Eugene Smilovic Hous. Dev. Fund Corp. v. Lee, 74331/2017

CourtNew York Civil Court
Citation110 N.Y.S.3d 894 (Table),61 Misc.3d 1216 (A)
Docket Number74331/2017
Parties EUGENE SMILOVIC HOUSING DEVELOPMENT FUND CORPORATION, Petitioner-Landlord, v. Eugenia LEE, "Jane Doe," "John Doe," Respondent-Tenant.
Decision Date25 October 2018

61 Misc.3d 1216 (A)
110 N.Y.S.3d 894 (Table)

Eugenia LEE, "Jane Doe," "John Doe," Respondent-Tenant.


Civil Court, City of New York.

Decided on October 25, 2018

Jason D. Boroff & Associates, PLLC, by Jason Boroff, Esq. — for the Petitioner

The Legal Aid Society, by Jason M. Hadley, Esq. — for the Respondent

Karen May Bacdayan, J.

Recitation, as required by CPLR 2219 (a), of the papers considered in review of this motion.

Papers /Numbered

Notice of Motion and Affidavits Annexed 1

Notice of Cross-Motion and Affirmation in Opposition 2

Affirmation in Reply and in Opposition to Cross-Motion 3

Affidavit of Eugenia Lee, dated 14 September 2018 4

Exhibits 5

After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:


This is a holdover proceeding brought against Respondent, Eugenia Lee, alleging that her license to occupy the premises expired upon the death of her husband, Joseph Lee. The premises is a HUD-subsidized "Section 202" project which provides supportive housing for the elderly (defined in the relevant statutes and regulations as 62 years of age or older at the time of initial occupancy). Respondent, Eugenia Lee, was born on March 19, 1958. She moved into the subject premises with her husband, Joseph Lee, in May 2004, and has resided there continuously for the last 14 years. Mr. Lee, the tenant of record and head of household, passed away in September 2013 when Respondent was 55 years old. Respondent is currently 60 years old.

Petitioner moves for summary judgment as a matter of law on the grounds that Respondent cannot remain in the apartment after the death of her husband because she does not meet the definition of "elderly." Petitioner also moves for use and occupancy, not under any provision of law, but because "Petitioner cannot afford to lose this much income and remain operational" as a not for profit Housing Development Fund Corporation.

Respondent opposes on the basis that there exist material issues of fact sufficient to defeat Petitioner's motion. Respondent claims that Petitioner, by referring to Respondent as the "tenant," "spouse," and "co-head [of household]" in correspondence with the Department of Social Services ("DSS"), by accepting shelter payments made by DSS on her behalf for two years, and by accepting documents for recertification (though "no one ever contacted [her]") has waived its right to proceed against Respondent as a licensee.1 Respondent also cross-moves for leave to serve a late Answer. In reply, Petitioner argues that Respondent has not raised triable issues of fact sufficient to defeat a motion for summary judgment, and that Respondent's opposition consists only of an affirmation from her attorney. On October 1, 2018, two weeks after Petitioner served its affirmation in reply and opposition papers, Respondent served and filed an affidavit from Respondent supporting his cross-motion and detailing Respondent's disabilities. Petitioner has objected to this affidavit as an impermissible sur-reply.2

Oral argument was heard on October 4, 2018.


With respect to Respondent's application to interpose its Answer, RPAPL 743 provides that the deadline to answer a holdover petition is "the time when the petition is to be heard." When the proceeding itself is adjourned, however, the time to answer is likewise adjourned, unless otherwise directed by the court or agreed upon by the parties. ( Gluck v. Wiroslaw , 113 Misc 2d 499 [Civ Ct, Kings County 1982] [answer timely where no demand for answer three days prior to the hearing was made];3 see also City of New York v. Candelario , 156 Misc 2d 330 [App Term, 2d Dept 1993] affd in part, revd on other grounds 223 AD2d 617 [2d Dept 1996] ; 974 Anderson LLC v. Davis , 53 Misc 3d 1220[A], 2016 NY Slip Op 51765[U] [Civ Ct, Bronx County 2016], citing Picken v. Staley , 2011 NY Slip Op 33237[U] [Civ Ct, NY County 2011].) Accordingly, Respondent's cross-motion is granted at the outset to the extent of deeming Respondent's proposed answer timely served and filed.

Summary judgment is properly granted after joinder of issue where "upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." ( CPLR 3212[b].) Summary judgment is a remedy which should only be employed when there is no doubt as to the absence of triable issues. ( Andre v. Pomeroy , 35 NY2d 361, 364 [1974].) On such a motion, the court's function is to find, rather than to decide, issues of fact. ( Southbridge...

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