Homestead Equities, Inc. v. Washington

• Decision Date: 16 March 1998
• Citation: 672 N.Y.S.2d 980,176 Misc.2d 459
• Parties: , 1998 N.Y. Slip Op. 98,225 HOMESTEAD EQUITIES, INC., Petitioner, v. Kimberly WASHINGTON, Respondent.
• Court: New York City Court

Page 980

672 N.Y.S.2d 980

176 Misc.2d 459, 1998 N.Y. Slip Op. 98,225

HOMESTEAD EQUITIES, INC., Petitioner, v. Kimberly WASHINGTON, Respondent.

Civil Court of the City of New York,

Kings County.

March 16, 1998.

Michael B. Archer, Brooklyn, for petitioner.

Kimberly Washington, respondent pro se.

ROLANDO T. ACOSTA, Judge.

In this holdover proceeding, petitioner landlord seeks, inter alia, a judgment of possession of respondent's Section 8 apartment. Upon respondent tenant's failure to appear in court on a date set for trial or otherwise answer the petition, petitioner promptly moved for a default judgment in its favor.

Although petitioner admitted in open court that respondent is a Section 8 tenant, petitioner failed to allege in the petition or notice of termination the Section 8 status of the apartment or compliance with federal regulations related thereto. Instead of setting forth those facts, petitioner alleged in the petition, inter alia, that "[t]he apartment is presently subject to the Rent Stabilization Law of 1969, as amended" and that the landlord "is in compliance with the rent stabilization law and code." That allegation, however, is inconsistent with (a) petitioner's additional statement in the petition that respondent entered into possession of the premises under a "monthly rental agreement," and (b) the Notice of Termination which simply states that the premises is "a 4 family dwelling" and that the "[p]remises is not subject to rent control or rent stabilization" (emphasis added).

Petitioner concedes that it had failed to set forth any allegations regarding respondent's Section 8 status or petitioner's compliance with applicable federal regulations associated therewith, but contends that the petition was nonetheless sufficient because, according to petitioner, it was simply not required to set forth such allegations. Prior to commencing the eviction proceeding, petitioner did nevertheless serve upon the New York City Housing Authority copies of the Notice of Termination and Petition and Notice of Petition--documents which do not apprise the Housing Authority of the Section 8 status of the tenant named or property described therein.

On a motion for a default judgment, the Court is obliged to review, inter alia, the sufficiency of the petition upon which the proceeding is based to determine whether the pleadings are sufficient and whether predicate notices were properly served. See, Central Park Gardens Inc. v. Ramos, N.Y.L.J., April 9, 1984, p. 12, col. 6 (App.Term 1st Dept.) ("Civil Court judges assigned the task of entertaining applications for entry of default final judgments ... do not function as mere automat[ons]. They should examine the pleadings.... If ... a true jurisdictional defect taints a proceeding, final judgment in landlord's favor may not be entered upon tenant's default"); Rasch, New York Landlord and Tenant, Summary Proceedings, 3rd Ed., § 45:2, at 168 ("On all applications for default judgments, the court need not necessarily grant them automatically. The court may examine the notice of petition and petition ...; for, if a jurisdictional defect taints a proceeding, final judgment in landlord's favor may not be entered on tenant's default").

Indeed, this judicial responsibility applies even in nonpayment proceedings where the court's discretion to refrain from granting a default judgment, unlike the Court's discretion in holdover proceedings, is limited by R.P.A.P.L. § 732(3). Matter of Brusco v. Braun, 84 N.Y.2d 674, 621 N.Y.S.2d 291, 645 N.E.2d 724 (1994). In Matter of Brusco, the Court of Appeals ruled that where, in a nonpayment proceeding, a tenant fails to appear in court to answer a petition and the landlord submits an affidavit of service of the petition, courts must "render" a default judgment in favor of the landlord pursuant to R.P.A.P.L. § 732(3), without delaying the summary proceeding for an inquest. Id. The Court's decision, however, was premised upon the assumption that a court deciding a motion for a default judgment should at the very least determine whether the petition is "proper in form and substance" and "demonstrates grounds for relief." Matter of Brusco, supra, 84 N.Y.2d at 679, 681, 621 N.Y.S.2d 291, 645 N.E.2d 724. That underlying assumption necessarily applies to holdover proceedings as well where the court's discretion to hold an inquest is not so statutorily constrained. See also, C.P.L.R. § 3215 et seq.

Furthermore, because one of the parties on a motion for a default judgment is, by virtue of the motion, not present to answer the motion, the Court must perform its obligations sua sponte, notwithstanding the absence of a motion challenging the sufficiency of the petition or the predicate notices.

In reviewing the petition in this summary proceeding, the Court finds that the petition is defective. It is well settled that where a landlord seeks to recover possession of a premises in a summary proceeding, he or she must allege in the petition the regulatory status of the premises and compliance with the regulations associated therewith. Villas of Forest Hills Company v. Lois Lumberger, 128 A.D.2d 701, 702, 513 N.Y.S.2d 116 (2nd Dept.1987); Giannini v. Stuart, 6 A.D.2d 418, 178 N.Y.S.2d 709 (1st Dept.1959). See also, R.P.A.P.L. § 741(1) (the petition must "[s]tate the interest of the petitioner in the premises"), § 741(2) (the petition must "[s]tate the respondent's interest in the premises and his relationship to petitioner with regard thereto"), § 741(3) (the petition must "[d]escribe the premises from which removal is sought"), and § 741(4) (the petition must "[s]tate the facts upon which the special proceeding is based").

Thus, where the tenant sought to be removed participates in a Section 8 program, the petition must allege the Section 8 status of the tenant and the premises and must allege petitioner's compliance with the Section 8 regulatory scheme. Sheridan 164th St. Assocs. v. Fountaine, --- Misc.2d ----, N.Y.L.J., February 24, 1995, p. 30, col. 5 (App.Term 1st Dept.); Agard v. Cajigas, --- Misc.2d. ----, N.Y.L.J., January 29, 1997, p. 28, col. 6 (Civil Court Kings Co.); Arditio v. Rosse, N.Y.L.J., May 26, 1993, p. 26, col. 3 (Civil Court Kings Co.); Rushie v. Simms, N.Y.L.J., December 3, 1988, p. 23, col. 4 (Civil Court Bronx Co.). These pleadings are required because they may determine the scope of the rights of the parties (see, Villas of Forest Hills Company v. Lois Lumberger, supra, 128 A.D.2d at 702, 513 N.Y.S.2d 116, MSG Pomp Corporation v. Doe, 185 A.D.2d 798, 800, 586 N.Y.S.2d 965 [1st Dept.1992] ), and may affect the manner in which the court "proceed[s]" with the action. 215-219 Union Avenue Association v. Miller, 134 Misc.2d 507, 510, 511 N.Y.S.2d 489 (City Court Westchester Co.1987).

Here, petitioner concedes, as it must, that neither the Section 8 status of the tenant or premises, nor compliance with the regulations related thereto, was alleged in the petition or notice of petition in this proceeding. Because this pleading defect prevents the Court from rendering a judgment in favor of petitioner [see, Villas of Forest Hills Company v. Lois Lumberger, supra, 128 A.D.2d at 702, 513 N.Y.S.2d 116; 251 East 119th Street Assoc. v. Torres, 125 Misc.2d 279, 280, 479 N.Y.S.2d 466 (Civil Court New York Co.1984) ], petitioner's motion for a default judgment is denied.

The only remaining question is whether the Court should dismiss the petition or grant petitioner an opportunity, not expressly requested by counsel, to amend its pleadings. The Court's resolution of that question is influenced by two sometimes competing principles of law--the law's preference for permitting parties to correct pleading infirmities by amendment [see, Birchwood Towers No. 2 Associates v. Schwartz, 98 A.D.2d 699, 700, 469 N.Y.S.2d 94 (2nd Dept.1983) ], and the law's concomitant demand that parties in a summary proceeding, governed as it is entirely by statute, "strict[ly] compl[y] with the statutory requirements" of the applicable law to confer jurisdiction upon the Court. See, MSG Pomp Corporation v. Doe, supra, 185 A.D.2d at 799-800, 586 N.Y.S.2d 965.

Here, although petitioner's failure to allege in the petition the regulatory status of the tenancy or compliance with applicable federal regulations alone may not be sufficient to warrant dismissal of the petition, numerous other defects in the petition and notice of termination in this proceeding collectively require that the petition upon which the proceeding is based be dismissed.

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