Opinion
066378/17
08-15-2018
FITZPATRICK HOUSING DEVELOPMENT FUND CORPORATION, Petitioner, v. Cynthia GONZALEZ, Respondent.
Petitioner was represented by: BOOM! Health Legal Services, Bridget Mullaly, Esq. Respondent was represented by: Jason D. Boroff & Associates, PLLC, Madalina Danescu, Esq.
Petitioner was represented by: BOOM! Health Legal Services, Bridget Mullaly, Esq.
Respondent was represented by: Jason D. Boroff & Associates, PLLC, Madalina Danescu, Esq.
Steven Weissman, J.
The Court has before it three separate motions, No.'s 1 and 2 by respondent, for, inter alia , leave to serve and file an amended answer or for dismissal of the proceeding because the named petitioner is not the property owner nor a party entitled to possession of the subject apartment. Motion # 3 is a cross-motion by petitioner to nunc pro tunc amend the caption of the petition and notice of petition to reflect the proper party-petitioner as "Housing Works Lyman Prospect Housing Development Fund Corporation".Though noted above is a sur-reply submitted by respondent, which petitioner rejected in writing, the Court has not taken that sur-reply into account as no permission for submission of sur-reply papers was given and petitioner was well within its' right to reject them.
For the reasons set forth below the Court grants respondent's first motion and dismisses the within proceeding as named petitioner lacks the capacity to sue respondent for unpaid rent/possession of the subject apartment. All other issues raised in the three motions are rendered moot by this determination.
First, and as petitioner argues, albeit only for itself, leave to amend pleadings should be freely granted as long as there is no prejudice or surprise to the other party. See MSG Pomp Corp. v. Doe , 185 A.D.2d 798, 586 N.Y.S.2d 965 (AD 1st Dept. 1992), Jackson v. New York City Housing Authority , 88 Misc. 2d 121, 387 N.Y.S.2d 38 (AT 1st Dept. 1976), Paikoff v. Harris , 185 Misc. 2d 372, 713 N.Y.S.2d 109 (AT 2nd Dept. 1999) citing Villas of Forest Hills Co. v. Lumberger , 128 A.D.2d 701, 513 N.Y.S.2d 116 (AD 2nd Dept. 1987) ; Birchwood Tower s # 2 Assocs. v. Schwartz , 98 A.D.2d 699, 469 N.Y.S.2d 94 (AD 2nd Dept. 1983) ; Lin v. Rivas , NYLJ, May 26, 1998, 30/5 (AT 2nd & 11th Jud Dists). The court in Villas of Forest Hills Company v. Lumberger , supra, cited Birchwood Towers # 2 Assocs. v. Schwartz , supra, in finding that the failure to allege that the apartment is subject to the New York City Rent and Rehabilitation Law, the Rent Stabilization Law or neither law will not deprive the court of jurisdiction as the petition may be amended, though pleading regulatory status and compliance with the appropriate statutes and codes was necessary to grant the requested relief (see, 251 E. 119th St. Tenants Assoc. v. Torres , 125 Misc. 2d 279, 479 N.Y.S.2d 466 ; Darnet Realty Corp. v. Markley , 63 Misc. 2d 29, 310 N.Y.S.2d 904 ; United Institutional Servicing Corp v. Santiago , 62 Misc. 2d 935, 310 N.Y.S.2d 733 ).
So, were this just a situation of amending the pleadings, here the petition and notice of petition, petitioner would be correct (the Court notes that petitioner vociferously opposed the same relief requested by respondent in wanting to amend her answer and would say to that what's good for the goose is also good for the gander), but here petitioner wants to amend its' rent demand, the predicate notice or condition precedent to the institution of a summary nonpayment proceeding in Housing Court. That is a bird of a different feather. Not one case cited by petitioner speaks to amending a predicate notice, in fact, many of the cases cited by petitioner don't even speak to summary proceedings in Housing Court. This Court can find no case that allows for the amendment of a predicate notice. Since, under RPAPL 711(2), a proper rent demand is a condition precedent to maintaining a nonpayment proceeding, the lack of a proper one must be fatal to maintaining such a proceeding.
The standard for assessing the adequacy of a notice is reasonableness in view of all attendant circumstances. Hughes v. Lenox Hill Hosp. , 226 A.D.2d 4, 17, 651 N.Y.S.2d 418 (AD 1st Dept. 1996). The purpose of the rent demand is not only to inform the tenant that an eviction proceeding will be commenced if payment is not made, but to allow the tenant an opportunity to make payment as required by the demand. Furthermore, if the demand is inaccurate , the tenant is not in a position to remedy the default and make payment. Shimon Realty, Inc. v. Stosko , NYLJ, 6/24/02, 24/6 (Civ. Ct., Kings Co., 2002). The demand must also clearly inform the tenant of the particular period for which a rent payment is allegedly in default and the approximate good-faith sum of rent allegedly due for each period so as to permit the tenant to adequately defend the action and prevent forfeiture of the leasehold. Sc h wartz v. Weiss-Newell , 87 Misc. 2d 558, 561, 386 N.Y.S.2d 191 (Civ. Ct. NY Co. 1976). Unsaid is that it must also accurately advise the respondent to whom that payment is due or to whom it should be made. Here, the rent demand is made by Fitzpatrick Housing Development Fund Corporation, an entity that both sides agree does not own the subject property and thus to whom payment of rent arrears should not be made.
The case law is very clear that a predicate notice cannot be amended. Chinatown Apartments, Inc. v. Chu Cho Lam , 51 N.Y.2d 786, 787, 433 N.Y.S.2d 86, 412 N.E.2d 1312 (1980), Oppenheim v. Spike , 107 Misc. 2d 55, 437 N.Y.S.2d 826 (AT 1st Dept., 1980), 300 West Realty v. Wood , 69 Misc. 2d 580, 330 N.Y.S.2d 524 (Civ. Ct., NY Co., 1971)aff'd 69 Misc. 2d 582, 330 N.Y.S.2d 527 (AT 1st Dept., 1972), William Manor Associates v. Gregory , NYLJ, 5/4/88, 13/2 (AT 2nd Dept.) "where a proceeding is brought by an improper party, the defect is not curable and the petition must be dismissed", citing Spike , supra, and Zisser v. Bronx Cigar Corp. , 91 Misc. 2d 1025, 399 N.Y.S.2d 109 (Civ. Ct. Bx Co., 1977). See also MSG Pomp , supra, East 209th Street Realty LLC v. Nettles , L & T Index No. 67175/15 (Civ. Bx Co., April 5, 2016, McClanahan, J.). The failure to properly name the owner as petitioner is not a technical defect, it is a violation of RPAPL §'s 721(1) and 741(1). See 265 Bedford Realty Corp. v. Hossein , L & T Index No. 010307/14 (Civ. Ct. Bx Co., October 10, 2014, Marin. J.).
Further, petitioner offers no excuse as to why an improper party petitioner was named. Both sides missed the fact that the deed was transferred from Fitzpatrick to another entity on November 5, 2012, not in 2014, when an amended deed was filed. It was then transferred by this intervening owner to the current owner, Housing Works Lyman Prospect Housing Development Fund Corporation, by deed dated January 29, 2014. So, when the within proceeding was instituted in the name of Fitzpatrick as petitioner, Fitzpatrick had not been the owner of the property for five (5) years. That is not a technical mistake, that is just plain sloppy work.
Accordingly, the respondent's first motion is granted, the proceeding is dismissed without prejudice to institution of a new proceeding upon proper papers.
This is the decision and order of the Court. Copies are being mailed to both sides.