Town of Oyster Bay Hous. Auth. v. Kohler
| Decision Date | 21 March 2012 |
| Docket Number | No. LT–003323–11.,LT–003323–11. |
| Citation | 950 N.Y.S.2d 611 |
| Parties | TOWN OF OYSTER BAY HOUSING AUTHORITY, Petitioner(s), v. Joseph KOHLER, Respondent(s). |
| Court | New York District Court |
OPINION TEXT STARTS HERE
Law Office of Carman, Callahan & Ingham, LLP, Farmingdale, Attorney for Petitioner.
Joseph Kohler, Beacon, Respondent pro se.
The following named papers numbered 1 to 3
submitted on this Motion on February 24, 2012
papers numbered
Notice of Motion and Supporting Documents1, 2Order to Show Cause and Supporting Documents
The Court has before it the functional equivalent of a motion by the respondent, appearing pro se, to vacate the judgment of possession and warrant of eviction issued on June 22, 2011, by way of respondent's default.
The petitioner, Town of Oyster Bay Housing Authority, commenced this summary holdover proceeding against Joseph Kohler, seeking to recover a judgment of possession and warrant of eviction for the premises located at 107–57 Central Park Road, Plainview, New York 11803.
The petitioner alleges that the tenancy between the parties terminated by the respondent's criminal conviction of VTL # 600.2 [Leaving Scene of an Accident With Personal Injury] and VTL # 1212 [Reckless Driving] in a separate and unrelated criminal proceeding. The petitioner contends that these convictions violate Paragraphs 7 and 13 of the lease.
Despite petitioner's counsel's knowledge that respondent has been incarcerated in the Fishkill Correctional Facility in upstate Beacon, New York, since February 18, 2009, the petitioner commenced this action on Saturday, June 10, 2011, by the service of a Petition and Notice of Petition in accordance with RPAPL # 735 [nail and mail] at the property sought to be recovered. A review of the affidavit of service attached to the Petition and Notice of Petition indicates that on June 13, 2011, a follow up mailing was sent to 107–57 Central Park Road, Plainview, New York 11803. In addition, on June 13, 2011, the Petition was filed with the Court. The Petition was noticed to be heard on June 22, 2011, at 9:30 a.m.
As the petitioner had knowledge respondent was no longer residing at this location, service in this manner would ordinarily be ineffective to confer personal jurisdiction ( see, Costa v. Franklin General Hospital, 121 A.D.2d 360, 502 N.Y.S.2d 795 [2d Dept 1986] ), as service is ineffective if it is made at a location where a tenant no longer resides. See 30–40 Associates Corp. v. DeStefano, NYLJ, 3/5/03, p. 18, col. 6 (App Term 2003).
The Court notes that since RPAPL # 735 does not specify how service is to be affected upon an incarcerated individual, reference may be made to New York's Correction Law # 620 which authorizes service of process upon an imprisoned individual. An officer to whom papers are delivered must, without delay, deliver those papers to the prisoner with the date and time of receipt noted thereon ( see,Correction Law # 620; Montes v. Seda, 208 A.D.2d 388, 626 N.Y.S.2d 61 [1st Dept 1994] ).
In the instant case, this Court is left to assume that the procedures set forth in Correction Law # 620 were followed because on June 20, 2011, this Court received a typed written letter from the incarcerated respondent. Attached to the letter was an envelope postmarked from a post office in Massapequa, New York, indicating that the petitioner mailed the respondent the Petition and Notice of Petition on June 13, 2011. The respondent's letter to this Court is dated June 16, 2011, and in sum and substance sought an adjournment of this matter for thirty (30) days in order to obtain counsel. This Court notes that the letter indicates that a carbon copy was sent to petitioner's counsel.
Despite this Court having received respondent's request for an adjournment, petitioner's attorney appeared on the return date as set forth in the Petition. This matter proceeded by inquest and the petitioner was awarded a Judgment of Possession and Warrant of Eviction.
Notably, the Court file jacket indicates that respondent failed to appear. It also has the notation “defendant incarcerated-upstate”. In addition, the words “defendant's answer filed7–11–2011”. (This Court notes that a thorough review of the file contains no answer that the respondent filed, before or after the judgment was awarded). This Court further notes that petitioner's counsel's claim that this Court granted the respondent's request for an adjournment is without basis ( see, Petitioner's Affirmation in Opposition pg 1, ¶ 4).
Subsequent to the issuance of the Judgment of Possession and Warrant of Eviction, the respondent has made several submissions to this Court.
On July 11, 2011, this Court received what respondent labeled a “Reply Affidavit”. This submission is essentially a motion to vacate the judgment of possession and warrant of eviction. Accordingly, this Court will treat it as such.
The respondent argued that his conviction for VTL # 1212 [Reckless Driving] and VTL # 600.2a [Leaving Scene with Personal Injury] was not a violation of the provisions of his lease. The respondent annexed an affidavit of service indicating service upon petitioner's counsel, Gregory Carman, Esq.
No action was taken on that submission.
Having received no response from this Court, on November 2, 2011, this Court received another motion from the respondent labeled a Motion to Re–Argue pursuant to CPLR # 2221. The respondent, in essence, again sought to challenge the grounds for the basis of his alleged violations of the lease.
On November 14, 2011, the Court, by Hon. Eric Bjorneby, issued an order denying the respondent's re-argument motion, on the grounds that it had not been served on petitioner's counsel.
On December 20, 2011, this Court received a third motion from the respondent. This submission was basically a copy of respondent's prior motion with an affidavit of service annexed to the cover page. It was sworn to by a notary public and attested to the fact that Greg Carman, Esq., the petitioner's counsel, was now properly served a copy of the motion.
On January 12, 2012, this Court received a letter from respondent, dated January 4, 2012. Respondent acknowledged that he was notified by the Clerk of the Court of the adjourned date of January 12, 2012. The respondent requested that this Court keep him informed of the determination of his motion, since he was unable to appear due to his incarceration.
On February 17, 2012, this Court received an Affirmation in Opposition by petitioner's counsel. The petitioner, in essence, argues that the judgement of possession and warrant of eviction should not be vacated. The petitioner further contends that respondent's criminal conviction violates paragraphs 7 and 13 of the lease.
The Court finds as follows:
In reviewing the Petition in the instant summary holdover proceeding, this Court finds it to be defective for several reasons. 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, 513 N.Y.S.2d 116 [2d Dept 1987]; Giannini v. Stuart, 6 A.D.2d 418, 178 N.Y.S.2d 709 [1st Dept 1958]; see alsoRPAPL # 741[1] [the petition must “[s]tate the respondent's interest in the premises and his relationship to petitioner with regard thereto”]; # 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 a tenant sought to be removed participates in a Federally Subsidized Housing program, the Petition must allege the regulatory status of the tenant, the regulatory status of the premises and must allege petitioner's compliance with the regulatory scheme ( Sheridan 164th St. Assocs. v. Fountaine, NYLJ, February 24, 1995, p. 30, col. 5 [App Term 1st Dept] ).
These requirements are necessary 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, 586 N.Y.S.2d 965 [1st Dept 1992] ) and may affect the manner in which the court “proceed[s]” with the action.
Significantly, the failure to allege the regulatory status of a tenancy may affect not only the Petition, but also may undermine a petitioner's attempt to comply with the requirements imposed by 24 CFR # 982.310(e)(2)(ii), that a landlord seeking to terminate a HUD tenancy serve upon the Public Housing Authority a copy of the notice of termination and Petition ( see, Williams v. New York City Housing Authority, 81 Civ 1801 [SDNY 1995] ).
This requirement, like its now extinct predecessor regulation, is designed to “give notice to the public housing agency administering Section 8 funding, that the continued possession of occupants in whom it has a substantial interest is threatened” (Jennie Realty Co. v. Sandberg, 125 Misc.2d 28, 30, 480 N.Y.S.2d 268 [App Term 1st Dept 1984] ). This is important not only to ensure that the public housing agency “does not continue to make housing subsidy payments on behalf of a tenant who is no longer in possession, but also to enable it to monitor the actions of the landlord and to afford it the opportunity to intervene if it deems it necessary to protect the interests of the section 8 tenant” (Lamlon Development Corp. v. Owens, 141 Misc.2d 287, 533 N.Y.S.2d 186 [District Court Nassau Co 1988]).
Thus, the question before this Court is whether or not the petitioner's failure to allege the specific federal housing program governing the respondent's tenancy requires a dismissal of this...
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