New York City Housing Authority v. Winkler

• Decision Date: 30 January 1998
• Citation: 672 N.Y.S.2d 972,175 Misc.2d 1018
• Parties: , 1998 N.Y. Slip Op. 98,244 NEW YORK CITY HOUSING AUTHORITY, Respondent, v. Abraham WINKLER, et al., Appellants.
• Court: New York Supreme Court — Appellate Term

Page 972

672 N.Y.S.2d 972

175 Misc.2d 1018, 1998 N.Y. Slip Op. 98,244

NEW YORK CITY HOUSING AUTHORITY, Respondent, v. Abraham WINKLER, et al., Appellants.

Supreme Court, Appellate Term,

Second Department.

Jan. 30, 1998.

Martin Tenenbaum, Brooklyn, for appellants.

Jeffrey Schanback, New York City (Mark F. Walter, of counsel), for respondent.

Present: SCHOLNICK, J.P., CHETTA and PATTERSON, JJ.

MEMORANDUM.

Final judgment unanimously affirmed without costs.

In this proceeding by the New York City Housing Authority to remove occupants on the ground that they are licensees whose license expired upon the death of the tenant of record, occupants defend, inter alia, on the ground that the petition and 10-day notice to quit are defective because they do not allege that a grievance proceeding was afforded them by the Authority and the outcome of such proceeding.

The Authority is required by federal regulation and by its own Management Manual to afford grievance hearings to those with colorable claims to remaining-family-member status (see, 24 CFR Ch. IX, part 966, Subpart B and particularly § 966.53[f]; In Re Adams, 94 B.R. 838; Nash v. Washington, 360 A.2d 510 [D.C. App.]; NYCHA Management Manual Ch. VII, § E[1][b] ). This rule is a statutory condition precedent which must be pleaded (see, 3 Weinstein-Korn-Miller, N.Y. Civ. Prac. p 3015.02).

However, the failure to make the required allegation does not require reversal. All the facts concerning the grievance proceeding were proven at trial and occupants suffered no prejudice as a consequence of landlord's failure to plead these facts in the petition. Under the circumstances, we deem the pleading amended to conform to the proof (see, CPLR 3026; Villas of Forest Hills Co. v. Lumberger, 128 A.D.2d 701, 513 N.Y.S.2d 116; Birchwood Towers # 2 Associates v. Schwartz, 98 A.D.2d 699, 469 N.Y.S.2d 94).

Further, there is no requirement that the 10-day notice to quit state the facts concerning the grievance proceeding (see, e.g., Helping Out People Everywhere, Inc. v. Deich, 160 Misc.2d 1052, 615 N.Y.S.2d 215; First Federal Savings and Loan v. Souto, 162 Misc.2d 224, 616 N.Y.S.2d 562; Katz v. Grifa, 156 Misc.2d 203, 591 N.Y.S.2d 758; but see the contrary Civil Court cases cited at 162 Misc.2d at 226, 616 N.Y.S.2d 562).

With respect to the issue whether occupants are entitled to a trial de novo of their claim to remaining-family-member status, our ruling in New York City Housing Authority v. Simmons (148...