Dwyer v. Wimbush

• Decision Date: 29 January 2019
• Docket Number: 3327-18
• Citation: 113 N.Y.S.3d 479 (Table),62 Misc.3d 1213 (A)
• Parties: Kenneth M. DWYER, Petitioner-Landlord, v. Willie WIMBUSH, Respondent-Tenant.
• Court: New York City Court

62 Misc.3d 1213 (A)

113 N.Y.S.3d 479 (Table)

Kenneth M. DWYER, Petitioner-Landlord,

v.Willie WIMBUSH, Respondent-Tenant.

3327-18

City Court, New York, Mount Vernon.

Decided on January 29, 2019

Nat Sripanya, Gross & Stabile, LLP, 9 W. Prospect Avenue, Suite 406, Mount Vernon, New York 10550, Attorneys for Petitioner.

Theresa Gerardi, Esq., Legal Services of the Hudson Valley, 100 East First Street, 8th Floor, Mount Vernon, New York 10550, Attorneys for Respondent.

Adrian N. Armstrong, J.

In this holdover proceeding, the respondent submits a motion seeking dismissal of this case on the grounds that the petitioner failed to sufficiently state the facts upon which the special proceeding is based pursuant to Real Property Actions and Proceedings Law ("RPAPL") § 741(3). Petitioner opposes the motion.

The holdover petition served on the respondent in this proceeding states that respondent is the tenant of the subject premises and that she entered into possession of the premises under a written rental agreement made on or about November 11, 1986 for a term of years, the last month commencing on November 1, 2018 and ending on November 30, 2018 at rental of $ 635.00 for each month payable in advance on the 1st day of each month. The petition further states that the term for which said premises were rented by the respondent expired on November 30, 2018. The petition further states that the premises are not subject to the Emergency Housing Rent Control Law ("Rent Control"), but are subject to the Emergency Tenant Protection Act (the "ETPA"). The petition also states that respondent's tenancy was duly terminated by the timely service of a Thirty Day Notice of Termination of Tenancy, a copy of which together with proof of service is attached to the petition. The Notice of Termination of Tenancy, dated October 17, 2018 states that petitioner is electing to terminate the tenancy now under monthly hiring of the respondent.

In her motion papers, respondent contends that her motion to dismiss should be granted because: 1) the premises are subject to rent control laws not the ETPA, and 2) the notice of termination is defective for failing to state a lease violation.

Respondent argues that she has been a tenant of the subject premises since June 1, 1966 not 1986 as stated in the petition. She argues that she has continuously occupied the premises since 1966. A copy of a Division of Housing and Community Renewal ("DHCR") Order Determining Facts or Fixing Maximum Rent" issued on June 1, 1966 is attached to the respondent's motion papers. Respondent affirms that she signed a two-year lease for the premises in 2016 for a monthly rent of $ 635.00 and that the lease expired in August 2018. Upon expiration of the lease, the petitioner offered her a new lease at the increased rate of $ 883.92. Respondent states that she refused to sign the new lease due to the large increase in the rent amount. A copy of the ETPA Lease "For Rent Stabilized Tenants" renewal lease is attached to the papers as Exhibit C. According to the renewal lease, the term was to commence on September 1, 2018 and end on August 31, 2020. The lease appears to be signed by the petitioner. There is no signature for the respondent. Respondent argues that the notice of termination does not state that she violated her lease. She also maintains that her rent is paid in full.

In opposition to the motion, the petitioner argues that respondent's allegation that the apartment is subject to rent control is not supported by any evidence other than respondent's own affidavit. Petitioner argues that there is an issue of fact and question of law regarding the regulatory status of the premises. Petitioner maintains that the petition clearly states that the apartment is subject to the ETPA not rent control by reason of vacancy decontrol.

In reply, respondent affirms that the DHCR document dated June 1, 1966 supports her claim that she has been residing in the apartment since 1966 and that the the apartment is subject to the rent control law and not ETPA. She also argues that she has resided in the apartment continuously since 1966 and that the petitioner has provided no evidence to support his claim that the apartment was decontrolled due to a vacancy. Respondent argues that per DHCR statutory provision 9 NYCRR § 2203.(2)(a) petitioner was required to file a report of decontrol when an apartment becomes decontrolled. Respondent argues that petitioner has failed to produce said report. Thus respondent maintains that the premises have not been decontrolled pursuant to a vacancy and that she is entitled to lease renewals as a rent controlled tenant. She argues that the notice of termination is defective whether the tenancy is rent controlled or subject to the ETPA because it fails to provide a good cause basis for the eviction.

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 [NY Civ. Ct. 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 [1998].

RPAPL § 741 provides that a petition must state, inter alia, the interest a tenant has in the premises and the facts upon which a proceeding is based. When the tenancy is subject to a specific rent regulation, the petition must state the tenant's regulatory status because this status will determine the scope of the tenant's rights in the summary proceeding ( Cintron v. Pandis , 34 Misc 3d 152 (A) [2d Dept. 2012] ). A simple misstatement concerning the regulatory status of a tenancy will not render the petition jurisdictionally defective (Routolo v. Garzillo , 86788/15, NYLJ 1202781160330 at 1 (Civ Ct. Kings co, Decided February 16, 2017); 2017 NYLJ LEXIS 659 (citing 17th Holding LLC v. Rivera , 195 Misc 2d 531 [2d Dept 2002] ). However, where a petition contains ‘fundamental misstatements and omissions’ it will be dismissed ( Cintron v. Pandis, 34 Misc 3d 152(A) (citing Jeffco Mgt. Corp. Local Dev. Corp. of Crown Hgts., 22 Misc 3d 141 (A) [App. Term 2d, 11th 7 13th Jud Dists 2009]; see also McFadden v. Sassower, 26 Misc 3d 141(A) [2d Dept 2010] ); Joseph M. d'Assern Hous. Corp. v. Day , 24 Misc 3d 132(A) [2d Dept 2009] (holdover petition dismissed failure to plead Mitchell-Lama regulatory status of tenancy).

In the instant case, the petition clearly states that the respondent entered into possession of the subject premises under a written rental...