Opinion
22994/18
01-08-2019
PRI VILLA AVENUE L.P., Petitioner (Landlord), v. Josue SANTIAGO, Respondent (Tenant).
Attorneys for Petitioner: Jeanne-Marie Williams, Esq., Kellner Herlihy Getty & Friedman, LLP, 470 Park Avenue South, 7th floor North, New York, New York 10016, (212) 889-2121 Attorneys for Respondent, Jonathan D. Hernandez, Esq., The Legal Aid Society, Civil Practice — Bronx Neighborhood Office, 260 East 161st Street, 8th floor, Bronx, New York 10451, (929) 288-4639
Attorneys for Petitioner: Jeanne-Marie Williams, Esq., Kellner Herlihy Getty & Friedman, LLP, 470 Park Avenue South, 7th floor North, New York, New York 10016, (212) 889-2121
Attorneys for Respondent, Jonathan D. Hernandez, Esq., The Legal Aid Society, Civil Practice — Bronx Neighborhood Office, 260 East 161st Street, 8th floor, Bronx, New York 10451, (929) 288-4639
Diane E. Lutwak, J.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Motion for an Order Compelling Petitioner to Accept Respondent's Answer, Granting Leave to Interpose an Amended Answer and Granting Dismissal and/or Summary Judgment and Petitioner's Cross-Motion for Leave to Amend Petition:
Papers Numbered
Respondent's Notice of Motion, Attorney's Affirmation, Affidavit & Exhs A-L 1
Petitioner's Notice of Cross-Motion, Attorney's Affirmation, Affidavit & Exhs A-F2
Respondent's Affirmation in Reply & in Opposition to Cross-Motion & Exhs A-C3
Upon the foregoing papers and for the following reasons, respondent's motion for an order compelling petitioner to accept his answer, granting leave to interpose an amended answer and granting summary judgment and dismissal and petitioner's cross-motion for an order granting leave to amend the petition, are consolidated for disposition and decided as follows.
BACKGROUND AND PROCEDURAL HISTORY
This is a holdover eviction proceeding based on a predicate seven-day Notice of Termination dated April 16, 2018 which alleges that respondent's tenancy was being terminated because of objectionable conduct and/or nuisance in violation of his lease, Rent Stabilization Code §§ 2524.3(a) and (b), penal law and the "good cause" provision of the "Shelter Plus Care Subsidy Program". The Notice of Termination itemizes six incidents and/or types of behavior as the underlying facts constituting objectionable conduct and/or nuisance including a "physical attack on a building staff member" on April 11, 2018, repeated "threatening behavior toward a neighboring tenant" including an incident of banging on her door with a hammer on March 25, 2018, a verbal altercation with another neighbor's family member on January 24, 2018 and, more generally, repeated "aggressive or menacing" acts towards other tenants and building personnel and "a history of threatening and objectionable conduct in the building". The petition, dated April 26, 2018 and returnable May 14, 2018, states that the premises are subject to Rent Stabilization and are duly registered as such with the New York State Division of Housing and Community Renewal. The petition further states that respondent receives assistance under the "Shelter Plus Care Program" administered by the New York City Department of Housing Preservation and Development ("HPD") and that the premises are "subject to Regulatory Agreements, including a Regulatory Agreement with the city of New York through [HPD]".
Respondent failed to appear in court by the time of the default calendar on May 14 and the Court adjourned the proceeding to May 30 for inquest. Notations on the court file jacket indicate that respondent appeared later in the day, the court gave him an adjournment slip and the court notified petitioner's attorney of respondent's appearance.
On May 30, upon respondent's default, the court started to conduct an inquest shortly after 11:00 a.m. The court took testimony from Raquel Garcia, who identified herself as petitioner's Program Director and described the building as one that provided supportive housing for persons with mental health and substance abuse problems. After the Court accepted certified copies of certain building- and tenancy-related documents into evidence, respondent appeared at approximately 11:15 a.m. with a letter dated that same day from The Legal Aid Society requesting an adjournment to provide respondent time to secure legal counsel. The Court granted the request for an adjournment and postponed the case to June 15 at 9:30 a.m. for all purposes. On June 15, petitioner defaulted and the Court dismissed the proceeding without prejudice. By motion returnable July 19, petitioner sought to vacate its default, which motion was settled by the parties, both sides now appearing by counsel, in an agreement restoring the proceeding to the court's calendar for trial on September 12. On that date, the parties by counsel again adjourned the proceeding for trial to October 29 in an agreement under which respondent consented to the jurisdiction of the court.
Respondent then moved to dismiss, arguing that the predicate notice was defective for failure to include sufficiently detailed factual allegations or, in the alternative, for discovery and for leave to interpose an answer to the petition. By Decision & Order dated November 15, 2018, the Court denied that prong of respondent's motion seeking dismissal, ruling that the Notice of Termination met the "reasonableness" test of Hughes v. Lenox Hill Hospital (226 AD2d 4, 17, 651 NYS2d 418, 427 [1st Dep't 1996] ) and Jewish Theological Seminary of America v. Fitzer (258 AD2d 337, 338, 685 NYS2d 215 [1st Dep't 1999] ). The parties, through counsel, settled the remainder of respondent's motion by stipulation under which petitioner would provide certain documents and answer respondent's Demand for a Bill of Particulars by November 21 and respondent would serve his answer by November 28 "(no traverse)". The agreement further adjourned the proceeding to December 21 for trial and noted that respondent could move for appropriate relief before that date. Respondent filed his answer with the court on December 3 with proof that it was served on petitioner's attorney by email and first-class mail on November 28.
Respondent, by motion returnable December 21, 2018, now seeks an order compelling petitioner to accept his original answer, permitting him to serve and file an amended answer and granting summary judgment and dismissal pursuant to CPLR RR 3211(a)(1) and 3212 on his proposed First, Second, Third and Fourth Affirmative Defenses due to failure to correctly and sufficiently plead the regulatory status of the premises and compliance with all requirements of the applicable laws, regulations and regulatory agreements. In addition to the Shelter Plus Care Program which petitioner refers to in the petition and termination notice, respondent asserts that his tenancy is subject to two other contracts between petitioner and HPD dated June 28, 2013, copies of which are attached to the moving papers:
(1) a "HOME Written Agreement" for financing an "affordable housing" project under Title II of the Cranston-Gonzalez National Affordable Housing Act of 1990 and implementing regulations (24 CFR 92) through the federal "HOME Investments Partnerships Program" administered by the United States Department of Housing and Urban Development. The "HOME" agreement defines the project as 34 units at the premises at 100 East 204th Street in the Bronx , requires that the 34 units be occupied by "low-income families" as defined in the agreement, prohibits termination of a tenancy "except for serious or repeated violation of the terms and conditions of the lease; for violation of applicable federal, state, or local law; or for other good cause" and requires a predicate written notice of not less than 30 days "specifying the grounds for the action." These tenancy termination requirements are in addition to those "of state and local law governing residential tenancies and leases."
This property, designated as Block 3310, Lot 29, is also known as 3114 Villa Avenue. See HPD/hpdonline.hpdnyc.org/HPDonline/select_application.aspx
(2) a "Regulatory Agreement" for financing of the project under Article XI of the New York State Private Housing Finance Law § 576-c. This "Regulatory Agreement" requires 56 of the units to be occupied by "Homeless Tenants" of "low income" as defined in the agreement, subjects all units to Rent Stabilization, provides that legal rents would be established by HPD and reflects the expectation that all tenants will receive some type of federal, state or city rental assistance and, in any event, will not be required to pay more than 30% of their incomes for rent. The agreement states that petitioner "has received an allocation of low income housing tax credits under Section 42 of the Internal Revenue Code" and that it must "comply with the use, occupancy and rental restrictions" contained in the annexed "Schedule B" and applicable regulations. "Schedule B" is entitled "Additional Restrictions" and is comprised of two sections:
I. "Low Income Housing Tax Credit (LIHTC) Requirements" which apply to 56 of the units in the project and include a provision that "No tenant of a Tax Credit Unit may be evicted or any such tenancy terminated without good cause."
II. "HOME Compliance", referencing the "HOME Written Agreement" and its applicability to 34 of the units in the project.
In his affidavit in support of the motion, respondent asserts that he has lived in his apartment for three years and suffers from a number of mental and physical health issues including major depressive disorder, panic disorder, anxiety, bipolar disorder, insomnia, intense fear and anxiety of crowds, agoraphobia, an unspecified psychotic disorder, history of substance abuse, chronic lower back pain, sciatica, herniated disc and Hepatitis C. He asserts that he was never given lease riders regarding a "Shelter Plus Care Subsidy" or a "HOME Written Agreement", never received a 30-day termination notice or a "good cause" notice and never was interviewed by petitioner about any investigation into the allegations against him.
Respondent's attorney argues that dismissal is warranted for the following reasons:
Under the federal "Shelter Plus Care Program", failure to comply with 24 CFR § 582.320 ("Termination of assistance to participants") which requires petitioner to provide respondent with a formal pre-termination process including written notice of the reasons for the termination, an opportunity to present written or oral objections before a person other than the one who made or approved the termination decision and written notice of the final decision.
Under the federal "HOME Investments Partnerships Program" and petitioner's regulatory agreement with HPD, failure to provide the requisite 30-day notice prior to terminating respondent's tenancy.
Under the LIHTC program and the regulatory agreement between petitioner and HPD, failure to assert the requisite "good cause" for termination of the tenancy.
Under RPAPL § 741(4), failure to properly plead the rent regulatory status of the premises.
Regarding the answer and proposed amended answer, respondent's attorney argues that petitioner should be compelled to accept the timely served original answer as per the stipulation of November 15, 2018 and that leave to serve and file the proposed amended answer should also be granted as it was prepared promptly after reviewing discovery documents and regulatory agreements.
Petitioner opposes, and by cross-motion seeks an order allowing it to amend its petition nunc pro tunc to remove all references to "Shelter Plus Care" as respondent's rental unit # 503 is not covered by that program. Petitioner's agent asserts in her affidavit that petitioner has a "Project Based Rental Assistance Payments Contract" with HPD that provides Shelter Plus Care rental assistance to 25 out of the 56 units in the building. She provides a redacted copy of the list that was submitted to HPD which shows that respondent's unit # 503 receives no rental assistance. Petitioner asserts that the proposed amendment to correct the error in its petition does not prejudice respondent who does not claim detrimental reliance on the incorrect statement in the pleading.
As for the federal "HOME" program, petitioner acknowledges receipt of such assistance but asserts that it covers only 34 of the building's units and that respondent's is not one of those either. In her affidavit, petitioner's agent references an attached list of the "HOME" program units which does not include respondent's unit # 503.
As for the "LIHTC" program, petitioner acknowledges receipt of such assistance but argues that the regulations "defer to governing local eviction laws, or, in this case, the Rent Stabilization Law and the RPAPL." Petitioner argues that additional details regarding the LIHTC agreement and its "good cause" requirement for termination need not be plead because they do not add anything to the higher due process and substantive rights respondent is entitled to under Rent Stabilization.
Petitioner's agent Suzanne Kaiser explains in her supporting affidavit that the premises are "supportive housing that provides certain case management and limited medical and benefit services onsite with the help of local New York City funding" and that respondent's apartment is one of seven units in the building that is not covered by any rental subsidy. Petitioner argues that it is not required to plead that the premises are supportive housing or that respondent suffers from mental illness, information that arguably "is of a confidential or private nature that should not be disclosed in court papers available to the public." Petitioner asserts that the contracts it has with the City to accept Department of Homeless Services (DHS) referrals and to provide social services are distinguishable from contracts applicable to facilities licensed by the Office of Mental Health (OMH) as they do not provide independent tenancy rights. Further, the adequacy of the social services it provides "is an issue for the city agency funding the social services to determine in its expertise."
Petitioner argues that it has fully satisfied RPAPL § 741 by pleading that the premises are subject to Rent Stabilization and "a regulatory agreement" with the City.
Regarding respondent's answer, petitioner objects to it because it differs from the one that was attached to its prior motion and which petitioner had consented to. Regarding respondent's proposed amended answer, petitioner objects that it is prejudicial as it is untimely, it includes pleading challenges under RPAPL § 741 even though respondent's prior motion on this basis was denied and it "asserts numerous irrelevant and time-consuming defenses".
On reply, regarding the answer and the proposed amended answer respondent argues that petitioner has conflated the two answers, and there should be no question as to petitioner's obligation to accept the original one, as agreed to in the parties' stipulation of November 15, 2018 which required first for petitioner to provide discovery materials by November 21 and then for respondent to serve his answer (traverse waived) by November 28. As for the proposed amended answer, respondent explains that "further meritorious defenses" were discovered upon closer examination of the discovery materials and regulatory agreements subsequent to the short period between when the discovery materials were received (at 6 p.m. on November 21, the day before Thanksgiving) and when the original answer was due (by November 28, two days after respondent's counsel returned from the Thanksgiving holiday).
Regarding petitioner's cross-motion to amend the petition, respondent argues that the request is untimely and that the pleading defects "are not mere technicalities; they could have caused prejudice to the Respondent and to this Court."
Respondent argues that petitioner failed to conclusively prove its assertions that respondent's tenancy is not subsidized by either the Shelter Plus Care Program or the "HOME" agreement and to comply with the procedures required before a landlord can terminate assistance to participants in those programs. Respondent objects to documents which reference the address "100 East 204th Street" for the premises, as opposed to 3114 Villa Avenue.
Respondent further argues that dismissal is warranted because of the lack of any reference in the petition to the LIHTC and to the fact that the premises are used for supportive housing and that he suffers from physical and mental health problems as well as a history of substance abuse.
DISCUSSION
Motion and Cross-Motion to Amend Pleadings
It is well-settled that, pursuant to CPLR R 3025(b), leave to amend pleadings is to be freely given, absent significant prejudice to the opposing party. Edenwald Contracting Co. v. New York (60 NY2d 957, 459 NE2d 164, 471 NYS2d 55 [1983] ); McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp. (59 NY2d 755, 450 NE2d 240, 463 NYS2d 434 [1983] ). This standard of liberal amendment of pleadings applies to summary proceedings under CPLR Article 4, including summary holdover eviction proceedings under RPAPL Article 7. See, e.g., 289 & 305 Assocs, LP v. Loman (50 Misc 3d 141[A], 31 NYS3d 924 [App Term 1st Dep't 2016] ); Coalition Houses LP v. Bonano (12 Misc 3d 146[A], 2006 NY Misc LEXIS 2099 [App Term 1st Dep't 2006] ); 703 W 180th Realty v. Coronel (2017 NYLJ LEXIS 3419 [Civ Ct. NY Co. 2017] ); 75 Post Realty LLC v. Chavez (2017 NYLJ LEXIS 1711 [Civ Ct. NY Co. 2017] ); Min Tjia v. Schwartz (2011 NY Misc LEXIS 2080, 2011 NY Slip Op. 31148[U][Civ Ct. NY Co. 2011] ); 601 W Realty, LLC v. Chapa (19 Misc 3d 1133[A], 866 NYS2d 95 [Civ Ct. NY Co. 2008] ).
In the absence of prejudice, it is an abuse of discretion for a trial court to deny a party leave to amend a pleading during or even after trial, Pensee Assocs v. Quon Shih-Shong (199 AD2d 73, 605 NYS2d 35 [1st Dep't 1993] ), unless the proposed pleading is palpably insufficient or clearly devoid of merit, Delta Dallas Alpha Corp. v. South St. Seaport LP (127 AD3d 419, 420, 4 NYS3d 510 [1st Dep't 2015] ). To conserve judicial resources, examination of the underlying merit of the proposed amendment is mandated, Zaid Theatre Corp. v. Sona Realty Co. (18 AD3d 352, 355, 797 NYS2d 434, 436 [1st Dep't 2005] ), and the court's purpose is not to resolve disputed factual issues, but simply to ensure that the amended allegations establish a prima facie cause of action, Digital Broadcast Corp. v. Ladenburg, Thalmann & Co., Inc. (19 Misc 3d 1130[A], 866 NYS2d 91 [Sup Ct. NY Co. 2008] ).
Here, it is appropriate to allow petitioner to amend its petition to eliminate the erroneous reference to the Shelter Plus Care program, which it asserts applies to certain other units in the building but not to respondent's. There is a fundamental difference between a landlord's erroneous pleading of an inapplicable law, regulation and/or regulatory agreement and a landlord's failure to plead the existence of applicable laws, regulations and/or regulatory agreements which provide procedural and/or substantive rights to the tenant. The former constitutes harmless error as the inclusion of such surplus information does not affect the outcome of the proceeding. See, e.g., Hudsonview Co. v. Jenkins (169 Misc 2d 389, 394, 645 NYS2d 741, 745 [Civ Ct. NY Co. 1991] ) ("if no notice is required, its service would be surplusage, not subject to vitiation by a subsequent act by the owner"). See also Darrow Assoc. Corp. v. Schneider (50 AD2d 543, 373 NYS2d 1 [1st Dep't 1975] ); Gamliali v. Tower of David (94 Misc 2d 763, 405 NYS2d 570 [Civ Ct. Kings Co. 1978] ); Mid Point Apartments, Inc. v. Poughkeepsie (59 Misc 2d 845, 300 NYS2d 971 [Sup Ct. Dutch Co. 1969] ). Similarly, while petitioner's predicate notice cannot be amended, Chinatown Apts Inc. v. Chu Cho Lam (51 NY2d 786, 412 NE2d 1312, 433 NYS2d 86 [1980] ), the fact that the predicate notice here contains an inapplicable and erroneous reference to the "Shelter Plus Care" program does not render the notice fatally defective as the surplusage does not affect respondent's rights and therefore does not undermine the reasonableness of the notice "in view of all attendant circumstances". Oxford Towers Co., LLC v. Leites (41 AD3d 144, 837 NYS2d 131 [1st Dep't 2007] ); Hughes v. Lenox Hill Hospital (226 AD2d 4, 17, 651 NYS2d 418, 427 [1st Dep't 1996], appeal dismissed , 90 NY2d 829, 660 NYS2d 552 [1997] ).
No doubt, the analysis and outcome would be different if the petition and/or the predicate notice failed to mention that the premises were subject to a statutory, regulatory or contractual status that provided additional rights to the tenant. Mauro v. Choi (11 Misc 3d 1070[A], 816 NYS2d 697 [Civ Ct. NY Co. 2006] ) ("A court must dismiss a petition alleging that an apartment is not rent regulated when it is rent regulated") (citing MSG Pomp Corp. v. Doe (185 AD2d 798, 586 NYS2d 965 [1st Dep't 1992, mem] ). See, also, e.g., PCMH Crotona, LP v. Taylor (57 Misc 3d 1212[A], 71 NYS3d 924 [Civ Ct. Bx Co. 2017] ) (dismissing nuisance holdover petition that failed to allege the existence of a contract between petitioner and the City's Office of Mental Hygiene to provide supportive housing and the applicable regulations and guidelines, as well as compliance therewith, which would have alerted the court to the tenant's mental disability and his need for a guardian ad litem ); E 129th St. Cluster, LP v. Blizzard (2017 NYLJ LEXIS 2461 [Civ Ct. NY Co. 2017] ) (dismissing licensee holdover proceeding and denying landlord's motion to amend petition to include an allegation that the premises were subject to the LIHTC program where "petitioner failed to adequately plead the regulatory status of the building and then attempts to use that very omission to defeat respondent's succession defense"); Westchester Gardens, LP v. Lanclos (43 Misc 3d 681, 982 NYS2d 302 [Civ Ct. Bx Co. 2014] ) (dismissing nuisance holdover petition that failed to allege that the premises were subject to the Shelter Plus Care program and that petitioner had complied with federal regulations requiring landlord to follow certain procedures before terminating a tenant's participation in that program).
Respondent has not articulated any prejudice due to the timing of petitioner's request to amend its petition — seven months after the proceeding was commenced — and his objection to the motion on this basis is misplaced. Generally, it is the landlord who is prejudiced by delays in the progress of a summary eviction proceeding due to motion practice and, nevertheless, such delays may be required. The analysis of the court in New York University v. Farkas (121 Misc 2d 643, 644, 468 NYS2d 808, 810 [Civ Ct. NY Co. 1983] ), the leading decision setting the standard for granting a motion for discovery in summary eviction proceedings, is instructive. As the court explained, "The invention of the summary proceeding was designed to provide the landlord with a simple, expeditious and inexpensive means of regaining possession of his premises in cases where the tenant refused upon demand to pay rent, or where he wrongfully held over without permission after the expiration of the term." Nevertheless, the court noted, especially in holdover proceedings, "the issues are often complex and intensely disputed," id. (121 Misc 2d at 646, 468 NYS2d at 811 ), warranting motion practice, including for discovery. The court went on to point out that, where it is the petitioner who moves for discovery, "any claims of prejudice to the landlord's desire for a prompt determination of the issues and recovery of the rent are absent. Instead, the landlord has made a choice that the clarification of the facts outweigh the risks of delay." Id. (121 Misc 2d at 646-647; 468 NYS2d at 811 ). See also Carroll v. Nostra Realty Corp. (2005 NY Misc LEXIS 3307, 233 NYLJ 65 [Sup Ct. NY Co. 2005] ) (granting landlord's motion to consolidate a nonpayment proceeding pending in Civil Court with the personal injury action in Supreme Court and noting that "the landlord has willingly accepted the prejudice of the delay").
In the same way that "disclosure may assist the speedy disposition of a case when it has served the purpose of clarifying the issues for trial", New York University v. Farkas (121 Misc 2d at 645, 468 NYS2d at 810 ), to allow a petitioner to amend its pleading where no prejudice has been shown serves the interests of judicial economy, 601 W Realty, LLC v. Chapa (19 Misc 3d 1133[A], 866 NYS2d 95 [Civ Ct. NY Co. 2008] ), and furthers the State's preference for determining cases on their merits, 205 Assoc. LLC v. Roman (56 Misc 3d 547, 50 NYS3d 815 [Civ Ct. Bx Co. 2017] ). Cf. Fromartz v. Bodner (266 AD2d 122, 698 NYS2d 142 [1st Dep't 1999] ).
That respondent has mental and physical health problems and a history of substance abuse is not a reason to deny petitioner's motion to amend the pleading, nor is it a reason to grant respondent's motion to dismiss or for summary judgment due to defective pleading. Were the Court to rule as respondent requests, any such ruling would not be on the merits and would be without prejudice to the filing of a new petition against respondent.
Respondent's motion to serve and file an amended answer and to have the proposed amended answer which is attached to its motion papers deemed duly served and filed is moot. Given that the Court is permitting petitioner to amend its petition, respondent is entitled to an opportunity under CPLR R 3025(d) to serve and file an amended answer to that amended petition, bearing in mind the Court's rulings in this and the prior Decision and Order.
Motion to Dismiss & /or for Summary Judgment
Respondent's motion to dismiss or for summary judgment under RPAPL § 741 due to failure to allege the regulatory status of the premises and petitioner's compliance with applicable regulatory requirements must be examined in light of the court's ruling above, permitting petitioner to amend the petition to delete references to the Shelter Plus Care Program.
Respondent has not shown in its reply papers any reason for the Court to doubt the veracity of petitioner's representation that only 25 of the units in the building are subject to the Shelter Plus Care Program and that respondent's unit # 503 is not one of them. Accordingly, respondent has not established that it is entitled to dismissal of the petition due to petitioner's failure to comply with the pre-termination procedures set forth in the federal regulations applicable to that program. At this juncture, petitioner need not show "convincingly and conclusively", as argued by respondent, that respondent's unit is not subject to the Shelter Plus Care Program. Petitioner has not moved for summary judgment, it has moved to amend its petition to correct what it claims is an error. Should it turn out that, in fact, respondent's unit is subject to the Shelter Plus Care Program, dismissal of this proceeding may be warranted.
Similarly, dismissal is not warranted at this juncture due to there being no reference to the "HOME" agreement in the petition. Petitioner has explained that only 34 of the units in the building are subject to that agreement and has provided a copy of the list of the units which are covered by the "HOME" program. Respondent's unit # 503 is not on that list. Accordingly, as with the Shelter Plus Care Program, there is no need for petitioner to mention the "HOME" agreement in its petition or to allege compliance with that program's requirements. Respondent has not shown in its reply papers that the "HOME" program does apply to his unit and, accordingly, has not established that it is entitled to dismissal of the petition due to failure to mention the "HOME" program or compliance with that program's pre-termination procedures.
Petitioner acknowledges that there is another regulatory agreement that does apply to respondent's tenancy, namely the one with the City that subjects all units in the building to the LIHTC program. Petitioner references this agreement in paragraph 9 of the petition which states that the premises are subject "to Regulatory Agreements, including a Regulatory Agreement with the city of New York through the New York City Department of Housing Preservation and Development". It certainly would have been more thorough for petitioner to mention that this "Regulatory Agreement" subjects respondent's tenancy to the LIHTC program. However, on the facts of this proceeding, which does not involve any aspect of the LIHTC program's requirements (such as the tenants' responsibility to certify their incomes annually), this omission does not cause any prejudice to respondent. The LIHTC requirement in Schedule B of the Regulatory Agreement that there be "good cause" for eviction is more than provided for by the fact that Rent Stabilization coverage is mandated in the body of the Regulatory Agreement. The elaborate protections of the Rent Stabilization Law and Code include a prohibition on evictions other than for cause and the LIHTC requirement of "good cause" for eviction is superfluous in this context. See generally 512 E 11th St. HDFC v. Grimmet (181 AD2d 488, 581 NYS2d 24 [1st Dep't 1992] ); 206 W 121st St. HDFC v. Jones (53 Misc 3d 149[A], 48 NYS3d 268 [App Term 1st Dep't 2016] ); Hudsonview Terrace, Inc. v. Maury (100 Misc 2d 331, 419 NYS2d 409 [App Term 1st Dep't 1979] ).
Respondent cites to Volunteers of America-Greater New York, Inc. v. Almonte (65 AD3d 1155, 886 NYS2d 46 [2nd Dep't 2009] ), which held that the lower court erred in granting a post-trial judgment of possession in favor of the petitioner-landlord for, inter alia , failure to allege the existence of a contract between the landlord and the City which provided the respondent-tenant with certain potential defenses.
In Almonte , the court explained: "The City of New York owns the building in which the subject premises are located. The Department of Homeless Services (hereinafter DHS) operates the building as a Single Room Occupancy (hereinafter SRO) facility, providing SRO units to 174 homeless adults. The DHS has designated 53 of the units for persons with a history of mental illness. The tenant of the subject premises (hereinafter the tenant), who has been classified as ‘persistently mentally ill,’ has resided at the subject premises for over 10 years." Further, the contract between DHS and the petitioner in Almonte "designates, among other things, the amount of rent each tenant will pay, when the petitioner is to collect the rent, and how the petitioner is to spend the collected rents." The court concluded:
We agree with the Appellate Term that, pursuant to RPAPL 741, in the petition the petitioner was required to allege the existence of the contract between the DHS and the petitioner, because without that allegation, the Civil Court and the tenant would be unaware that the City owned the building in which the subject premises were located, that the DHS operated that building as a SRO facility, and that the DHS contracted with the petitioner to handle the building's daily operations. The contract provided the tenant with certain potential defenses, and the Civil Court could not have properly adjudicated this proceeding without that contract.
Volunteers of America-Greater NY, Inc. v. Almonte (65 AD3d at 1157, 886 NYS2d at 48 [1st Dep't 2009] ).
Here, respondent has not pointed to any aspect of the LIHTC regulatory agreement which affects his substantive rights or why the absence of a more descriptive reference than what is found in the petition is prejudicial to him and warrants dismissal of the proceeding. By comparison, the post-Almonte decisions that find a petition's failure to mention a regulatory agreement or housing subsidy program to be a fatal omission all involve respondents who "may have defenses arising from the relevant contract." PCMH Crotona, LP v. Taylor (57 Misc 3d 1212[A], 2017 NY Misc LEXIS 3994 [Civ Ct. Bx Co. 2017] ).
For example, in Park Props Assoc., LP v. Williams (38 Misc 3d 35, 959 NYS2d 798 [App Term 1st Dep't 2012] ), a holdover proceeding based on an alleged clutter condition, the Appellate Term, First Department reversed the lower court and granted a tenant's motion to vacate a stipulation of settlement and judgment where the petition alleged the premises were "decontrolled" and failed to mention that the apartment is in a building which receives a project-based federal Section 8 housing subsidy. In doing so, the court explained: "While a defect of this nature may be overlooked where no prejudice results to the tenant (see 17th Holding v. Rivera , 195 Misc 2d 531, 758 NYS2d 758 [App Term, 2d Dept, 2d & 11th Jud Dists 2002]; see also Coalition Houses LP v. Bonano , 12 Misc 3d 146[A], 2006 NY Slip Op. 51616[U] [App Term, 1st Dept 2006] ), here, it cannot be said that landlord's failure to make the required allegation was not prejudicial to tenant, as the stipulation may have been the product of tenant's counsel's lack of knowledge of the fact that tenant stood to lose a Section 8 subsidy."
In PCMH Crotona, LP v. Taylor, supra, a nuisance holdover proceeding, and in Services for the Underserved v. Fuller (L & T # 19409/2017 [Civ Ct. Bx Co. July 31, 2018] ), which respondent attaches a copy of to his reply papers and in which the court followed the reasoning of PCMH Crotona, LP, the courts were concerned with the fact that the premises respondents resided in were unregulated other than being subject to contracts between the petitioners and OMH (New York State Office of Mental Health) which were not referenced in the petitions, and the fact that the respondents needed guardians ad litem . Finding that the petition was fatally defective under RPAPL §§ 741(1) and (4), in PCMH Crotona, LP the court explained: "While a defect of this nature may be overlooked where no prejudice results to the tenant it cannot be said here that Petitioner's failure to make the required allegation was not prejudicial to Respondent, as Petitioner knew that Respondent had a mental disability at the time that Respondent entered into a stipulation unrepresented and further failed to inform the court about Respondent's mental disability. Had the Petition alleged the existence of the contract between OMH and the Petitioner, the court would have been aware of the tenant's mental disability and his need for a GAL. Furthermore, Respondent may have defenses arising from the relevant contract." Similarly, in Services for the Underserved v. Fuller , while the court did not address the question of whether the regulatory agreement created any conditions precedent to filing suit because only two of the thirty-nine pages of that agreement were attached to the motion papers, the court dismissed the petition finding that it should have referenced the regulatory agreement and put the court on notice of the respondent's infirmity "so that measures could be immediately taken to appoint a guardian ad litem so that any disadvantage posed by the disability could be mitigated."
In Westchester Gardens, LP v. Lanclos (43 Misc 3d 681, 982 NYS2d 302 [Civ Ct. Bx Co. 2014] ), also a nuisance holdover proceeding, the court granted the respondent-tenant's motion to dismiss where the petition, although it asserted that the premises were subject to the New York City Rent Stabilization Law and Code, failed also to specify that the tenancy is subject "to the rules and regulations of the Shelter Plus Care Program, a rental subsidy governed by the CFR [Code of Federal Regulations] and authorized by title IV of the McKinney-Vento Homeless Assistance Act as well as two additional regulatory agreements with New York City, and subject to the low income housing credit regulations". As discussed above, the Shelter Plus Care Program does require the landlord to follow certain pre-termination procedures, and the court found that the landlord's failure to mention the applicable federal, state and local regulatory schemes was fatal to the proceeding because "[t]he CFR and city contracts provided tenant with certain potential defenses, and Civil Court could not have properly adjudicated this proceeding without that contract," citing Almonte, supra (internal quotation marks omitted).
Here, the petition mentions both the Rent Stabilized status of the premises and the fact that they are subject to a Regulatory Agreement with the City. While they do not mention any details of that agreement, or that respondent resides in a building that exclusively provides supportive housing to formerly homeless persons, on the facts of this proceeding this omission is not fatal. Accordingly, this Court finds that the petition — as amended to eliminate references to the Shelter Plus Care Program - adequately states the regulatory status of the premises and the facts upon which this proceeding is based. The motion to dismiss or for summary judgment is denied.
Motion to Compel Acceptance of Original Answer
Respondent's request for an order compelling petitioner to accept his original Answer is essentially made moot by the Court's decision and order above granting petitioner leave to serve and file an Amended Petition, to which respondent is being given an opportunity to serve and file an Amended Answer. Nevertheless, the Court finds that, as petitioner did agree in the stipulation of November 15, 2018 to accept respondent's Answer by November 28, it should have done so. Accordingly, that Answer, which was filed with the Court with proof of service, is hereby deemed duly served and filed.
CONCLUSION
For the reasons set forth above, respondent's motion to dismiss and/or for summary judgment is denied, petitioner's cross-motion to amend the petition is granted, the proposed amended petition shall be deemed duly served and filed unless petitioner serves and files a revised amended petition by January 18, respondent's original answer is deemed duly served and filed, respondent is directed to serve and file his amended answer to the amended petition by February 1 and the parties and their counsel shall appear in court ready for settlement or trial on February 20, 2019 at 9:30 a.m. This constitutes the Decision and Order of this Court, copies of which will be provided to the parties' respective counsel in the courthouse.