 3211(a)(2) [lack of subject matter jurisdiction] (7) [legal insufficiency] & (8) [personal jurisdiction], which this Court denied by Order dated April 29, 1992, without prejudice, following joinder of issue (wherein the Court directed respondents to serve and file their answer on or before May 20, 1992) for insufficient supporting facts, with a trial date fixed for May 28, 1992 on the Housing Part 18 Calendar. Thereafter, respondents served and filed their respective notices of appearance and answers curiously dated June 1 and filed July 10, 1992, which interposed various denials and affirmative defenses including lack of personal jurisdiction and subject matter jurisdiction (First, Second, Third, Fifth, Sixth & Seventh); legal sufficiency (Fourth); rent stabilized tenancy (Third & Eighth); laches (Ninth) and retaliatory eviction (under RPL § 223-b) following respondents' disclosure of AIDS diagnosis in violation of common law and NYC Administrative Code, plus two (2) counterclaims, the first claiming $500,000 for mental anguish, severe mental distress and financial hardship and the second for $5,000 for legal fees.

The petition alleges that petitioner, a New York State limited profit housing company, organized and existing under Article II, New York State Private Finance Law owns and operates Booth House, which includes subject premises. (See, Exh. B Aff. Jos. Delman, dated 4/28/92). According to the petitioner, subject premises are exempt as non-profit hospital institutions, from the New York City Rent Control (NYC Admin Code Tit. Y51-3.0(e)(2) and (g)) and Rent Stabilization Law (RSL) (L.1974, C. 576, § 5(a)(6)) or Emergency Tenant Protection Act (ETPA) § 5(a)(6) as amended, Omnibus Housing Act of 1983 (OHA) § 55. See New York Univ. v. Owens, N.Y.L.J., 6/6/90, P. 21, Col. 2 (App. Term 1st Dept.1990). The only RSL exception appears to be if respondent tenant was not affiliated or employed by the institution at initial occupancy or signed an initial lease, without affiliation or employment, before July 1, 1978. (See, Trustees of Columbia University v. James, 127 Misc.2d 81, 489 N.Y.S.2d 669 [App.Term 1st Dept.1985] aff'd w/o op., 123 A.D.2d 904, 507 N.Y.S.2d 821 [1st Dept.1986]; see, RSL--NYC Admin.Code 26-511, para. c[9]. Such exception does not appear, based upon submissions, to apply to either respondent. Petitioner is subject to NY State Code of Rules and Regulations (NYCRR), including Vol. 9 Executive Law 1727-5.3 (Termination by Housing Company) which covers grounds where a certificate of no objection by the NY State Commissioner of Housing and Community Renewal is and is not required. NYCRR § 1727.3 subdivision (b) [Certificate not required] in subsection (1) thereunder provides:

"where the tenant occupies an apartment in a building operated by a company for the purposes of staff housing and said tenant is not a staff member, employee or student of a college, university or hospital."

It further appears that subject [Booth House] lease agreements in para. 13 therein, further provides:

"... this agreement shall terminate automatically upon the date that tenant ceases to be employed by the Landlord, and no notice of said termination shall be required."

While the foregoing appears to mandate this Court to deny, per se, the current motion, referred to this Court on June 30, 1992, CPLR 408 and 3124--current status as a rent stabilized tenant in the absence of evidence bringing respondents within the above noted RSL exception, this does not simply relegate the respondents to the compassion and "mercy of the Court".

C. LEGAL ANALYSIS AND FINDINGS

Upon a full review of all the pleadings and motional submissions, this Court reconsiders, whether under CPLR 2001 (Mistakes, Omissions etc.) or converted under CPLR 2221 as a motion to reargue/renew, in the interest of justice, equity and judicial economy, its Decision and Orders dated May 6, 1992, under a misapprehension of law, and fact, which denied respondent's CPLR 3211(a)(7) motion to dismiss.

The bases are twofold.

1. 30 Day Notice of Termination.

First, Paragraph '4' of the petition alleges in each case:

"... On or about April [sic: 23, 1984--Sarris, 13, 1982--Ramos], petitioner as landlord, entered into a written agreement of lease with respondent tenant for the premises sought to be recovered as an incident to the employment of respondent by petitioner, for a term which ended as a result of the termination of respondent's employment by petitioner."

As noted above, petitioner's attorney in his supporting affirmation in opposition, both dated April 28, 1982, in each case alleged: "Neither the lease (Exch. A) nor the regulations (Exch. C) require any grounds or reasons for termination. It is the fact of termination and not the gravamen therefore that determines the right to continued occupancy." While this Court does not accept petitioner's attorney's legal conclusion, under the facts and circumstances herein (for the reasons set forth below), the current focus is upon the sufficiency of subject 30 Day Notice of termination.

In opposition, respondent alleged:

"6. Specifically in its petition, attached as Exhibit A, petitioner alleges that my employment was terminated without alleging how or when my employment terminated." (See, para. 6, Resp.Aff. in Support, dated April 24, 1992).

Petitioner's annexed (to petitions) Thirty Day Notices, dated February 7, (Sarris) & January 29, (Ramos) 1992, (evidently correctly required, under RPL § 232-c, by Order of Judge Jay Stuart Dankberg, dated September 30, 1991, in a prior proceeding (L & T # 88055/91) involving respondent Ramos et al.) respectively state, inter alia, as follows:

"Tenant initially obtained possession as an incident of his employment by Landlord. The employment has terminated."

While respondent, Sarris, disputes this (claiming tenancy 8 years & employment 5 years--see, Paras. 3 & 4--Aff. in Support, dated 4/24/92), this is not salient at this point. The undisputed fact is that said Thirty Day Notice omits any detail as to when (prior or by virtue of the Thirty Day Notice, and if prior how long before same) how and where noticed (personally or by mail, with pay check) in what form (written or oral) or why (at a minimum for non-discriminatory reason [AIDS disability as respondents have claimed] Aff. in Supp.--dated April 24, 1992). Thus, this notice which purports to terminate respondents' tenancy is inadequate in that it fails to properly or effectively apprise respondents of specific grounds upon which petitioner intends to prove there is a valid termination of tenancy under RPAPL 741[4]. See, Margolies v. Lawrence, 67 Misc.2d 468, 324 N.Y.S.2d 418 (Civ.Ct.N.Y.Co.1971). It simply canceled out respondents as employees and tenants by a bare conclusory allegation. Strict compliance with statutory requirements is necessary to give the Court jurisdiction. Giannini v. Stuart, 6 A.D.2d 418, 178 N.Y.S.2d 709 (1st Dept.1958); Stratford Arms v. Petty, n.o.r. N.Y.L.J. Jan. 13, 1979 (App. Term: 1st Dept.1979). A Thirty Day Notice of Termination concerns subject matter jurisdiction and cannot be retroactively cured. Chinatown Apts. v. Chu Cho Lam, 51 N.Y.2d 786, 433 N.Y.S.2d 86, 412 N.E.2d 1312 (1980).

For the aforementioned reasons, alone, this Court finds, in fact and law, that subject Thirty Day Notices, are insufficient in law thus mandating dismissal of both petitions, without prejudice.

2. AIDS Disability Discrimination.

This Court further finds, in fact and law, that notwithstanding the provisions of paras. 5) and 13) of the Booth House Lease Agreements that apparently allow termination of respondents' employment (and ancillary housing tenancy) to be terminated "with or without cause", such are subject to New York City, New York State and Federal laws that bar employment discrimination because of a disability, which New...