Pri Villa Ave., L.P. v. Cocchia

• Decision Date: 10 September 2021
• Docket Number: L & T Index No. 43955/19
• Parties: PRI VILLA AVENUE, L.P., Petitioner, v. August COCCHIA, Respondent.
• Court: New York Civil Court

73 Misc.3d 483

155 N.Y.S.3d 35

PRI VILLA AVENUE, L.P., Petitioner,

v.August COCCHIA, Respondent.

L & T Index No. 43955/19

Civil Court, City of New York.

Decided on September 10, 2021

Kellner Herlihy Getty & Friedman LLP, by Charles E. Krausche II, Esq., for Petitioner

The Legal Aid Society, by Kayla Fonseca, Esq., for Respondent

Karen May Bacdayan, J.

The decision and order on this motion and cross-motion is as follows:

FACTS AND ARGUMENTS

Petitioner in this summary holdover proceeding, Pri Villa Avenue, LP ("Petitioner"), seeks to recover possession of the subject residential premises from respondent August Cocchia ("Respondent") on the basis that Respondent "[has] engaged in a course of objectionable conduct that interferes with the rights and comforts of others ...." (NYSCEF Doc. No. 24 at 9, notice of termination.) The essence of Petitioner's allegation is that Respondent has maintained the premises in a cluttered and unsanitary manner and has refused its attempts to declutter and exterminate. It is not disputed that Petitioner is a recipient of funding through the Shelter Plus Care Program, and that Respondent, a rent stabilized tenant, is a participant in the program. It is also not disputed that the premises is further governed by a regulatory agreement between Petitioner and New York City and consequently subject to Low Income Housing Tax Credit ("LIHTC") regulations. If Petitioner prevails, Respondent will lose both his home and his assistance through the program.

Respondent, now represented by counsel, has moved to dismiss the petition pursuant to CPLR 3211 (a) (7) arguing Petitioner has failed to state a legal and factual basis for this proceeding as required by RPAPL 741 (4) in that Petitioner has "failed to properly plead the regulatory status of the subject premise and its compliance with the federal rules and regulations that govern the Shelter Plus Care Program ...." (NYSCEF Doc No. 5, Fonseca affirmation ¶ 42.) Specifically, Respondent argues that Petitioner was required to and failed to allege in the petition that (1) the premises is subject to the federal regulations of the Shelter Plus Care program, (2) the premises is governed by a HOME Written Agreement and that the Petitioner receives subsidies pursuant to the federal HOME Investments Partnerships Program, and (3) the premises is subject to the LIHTC regulations. (NYSCEF Doc No. 5, Fonseca affirmation ¶ 50.) Respondent also moves to dismiss the petition on the grounds that Petitioner lacks standing to commence this proceeding because, contrary to the allegations in the petition, Petitioner is not the "owner of the premises." (NYSCEF Doc No. 5, Fonseca affirmation ¶¶ 17-18; see also NYSCEF Doc No. 24 at 6, verified petition ¶ 1.) Respondent contends instead that the proper party to the proceeding is Pri Villa Avenue Housing Development Fund Corporation ("the HDFC"), the entity that holds record title as indicated by the most recently recorded deed. (NYSCEF Doc No. 5, Fonseca affirmation ¶ 18.)

In the alternative, Respondent argues that Respondent has provided the court with a "hardship declaration" and the proceeding must accordingly be stayed pursuant to the COVID-19 Emergency Eviction and Foreclosure Act ("CEEFPA") as the grounds for this proceeding do not qualify Petitioner for an exception under CEEFPA to the stay provisions of same.¹ (NYSCEF Doc No. 5, Fonseca affirmation ¶¶ 82-83.)

In opposition, Petitioner contends that it has standing to commence the proceeding under RPAPL 721 (1) as the "landlord or lessor" in the parties’ lease agreement. (NYSCEF Doc No. 17 Krausche affirmation ¶ 3; NYSCEF Doc No. 19, Petitioner's exhibit A.) Petitioner clarifies that the Petitioner is the beneficial owner of the premises pursuant to a Declaration and Nominee Agreement with the HDFC (NYSCEF Doc No. 17, Krausche affirmation ¶ 4), and cross-moves to amend its petition to so state. (NYSCEF Doc No. 17, Krausche affirmation ¶ 25; NYSCEF Doc No. 21, Petitioner's exhibit C ¶ 1.) Petitioner also contends that there was no need to plead the existence of the HOME agreement as the premises is not governed by the HOME agreement (NYSCEF Doc No. 17, Krausche affirmation ¶ 14); that the LIHTC regulations do not provide Respondent with any substantive rights relevant to this holdover proceeding and therefore has not been prejudiced by the failure to plead same (NYSCEF Doc No. 17, Krausche affirmation ¶ 17); that the Respondent's participation in the Shelter Plus Care program was adequately pleaded (NYSCEF Doc No. 17, Krausche affirmation ¶ 18), and that any due process protections in the governing federal regulations are exceeded and obviated by protections provided for in the Rent Stabilization Code (NYSCEF Doc No. 17, Krausche affirmation ¶ 18); and that eviction for nuisance behavior satisfies the Shelter Care Plus Program "requirement that the housing provider only terminate in the ‘most severe case.’ " (NYSCEF Doc. No. 17, Krausche affirmation ¶ 23.)

Petitioner's cross-motion also seeks to amend the petition to specify that the premises is subject to the LIHTC regulations found in Section 42 of the Internal Revenue Code, and requests that the amended Petition attached to its motion be deemed as served on all parties. (NYSCEF Doc No. 17, Krausche affirmation ¶ 25; NYSCEF Doc No. 21, Petitioner's exhibit C ¶ 9.) Conspicuously, Petitioner has not moved to amend its petition to plead the Shelter Plus Care regulations, or its compliance with the rules and regulations that govern the Shelter Plus Care Program.

Respondent replies to Petitioner's opposition and opposes its cross-motion on the basis that the premises is in fact subject to a HOME written agreement (NYSCEF Doc No. 22, Fonseca reply affirmation ¶¶ 21-38), that the Petitioner's cited cases are distinguishable (NYSCEF Doc No. 22, Fonseca reply affirmation ¶¶ 29-32), that amendment of the petition is futile because Petitioner has already failed to provide Respondent with due process rights afforded by the Shelter Plus Care program regulations (NYSCEF Doc No. 22, Fonseca reply affirmation ¶¶ 41-53), and that Petitioner has not adequately demonstrated that this proceeding falls within any "nuisance exception" to the filing of a hardship declaration. (NYSCEF Doc No. 22, Fonseca reply affirmation ¶¶ 54-60).

The court first considers Respondent's motion to dismiss.

DISCUSSION

RPAPL 741 states in relevant part that:

"Every petition shall:" 1) State the interest of the petitioner in the premises from which removal is sought. 2) State the respondent's interest in the premises and his relationship to petitioner with regard thereto. 3) Describe the premises from which removal is sought. 4) State the facts upon which the special proceeding is based ...."

Where a tenancy is subject to a specific type of regulation, the petition must set forth the tenant's regulatory status, because this status may determine the scope of the tenant's rights. ( Matter of Volunteers of Am.-Greater NY, Inc. v. Almonte, 65 A.D.3d 1155, 886 N.Y.S.2d 46 [2d Dept. 2009], affg 17 Misc. 3d 57, 847 N.Y.S.2d 327 [App. Term, 2d 2007] ; see Cintron v. Pandis, 34 Misc. 3d 152[A], 2012 N.Y. Slip Op. 50309[U], 2012 WL 603746 [App. Term, 2d Dept. 2012] ). A petition which fails to satisfy this requirement is subject to dismissal. While a defect of this nature may be overlooked where no prejudice results to the tenant (see 17th Holding LLC v. Rivera, 195 Misc. 2d 531, 758 N.Y.S.2d 758 [App. Term, 2d Dept. 2002] ; see also Coalition Houses LP v. Bonano, 12 Misc. 3d 146[A], 2006 N.Y. Slip Op. 51516[U], 2006 WL 2167176 [App. Term, 1st Dept. 2006] ), for the following reasons it cannot be said that Petitioner's failure to make the required allegation was not prejudicial here.

The Shelter Plus Care Program "is designed to link rental assistance to supportive services for hard-to-serve homeless persons with disabilities (primarily those who are seriously mentally ill; have chronic problems with alcohol, drugs, or both; or have acquired immunodeficiency syndrome

(AIDS) and related diseases) and their families." ( 24 CFR 582.1.) Recipients of funding through the program "must assure that adequate supportive services are available to participants in the program." ( 24 CFR 582.300 [c] [emphasis added].) "Eligibility includes documentation ... that the client has a documented disability of indefinite duration and impedes the person's ability to live independently within the community." (NY Connects, Program Shelter Plus Care Housing , available at https://www.nyconnects.ny.gov/services/shelter-plus-care-housing-652 [last accessed August 31, 2021]; see also 24 CFR 582.5 [defining eligible disabilities].)

Consistent with the objective of the program, the governing regulations provide for termination of assistance to individuals in some circumstances, but "only in the most severe cases." ( 24 CFR 582.320 [a].) To ensure the integrity of the program, the regulations require that prior to termination of assistance to an occupant, recipients "examine all extenuating circumstances in determining when violations are serious enough to warrant termination." (Id. ) In furtherance of this goal, recipients must "provide a formal process that recognizes the rights of individuals receiving assistance to due process of law." ( 24 CFR 582.320 [b].) "This process at a minimum must consist of

(1) Written notice to the participant containing a clear statement of the reasons for termination;

(2) A review of the decision, in which the participant is given the opportunity to present written or oral objections before a person other than the person (or a subordinate of that person) who made or approved the termination decision; and

(3) Prompt written notice of the final decision to the participant." (Id. [emphasis added].)

The predicate notice of termination served herein, as is relevant to the Shelter Plus Care subsidy, summarily states that Respondent's behavior constitutes "good cause for...