Opinion
Index No. L&T 50616/20
08-18-2023
Calvary Grandparent Residence LLC, Petitioner, v. Bernal Middleton, John Doe, Jane Doe, Respondents.
Matthew Rosen, Esq. Louis Marinos, Esq. Horing Welikson Rosen & Digrugilliers, P.C. Williston Part, NY 11596 Attorneys for petitioner Akeem Amodu, Esq. The Legal Aid Society Attorneys for respondent
Unpublished Opinion
Matthew Rosen, Esq. Louis Marinos, Esq. Horing Welikson Rosen & Digrugilliers, P.C. Williston Part, NY 11596 Attorneys for petitioner
Akeem Amodu, Esq. The Legal Aid Society Attorneys for respondent
Clinton J. Guthrie, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's motion to vacate the ERAP stay and respondent's cross-motion to dismiss, or, in the alternative, to interpose an answer:
Papers Numbered
Notice of Motion & Affirmation/Affidavit/Exhibits Annexed 1 (NYSCEF 6-11)
Notice of Cross Motion & Affirmation/Affidavit/Exhibits Annexed.. 2 (NYSCEF 12-17)
Affirmation in Opposition & Exhibits Annexed.. 3 (NYSCEF 20-24)
Reply Affirmation & Exhibits Annexed 4 (NYSCEF 25-27)
Upon the foregoing cited papers, the decision and order on petitioner's motion and respondent's cross-motion (consolidated for determination herein) is as follows.
PROCEDURAL HISTORY
This licensee holdover proceeding was commenced in January 2020. After the first court date, the onset of the COVID-19 public health emergency caused a suspension of the proceeding (see Administrative Order 68/20). After the resumption of the proceeding, the court (Thermos J.) granted respondent's attorney's motion to appoint a guardian ad litem (GAL) for respondent. Brenda Brown was appointed as GAL for respondent. The same order granting the motion to appoint a GAL, dated October 2, 2020, also granted the motion to the extent of permitting respondent to interpose an answer, provided that it was served and a verified version was filed with the clerk on or before October 13, 2023. There is no record in the court file or NYSCEF that the answer was filed thereafter.
The court file includes a notation on October 26, 2020 suggesting that the answer was amended to raise an issue with service of the notice to quit, but this was not reduced to an order.
Following a stay occasioned by the filing of a COVID-19 hardship declaration, respondent made an ERAP (Emergency Rental Assistance Program) application in October 2021. This led to a further stay of the proceeding. Petitioner then made a motion to vacate the ERAP stay. Respondent opposed the motion and cross-moved to dismiss, or in the alternative, to interpose an answer. Following adjournments for briefing, the court heard argument on both motions on August 17, 2023 and reserved decision.
PETITIONER'S MOTION
Petitioner seeks to vacate the stay putatively imposed by the filing of respondent's ERAP application (see L 2021, ch 56, §1, Part BB, §1, Subpart A, Sec 1, § 8, as amended by L 2021, ch 417, Part A, Sec. 4). Petitioner primarily seeks vacatur upon the allegation that respondent is not a tenant or occupant obligated to pay rent, such that the stay would apply under the relevant statute. The motion is supported by an affidavit of Sharon Johnson, the agent and manager of the subject building. Ms. Johnson states in her affidavit that respondent never had a lease agreement, nor is she under any obligation to pay rent. Respondent opposes the motion, arguing that there is no mechanism to vacate an ERAP stay contained in the statute and upon an allegation that respondent has a colorable succession claim.
Under the relevant statute, a pending eviction proceeding is stayed against a "household" who has applied for ERAP benefits, pending a determination of eligibility (see generally Ami v. Ronen, 2023 NY Slip Op 23182 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). As defined in the statute, a "household" is "a tenant or occupant obligated to pay rent in their primary residence in the state of New York[.] (L 2021, ch 56, §1, Part BB, §1, Subpart A, Sec 1, § 5(a)(i)). The Appellate Term, First Department has held that "[t]he ERAP statute contains no language affording a stay to one who is neither a tenant nor an occupant obligated to pay rent." (Bank of NY Trust Co., N.A. v. Courtney, 78 Misc.3d 27, 30 [App Term, 1st Dept 2023]). A similar conclusion was reached in 2986 Briggs LLC v. Evans, 74 Misc.3d 1224 [A], 2022 NY Slip Op 50215[U] [Civ Ct, Bronx County 2022], which involved a licensee proceeding (as here) and which was cited in petitioner's motion.
Respondent does not claim that there is any current rental obligation with petitioner. Indeed, respondent represents that there is a right to the subject premises as a successor. The Appellate Term, Second Department has routinely held that a successor cannot be held liable for rent until such time as succession is determined and a rental agreement is executed (see Rochdale Vil., Inc. v. Chadwick, 73 Misc.3d 131 [A], 2021 NY Slip Op 50958[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Putnam Realty Associates, LLC v. Piggot, 44 Misc.3d 141 [A], 2014 NY Slip Op 51306[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Strand Hill Assoc. v. Gassenbauer, 41 Misc.3d 53, 54-55 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [citing 245 Realty Assoc. v. Sussis, 243 A.D.2d 29, 35 [2d Dept 1998]]).
Upon the motion record, the court finds that the ERAP stay should be vacated because petitioner has established that respondent is not "obligated to pay rent" for the subject premises, which respondent has not refuted. To the extent that respondent argues that petitioner has sought use and occupancy herein, the court does not find that this creates an obligation to pay "rent" as defined in the ERAP statute. "Rent" therein is defined as it is in RPAPL § 702 (see Evans, 2022 NY Slip Op 50215[U], *5; Isidoro v. Team Props. LLC, 2021 NY Slip Op 32626[U] [Sup Ct, NY County 2021]). Under RPAPL § 702(1), "'rent' shall mean the monthly or weekly amount charged in consideration of the use and occupation of a dwelling pursuant to a written or oral rental agreement" (emphasis added). Here, there is no assertion by either party that respondent had or has a written or oral rental agreement for the subject premises. It is well established that use and occupancy is a distinguishable obligation (see Chadwick, 2021 NY Slip Op 50958[U], *2; 615 Nostrand Ave. Corp. v. Roach, 15 Misc.3d 1, 4 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Accordingly, respondent is not a "household" entitled to a stay under the ERAP statute (see Courtney, 78 Misc.3d at 29-30; Evans, 2022 NY Slip Op 50215[U], *5) and petitioner's motion is granted accordingly. The ERAP stay is vacated and the proceeding is restored.
While respondent currently has a provisional ERAP approval, the court does not find that basis alone to be sufficient for the stay to continue here. Unlike in First Hous. Co., Inc. v. Tchiremu, 78 Misc.3d 1219 [A], 2023 NY Slip Op 50263[U] [Civ Ct, Queens County 2023], where this court held that a provisional approval was not a "determination" for ERAP purposes such that it would end the stay, the respondent herein does not have any rental obligation that would make him a "household" eligible for the stay. In Tchiremu, the respondent was a Mitchell-Lama cooperative shareholder with a rental obligation (2022 NY Slip Op 50263[U], *3-4).
RESPONDENT'S CROSS-MOTION
Respondent first seeks dismissal of the proceeding pursuant to CPLR § 3211(a)(8) on the basis of improper service of the notice of petition and petition under RPAPL § 735. The motion is accompanied by an affidavit from respondent, denying substitute service at the date and time described in the affidavit of service for the notice of petition and petition. However, by previously moving to interpose an answer and proffering a general denial in August 2020, respondent has waived any subsequent challenge to personal jurisdiction (see CPLR § 3211(e); HSBC Bank USA, N.A. v. Whitelock, 214 A.D.3d 855, 856 [2d Dept 2023]). While respondent did not actually file the verified answer as required by Judge Thermos' October 2, 2020 order, the appearance made by respondent's attorney, the motion seeking to interpose an answer, and attempt to assert a general denial without challenging the method of service of the court papers were sufficient, when taken together, to constitute a waiver of any personal jurisdiction defense (see Taveras v. City of New York, 108 A.D.3d 614, 617 [2d Dept 2013] [When a party "participates in a lawsuit on the merits, he or she indicates an intention to submit to the court's jurisdiction over the action[.]"]). Accordingly, there is no basis to dismiss for lack of personal jurisdiction here.
Next, respondent seeks dismissal on the basis that the petition and predicate notice to quit are defective insofar as they misstate petitioner's interest in the subject premises and its relationship with respondent. Respondent argues that the petition's description of petitioner as "landlord" in the petition and notice to quit is incorrect and was confusing to respondent. Petitioner opposes dismissal on this basis, primarily arguing that "owner" and "landlord" are indistinguishable and that the use of "landlord" was not a misstatement (citing, inter alia, NYC Admin. Code § 26-4039(f) and Redhead v. Henry, 160 Misc.2d 546 [Civ Ct, Kings County 1994]).
RPAPL § 741(1) requires that a petition "[s]tate the interest of the petitioner in the premises from which removal is sought." Additionally, RPAPL § 741(2) requires that the petition "[s]state the respondent's interest in the premises and his relationship to petitioner with regard thereto." Fundamental misstatements of the interests of the parties or their relationship may subject a petition to dismissal (see Jeffco Mgt. Corp. v. Local Dev. Corp. of Crown Heights, 22 Misc.3d 141 [A], 2009 NY Slip Op 50455[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). While the court does not agree that "owner" and landlord" are synonymous, as asserted by petitioner, in the context of the complete allegations in the notice to quit and petition, the court does not find that the reference to petitioner as "landlord" renders them defective. The petition alleges:
"Respondent is the occupant of the premises, who entered into possession under NO Lease. The former tenant of record, Arundel Williams may have granted [respondent] a license to occupy the subject premises at a time when he was entitled to possession thereof. However, Arundel Williams passed away on August 19, 2019. Therefore, the continuance in occupancy of the premises by [respondent], or any other individuals, is without permission of the landlord or anyone entitled to possession or any license that may have been given has been revoked." (Petition, ¶ 2).
As pled, the petition clearly states the relationship of the parties and although the use of "landlord" is inartful, it cannot be held that the usage is a fundamental misstatement. The petition pleads (1) the lack of any lease between the parties, (2) the death of the former tenant of record, (3) respondent's license through the former tenant of record, and (4) the revocation of the license.
Similarly, the notice to quit, which refers to petitioner as "owner and landlord," asserts that respondent's license is revoked and specifically states:
"The tenant of record, Arundel Williams, passed away on or about August 19, 2019. The tenant file maintained by the undersigned Landlord indicates that Arundel Williams was the sole occupant of the subject premises Upon information and belief, you do not have the right to succeed to the tenancy of Arundel Williams, and therefore, upon his death, your license to occupy the subject premises has expired." (Notice to Quit to Licensee dated November 13, 2019).
Upon consideration of the complete allegations in the notice, the court finds that the notice is "[reasonable] in view of the attendant circumstances." Hughes v. Lenox Hill Hosp., 226 A.D.2d 4, 18 [1st Dept 1996], lv denied 90 N.Y.2d 829 [1997]; see also Oxford Towers Co., LLC v. Leites, 41 A.D.3d 144, 144-145 [1st Dept 2007]; Schwesinger v. Perlis, 75 Misc.3d 135 [A], 2022 NY Slip Op 50550[U] [App Term, 1st Dept 2022]. The facts alleged were sufficient to put respondent on notice of petitioner's cause of action and permitted respondent to prepare a defense (see Domen Holding Co. v. Aranovich, 1 N.Y.3d 117, 125 [2003]). Accordingly, the court denies respondent's motion to dismiss in its entirety.
The court will grant respondent's cross-motion to the sole extent of permitting respondent to interpose a late answer with respondent's succession defense, which was articulated sufficiently in the affidavit annexed to respondent's cross-motion (see 645 Bklyn Realty, LLC v. Beecher-Sakil, 70 Misc.3d 138 [A], 2021 NY Slip Op 50085[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). While respondent's attorneys failed to file an answer within the timeframe granted in Judge Thermos' October 2, 2020 order, the court finds that a sufficient basis exists under CPLR §§ 404(a) and 3012(d) to permit the filing of the answer at this juncture, particularly in light of the public policy favoring the resolution of cases on the merits (see NYU-Hospital for Joint Diseases v. Praetorian Ins. Co., 98 A.D.3d 1101, 1102 [2d Dept 2012]). The answer shall be subject to the court's determinations herein. The answer shall be filed to NYSCEF no later than September 5, 2023. No further extensions will be granted.
CONCLUSION
Petitioner's motion and respondent's cross-motion are disposed according to the foregoing determinations. The proceeding will be restored for trial on November 28, 2023 at 2:30 PM in Part O, Room 202. Any subpoenas must be served no later than October 30, 2023 and any pre-marked exhibits may be emailed to qn-housing-202@nycourts.gov by November 24, 2023. This Decision/Order will be filed to NYSCEF.