Mau v. Stapleton

• Decision Date: 12 August 1987
• Citation: 136 Misc.2d 793,519 N.Y.S.2d 178
• Parties: Loretta MAU, Petitioner, v. Loretta STAPLETON, Respondent.
• Court: New York City Court

Page 178

519 N.Y.S.2d 178

136 Misc.2d 793

Loretta MAU, Petitioner, v. Loretta STAPLETON, Respondent.

Civil Court of the City of New York Kings County, Part 19.

Aug. 12, 1987.

Michael P. Goldberg, Brooklyn, for petitioner.

David Pieragostini, Brooklyn Legal Services Corp., Brooklyn, for respondent.

MARGARET CAMMER, Judge.

Respondent/Tenant is a participant in the Section 8 Federal housing subsidy program. Petitioner seeks to evict respondent on a claim that she needs the premises for use by a family member.

Respondent moves to dismiss the petition on the grounds that petitioner has not requested and received the required written authorization from the New York City Housing Authority (NYCHA) to commence these proceedings. Petitioner opposes the motion arguing that NYCHA authorization received prior to the dismissal of a previously dismissed proceeding is valid for the purposes of the instant proceeding.

To evict a Section 8 tenant, a landlord must first request and receive written authorization from NYCHA (See Stipulation and Order, U.S.Dist.Ct., S.D.N.Y., 81 Civ. 1801, June 9, 1982). Petitioner made a request for such authorization on August 28, 1986. After receiving written authorization on September 8, 1986, a summary proceeding was commenced. That proceeding, however, was dismissed on March 2, 1987 because petitioner failed to attach the written authorization to the pleading as required. (Mau v. Stapleton, L & T Index No. 102884/86, March 2, 1987). ¹

The issue for determination here is whether an authorization, procured as the predicate for a dismissed proceeding, is valid for the purposes of a new proceeding commenced over nine months after the authorization was issued.

Before any NYCHA authorization to evict can be granted, a tenant must first receive notice of the request and be given at least ten days to respond to the allegations. In making the request, a landlord must allege facts to support his or her grounds for eviction, 24 C.F.R. § 882.215. Such notice and authorization "are essential elements of summary proceedings to evict Section 8 tenants." Jennie Realty Co., v. Sandberg, 125 Misc.2d 28, 480 N.Y.S.2d 268 (A.T. 1st Dept., 1984).

Petitioner, claiming she needed the subject apartment for a family member, received written authorization in September 1986, nearly a year ago, to "commence eviction proceedings in accordance with local law." While she commenced such proceedings, she failed to comply with local law (by failing to attach the written authorization to the pleading), and, accordingly, the proceeding was dismissed. At that point, the case was terminated and respondent was no longer on notice of any eviction attempt.

Upon dismissal of a holdover proceeding, a respondent is entitled to a certain peace of mind that an eviction is no longer pending. Thus, a 30-day notice terminating a tenancy is void upon dismissal of the proceeding thereon, and a new 30-day notice is required to be served before a new proceeding may be commenced. Colavolpe v. Williams, 77 Misc.2d 430, 354 N.Y.S.2d 309 (Civ.Ct. Kings Co. 1974); Weinberger v. Driscoll, 89 Misc.2d 675, 392 N.Y.S.2d 236 (Civ.Ct.N.Y.Co., 1977); Haberman v. Wager, 73 Misc.2d 732, 342 N.Y.S.2d 405 (Civ.Ct.N.Y.Co., 1973). ² The purpose of the thirty day notice, as with the authorization request, is to inform the tenant of an impending proceeding and the grounds upon which it will be based so that the tenant may respond. Such notices should not be allowed to "hang like a sword of Damocles over the head of a tenant, to be used at some future date at the whim of the landlord." Colavolpe v. Williams, supra 77 Misc.2d at p. 431, 354 N.Y.S.2d 309. Rather, once the proceeding has been dismissed the tenant is once again entitled to new notice. The same reasoning certainly holds true for the authorization to evict.

It is now eleven months since authorization was received. Can petitioner make the same allegations at this time in support of her eviction request? Will NYCHA still find those allegations sufficient? Does respondent now have additional information which would effect NYCHA's decision? These questions can only be answered upon a new request for authorization on notice to respondent. To hold that the prior authorization continues to be valid when circumstances may likely have changed places respondent in a continuous and unsettling state of uncertainty. If...