Opinion
Index No. LT-315862-23/KI
03-11-2024
107-31 Corp., Petitioner, v. Carmen Aquino, Respondent.
Andrew Mark Tilem, Esq. - for the petitioner The Legal Aid Society - for the respondent
Andrew Mark Tilem, Esq. - for the petitioner
The Legal Aid Society - for the respondent
Karen May Bacdayan, J.
Papers considered by NYSCEF Doc No.: 10-26.
This is a nonpayment proceeding commenced on May 24, 2023 against Carmen Aquino ("respondent"). Respondent is a recipient of an HRA HOME Tenant-Based Rental Assistance ("TBRA") program subsidy. The proceeding first appeared on the court's calendar for intake with the UAC provider of the day on September 19, 2023. Thereafter, on November 8, 2023, the Legal Aid Society ("LAS") appeared for respondent and the proceeding was adjourned for respondent to file an amended answer which respondent did. One week later, on December 14, 2023, respondent filed the instant motion to dismiss on the bases that petitioner has failed to plead the regulatory status of the premises, and that petitioner is seeking more than the tenant portion of the rent. (NYSCEF Doc No. 10, notice of motion [sequence 1].)
There are many types of TBRA programs, the Section 8 Housing Choice Voucher program is one of them. In New York, TBRA is a United States Department of Housing and Urban Development (HUD)-funded rental assistance program run by the NYC Human Resources Administration (HRA) under the oversight of the NYC Department of Housing Preservation and Development (HPD).... Under TBRA, households will generally pay 30% of adjusted income toward rent for an approved apartment and [TBRA] rental assistance covers the rest." See NYC HRA website, TBRA Fact Sheet, available at yc.gov/site/hra/help/home-tbra.page (last accessed). TBRA
The motion has been adjourned twice pursuant to a stipulated briefing schedule for petitioner's opposition and respondent's reply, if any. On the third adjourn date of the motion, petitioner sent a per diem attorney who was unfamiliar with the motion to check in with the clerk. No excuses were offered to account for petitioner's attorney of record's absence; or for his failure to oppose the instant motion. Finally, at 12:15 p.m., the covering attorney reappeared in the courtroom. Petitioner clearly has no vested interest in litigating this proceeding; as such, respondent's motion to dismiss is decided on default. (See Super Acupuncture & Herbology, P.C. v Glob. Liberty Ins. Co. of New York, 66 Misc.3d 143 [A]), 2020 NY Slip Op 50178 [U] [App Term, 2d Dept] [granting plaintiff's motion upon defendant's default in timely serving its cross motion and opposition papers "as per the stipulation."]) Relatedly, pursuant to RPAPL 745 (e), "[t]he court may dismiss any summary proceeding without prejudice... by reason of excessive adjournment requests by the petitioner."
That respondent is a recipient of a TBRA subsidy is apparent from the ledger attached to the 14-day rent demand notice which breaks down monthly payments in columns, to wit TBRA, HRA PA, and Tenant. Petitioner claims arrears in the amount of $21,390 due through April 2023. In clear violation of controlling law, the amount claimed includes TBRA payments which were not received from the program. (Dawkins v Ruff, 10 Misc.3d 88 [App Term, 2d & 11th Jud Dists 2005]; Prospect Place HDFC v Gaildon, 6 Misc.3d 135 [A], 2005 NY Slip Op 50232 [U] [App Term, 1st Dept 2005]; NYCEF Doc No. 1, petition and rent demand with ledger at 2-3.)
Moreover, there is no reason why the court, or respondent, should be tasked with deducing that the premises are subject to a rent subsidy which provides respondent with substantive rights. It is the court's opinion that this fact should have been specifically pleaded in the petition and failure to do so is a material omission of fact which requires a motion to amend the petition and an analysis of prejudice. Even if there is no prejudice, no cross motion to amend the petition is before the court. (17th Holding LLC v Rivera, 195 Misc.2d 531, 532 [App Term, 2d Dept 2002] [holding that regulatory status must be pleaded but in the absence of discernible prejudice deeming petition amended to state that the premises is subject to rent stabilization].)
As for respondent's counterclaims, the court hereby severs them without prejudice pursuant to CPLR 407. (See Great Park Corp. v Goldberger, 41 Misc.2d 988, 989 [Civ Ct, New York County 1964] ["It is essential... to vest the court with broad powers to control such joinder or interposition of claims and to order severances when the summary nature of the special proceeding would be jeopardized (internal quotations marks and citation omitted)."]; [ V & J Inc. v 2320 Route 112, LLC, 13 Misc.3d 30, 31[App Term, 9th and 10th Jud Dists 2006] ["It is well settled that in a special proceeding, the trial court may at any time order a severance of counterclaims[.]"])
This constitutes the decision and order of this court.