Fortune Soc'y v. Brown, 29800/2019

• Decision Date: 16 June 2020
• Docket Number: 29800/2019
• Citation: 128 N.Y.S.3d 788,68 Misc.3d 956
• Parties: The FORTUNE SOCIETY, Petitioner, v. Shawn BROWN "John Doe" and "Jane Doe", Respondents.
• Court: New York Civil Court

68 Misc.3d 956
128 N.Y.S.3d 788

The FORTUNE SOCIETY, Petitioner,
v.
Shawn BROWN "John Doe" and "Jane Doe", Respondents.

29800/2019

Civil Court, City of New York.

Decided June 16, 2020

128 N.Y.S.3d 789

The Bronx Defenders By: Emily Friedman, Attorney for Respondent, 360 East 161st Street, Bronx, New York 10451, Tel: (347) 842-2445, emilyf@bronxdefenders.org

Robert N. Mizrahi, Esq., Mizrahi Law Offices, LLC, Attorneys for Petitioner, 160 Broadway, Ste 1010, New York, NY 10038, Tel: (877) 995-2943

Bryant Tovar, J.

128 N.Y.S.3d 790

68 Misc.3d 957

The decision and order on this motion is as follows:

BACKGROUND & PROCEDURAL POSTURE

The Petitioner, The Fortune Society ("Petitioner"), commenced this holdover proceeding against Shawn Brown ("Respondent"), based on expiration of a lease. The Notice of Termination dated March 26, 2019 ("Termination Notice"), expired on May 14, 2019. Both sides are represented by counsel in this proceeding.

Respondent now moves to dismiss this proceeding pursuant to CPLR § 3211(a)(7), for failure to state a cause of action and failure to state the facts on which the proceeding is based pursuant to RPAPL § 741. In the alternative, Respondent seeks leave to interpose a late answer pursuant to RPAPL § 743 and, if leave is granted, to deem the proposed Verified Answer filed nunc pro tunc . Respondent also seeks the sealing of any sensitive information contained in the instant motion and contained in the Court file, including all medical and/or psychiatric information, pursuant to 22 NYCRR § 216.1.

The Law and Its Application

RPAPL § 741(4) requires that, in order to properly commence a summary proceeding, the petition is required to state the facts upon which the proceeding is based. It is well established law that among the facts required to be plead is the applicable regulatory status of the subject premises. ( MSG Pomp Corp. v. Jane Doe , 185 A.D.2d 798, 586 N.Y.S.2d 965 [1st Dept. 1992] ). A petition must plead the applicable regulatory status of the subject premises as well as any government contracts to which it is a party as "[t]he contract provide[s] the tenant with certain potential defenses." ( Volunteers of Am.-Greater New York, Inc. v. Almonte , 65 A.D.3d 1155, 1157, 886 N.Y.S.2d 46 [2d Dept. 2009] ).

To be entitled to relief in a summary proceeding, it is necessary that a landlord "plead rent regulatory status and compliance with the appropriate statutes and codes... and actually be in compliance therewith." Failure to do so renders

68 Misc.3d 958

the petition subject to dismissal. ( Villas of Forest Hills Co. v. Lumberger , 128 A.D.2d 701, 702, 513 N.Y.S.2d 116 [2d Dept. 1987] ["Although the failure to make the required allegation will not deprive the hearing court of jurisdiction of the matter since the defective petition may be corrected by amendment, the need to plead rent regulatory status and compliance with the appropriate statutes and codes and to actually be in compliance therewith is necessary for a court to order the requested relief."] [internal citations omitted]; East 168th Street Associates v. Castillo , 60 Misc. 3d 774, 79 N.Y.S.3d 485 [Civ. Ct., Bronx County 2018] ; Giannini v. Stuart , 6 A.D.2d 418, 178 N.Y.S.2d 709 [1st Dept. 1958] ; Homestead Equities v. Washington , 176 Misc. 2d 459, 672 N.Y.S.2d 980 [Civ. Ct., Kings County 1998] ; Westchester Gardens, L.P. v. Lanclos, 43 Misc. 3d 681, 982 N.Y.S.2d 302 [Civ. Ct., Bronx County 2014] ["Landlord's failure to particularly allege the existence of these contracts, rules and regulations appears fatal to this proceeding because neither tenant nor the court were put on notice of the laws governing the tenancy or the substantive rights involved."] )

Respondent's motion states her tenancy is subject to participation in the NY/NYIII supportive housing program¹ . NY/NYIII

128 N.Y.S.3d 791

is a permanent supportive housing program funded through and regulated by the New York State Office of Alcohol and Substance Abuse Services ("OASAS") and the New York City Department of Health and Mental Hygiene ("DHMH").

Respondent argues the Petition in the instant proceeding is defective due to Petitioner's failure to include any reference to the NY/NYIII agreement, Petitioner's compliance with OASAS or DHMH regulations related to that program, or...