Greenport Pres. v. Heyward

• Decision Date: 17 December 2021
• Citation: 2021 NY Slip Op 21356
• Parties: Greenport Preservation, L.P., Appellant, v. Tammy Heyward and Nicholos Battle, Respondents, "John Doe" and "Jane Doe," Undertenants.
• Court: New York Supreme Court

2021 NY Slip Op 21356

Greenport Preservation, L.P., Appellant, v. Tammy Heyward and Nicholos Battle, Respondents,

"John Doe" and "Jane Doe," Undertenants.

Supreme Court of New York, Second Department

December 17, 2021

Gutman, Mintz, Baker and Sonnenfeldt, P.C. (Tamra Pelleman and Gary Friedman of counsel), for appellant.

The Legal Aid Society (Katie Redmon of counsel), for respondents.

PRESENT: DAVID ELLIOT, J.P., MICHELLE WESTON, DONNA-MARIE E GOLIA, JJ

Appeal from an order of the Civil Court of the City of New York Queens County (Sergio Jimenez, J.), dated August 11, 2020. The order, insofar as appealed from as limited by the brief dismissed the petition pursuant to CPLR 409 (b) in a nonpayment summary proceeding.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Landlord, the owner of a project-based Section 8 building, commenced this nonpayment proceeding by petition dated August 20, 2019. Landlord served a predicate notice upon tenants which, in addition to demanding rent, provided that landlord "elects to terminate" the tenancy as a result of tenants' "failure to make timely rental payments" and that the tenancy was "deemed terminated as of August 15, 2019." Following tenants' motion for, among other things, summary judgment dismissing the petition, the Civil Court asked the parties for supplemental memoranda of law on the language of the predicate notice. The Civil Court subsequently, among other things, denied tenants' motion but dismissed the petition pursuant to CPLR 409 (b).

It is well settled that a nonpayment proceeding can be maintained only where there is a landlord-tenant relationship between the parties (see Lakeview Affordable Hous., LLC v Turner, 66 Misc.3d 142 [A], 2020 NY Slip Op 50163[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020] [in a nonpayment proceeding against tenants in a project-based Section 8 building, the Appellate Term dismissed the petition because a 10-day notice attached to the petition purported to terminate the tenancy based upon the nonpayment shortly prior to the commencement of the proceeding and the defect was not amendable]; see also RPAPL 711 [2]; Putnam Realty Assoc., LLC v Piggot, 44 Misc.3d 141 [A], 2014 NY Slip Op 51306[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Strand Hill Assoc. v Gassenbauer, 41 Misc.3d 53, 54 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; 265 Realty, LLC v Trec, 39 Misc.3d 150[A], 2013 NY Slip Op 50974[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Shahid v Carillo, 18 Misc.3d 136 [A], 2008 NY Slip Op 50278[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, the predicate notice annexed to the petition provided that the "tenancy is deemed terminated as of August 15, 2019," and the petition is dated August 20, 2019. The proceeding was therefore commenced after the tenancy had purportedly been terminated, rendering the nonpayment petition facially insufficient (see Lakeview Affordable Hous., LLC v Turner, 2020 NY Slip Op 50163[U]).

We acknowledge that 24 CFR Part 247, applicable to subsidized Section 8 projects such as the one in which the subject apartment is located (see 24 CFR 247.1), defines "[e]viction" as "the dispossession of the tenant from the leased unit as a result of the termination of the tenancy, including a termination prior to the end of a term or at the end of a term" (24 CFR 247.2) and that 24 CFR 247.6 prohibits a landlord from "terminat[ing] any tenancy" except in accordance with the requirements of 24 CFR Part 247, Subpart A. The only permissible grounds for the termination of such a tenancy are listed in 24 CFR 247.3 (a), and they include "material noncompliance with the rental agreement" (24 CFR 247.3 [a] [1]), which incorporates nonpayment of rent (see 24 CFR 247.3 [c]). To terminate a tenancy, 24 CFR 247.4 mandates service of a notice that must, among other things, "[s]tate that the tenancy is terminated on a date specified therein" and advise that failure to vacate may result in the commencement of judicial proceedings (24 CFR 247.4 [a] [1] [3]), and it must include specific language in the case of a termination based upon a tenant's failure to pay rent (see 24 CFR 247.4 [e]). Landlord argues that its predicate notice complies with these requirements, and therefore that the nonpayment petition should not have...