Opinion
Index No. 322954/2022
04-25-2023
SK M Faizur Rahman, Petitioner-Landlord, v. Katrina Lewis, Respondent-Tenant, and JOHN DOE, JANE DOE, Respondents-Undertenants.
Attorneys for Petitioner: Gregory Bougopoulos, Esq., Novick Edelstein Pomerantz, PC Attorneys for Respondent: Catherine Cintron, Esq., Mobilization for Justice, Inc.
Unpublished Opinion
Attorneys for Petitioner: Gregory Bougopoulos, Esq., Novick Edelstein Pomerantz, PC
Attorneys for Respondent: Catherine Cintron, Esq., Mobilization for Justice, Inc.
Diane E. Lutwak, J.
Recitation, as required by CPLR Rule 2219(A), of the papers considered in the review of Respondent's motion to dismiss or, in the alternative, to file answer:
Papers/NYSCEF DOC #
Notice of Motion 9
Attorney's Affirmation in Support 10
Respondent's Affidavit in Support 11
Memorandum of Law in Support 12
Answer 13
Exhibits A-B in Support 14-15
Attorney's Affirmation in Opposition 17
Exhibits A-B in Opposition 18
Attorney's Affirmation in Reply 20
Exhibit AA in Reply 21
PROCEDURAL HISTORY AND BACKGROUND
This is a holdover eviction proceeding brought against a month-to-month tenant with a federal Section 8 housing subsidy administered by the New York City Housing Authority (NYCHA). The predicate 90-day notice, authorized by RPL §§ 232-a and 226-c,(2)(d) and dated January 20, 2021, terminated the tenancy as of April 30, 2021. The petition was filed on August 9, 2022, proof of service of the notice of petition and petition were filed on August 24, 2022 and the case was calendared for an initial appearance on September 6, 2022.
Now before the court is respondent's pre-answer motion by counsel seeking dismissal for failure to state a cause of action under CPLR R 3211(a)(7) based on two grounds. First, respondent claims that the petition is based on a "stale" termination notice, as more than fifteen months elapsed between the date respondent's tenancy was terminated and the date this proceeding was commenced, and respondent has been prejudiced by the delay. Second, respondent claims that petitioner failed to serve the termination notice properly on NYCHA, both because service failed to comply with the Second Partial Consent Judgment in Williams v NYCHA (81 CIV 1801 [SDNY Feb. 2, 1995, R.J.W.]) (" Williams Consent Judgment") as it was served by "regular and certified mail" instead of by personal service or overnight mail, and because the mailings by petitioner were sent to the wrong address for NYCHA (the 9th floor at 90 Church Street in Manhattan, rather than the 11th floor at that address). In the alternative, respondent seeks leave to file an answer.
In opposition, petitioner argues that (1) the predicate notice was not stale because when this proceeding was commenced a prior holdover proceeding between the parties based on the same notice, L&T # 306171/21, was still pending and the parties, represented by the same counsel, discontinued that prior proceeding without prejudice by stipulation so-ordered on September 22, 2022; (2) the Williams Consent Judgment does not require a particular method of service upon NYCHA of the predicate notice, and service by certified mail and regular mail addressed to NYCHA on the 9th floor of 90 Church Street, rather than the 11th floor at that same address, is sufficient; and (3) respondent should not be permitted to file an untimely answer as petitioner would be substantially prejudiced by such a late filing.
On reply, respondent argues that Culhane v Patterson (54 Misc.3d 10, 43 N.Y.S.3d 663 [App Term 2nd Jud Dep't 2016]), and other cases cited by petitioner on the "stale notice" claim, are inapposite, as this is not a holdover based upon a "Golub" notice of non-renewal of a Rent Stabilized lease, as those cases are; further, respondent points out that the amount of time that transpired here between service of the termination notice and commencement of this proceeding is significantly longer than what it was in those cases.
DISCUSSION
Viability of the Predicate 90-Day Termination Notice
New York State courts evaluate the sufficiency of predicate notices based on a standard of reasonableness "in view of all attendant circumstances". Oxford Towers Co, LLC v Leites (41 A.D.3d 144, 837 N.Y.S.2d 131 [1st Dep't 2007]); Avon Bard Co v Aquarian Found (260 A.D.2d 207, 210, 688 N.Y.S.2d 514, 517 [1st Dep't], app dism'd, 93 N.Y.2d 998, 717 N.E.2d 1080, 695 N.Y.S.2d 743 [1999]); Hughes v Lenox Hill Hospital (226 A.D.2d 4, 17, 651 N.Y.S.2d 418, 427 [1st Dep't 1996], app dism'd, 90 N.Y.2d 829, 683 N.E.2d 17, 660 N.Y.S.2d 552 [1997]). The notice must provide sufficient information to meet the tests of reasonableness and due process. Jewish Theological Seminary of America v Fitzer (258 A.D.2d 337, 338, 685 N.Y.S.2d 215 [1st Dep't 1999]). Predicate notices are not amendable; an eviction proceeding based upon an insufficient notice must be dismissed for failure to state a claim under CPLR R 3211(a)(7). Chinatown Apts Inc v Chu Cho Lam (51 N.Y.2d 786, 412 N.E.2d 1312, 433 N.Y.S.2d 86 [1980]).
A termination notice used as the predicate for a holdover eviction proceeding may be deemed stale and ineffective as to a subsequent proceeding where the first proceeding was dismissed, abandoned or discontinued. See, e.g., Kaycee West 113th Street Corp v Diakoff (160 A.D.2d 573, 554 N.Y.S.2d 216 [1st Dep't 1990])(reversing lower court and dismissing declaratory judgment action against rent controlled tenant that relied on the same 30-day termination notice that had been the basis for a prior holdover proceeding that was dismissed); AREP 19 Fifty-Fith LLC v McLaughlin (28 Misc.3d 135 [A], 957 N.Y.S.2d 634 [App Term 1st Dep't 2010])(prior proceeding deemed abandoned as it had been "marked off" calendar 17 months prior to the commencement of the current proceeding and never restored).
A predicate notice will not be deemed "stale" where the earlier proceeding had not been terminated at the time of commencement of the current proceeding and where there is no discernible prejudice to the tenant. 145 East 16th Street LLC v Spencer (36 Misc.3d 128 [A], 954 N.Y.S.2d 760 [App Term 1st Dep't 2012]); 890 Park LLC v Rosenfeld (34 Misc.3d 130 [A], 946 N.Y.S.2d 66 [App Term 1st Dep't 2011]); 213 E 26 LLC v Channing (41 Misc.3d 1211[A], 980 N.Y.S.2d 279 [Civ Ct NY Co 2013]).
As explained in Culhane v Patterson, supra, the legal doctrine of laches underlies the "stale notice" doctrine: "A finding that a predicate notice has been rendered stale is warranted where a landlord fails to act with reasonable diligence and the tenant is prejudiced thereby." In Culhane, the court found that a predicate notice was not "stale" where petitioner commenced a new proceeding within two days of discontinuance of the first proceeding and respondent showed no prejudice. Culhane cites to Raffone v Schreiber (18 Misc.3d 925, 850 N.Y.S.2d 851 [Civ Ct NY Co 2008]), a case in which there had been no prior proceeding based on the same predicate notice but instead a 16-month delay had transpired that was "the direct result of the petitioner's own inaction". Raffone reviews the history of the "stale notice" doctrine, dating back to the Honorable Irving Younger's decision in Haberman v Wager (73 Misc.2d 732, 342 N.Y.S.2d 405 [Civ Ct NY Co 1973]), a holdover against a month-to-month tenant based on a termination notice authorized by RPL § 232-a, which held that, "If a landlord does not proceed with reasonable diligence, the notice will at some point - whatever the period be - lose its force, and the tenant revert to his prior status The landlord's inaction, in short, will be deemed a waiver of the 30-day notice."
Here, petitioner commenced two holdover proceedings based on the same 90-day termination notice authorized by RPL § 232-a and the first one was still pending when this second one was commenced. The prior case was neither abandoned nor dismissed but rather discontinued by a two-attorney stipulation without prejudice after the first appearance in this proceeding. There has been no "inaction" by petitioner, who did not delay in commencing the second proceeding; in fact, the two proceedings based on the same termination notice overlapped with each other. The length of time that has elapsed since the predicate notice was served is irrelevant here where the first proceeding was still actively being litigated on the day this second proceeding was first conferenced. Petitioner's actions have not conferred any actionable repose upon respondent, Small v Fang (50 Misc.3d 1201 [A], 28 N.Y.S.3d 650 [Civ Ct NY Co 2015]), and dismissal is unwarranted.
Respondent's conclusory claim of prejudice is unavailing; the discontinuance of the prior proceeding, following the initial court appearance in the current proceeding, did not present "conflicting signals to Respondent as to Petitioner's intentions to recover the subject apartment." Briskin v Williams (43 Misc.3d 1219 [A], 993 N.Y.S.2d 643 [Civ Ct NY Co 2014]). This is especially true here where the attorney representing respondent in this proceeding represented her in the prior proceeding, moved to dismiss that proceeding based on defective service of the notice of petition and petition and signed off on the stipulation discontinuing the prior proceeding without prejudice.
In her supporting affidavit, after stating that petitioner "did not reserve the right to re-use that termination notice when the old case was discontinued" and "should not be allowed to recycle an old termination notice", respondent asserts prejudice simply by asking a question: "How am I supposed to be at peace in my own home if that was allowed?" Resp's Affidavit at ¶ 18.
That this is a proceeding against an unregulated tenant based on a 90-day termination notice under Sections 232-a and 226-c(2) of the New York State Real Property Law - rather than one against a Rent Stabilized tenant based on a "Golub" notice - does not warrant a different analysis or outcome and the cases respondent cites are not to the contrary. As noted above, the seminal decision underlying the "stale notice" doctrine, Haberman v Wager, supra, was a holdover based not on nonprimary residence but rather, like this one, based on termination of a month-to-month tenancy under RPL § 232-a. True, New Prospect NY LLC v Garcia (2022 NYLJ LEXIS 2721, 4 [Civ Ct Bx Co 2022]), and Islam v Rodriguez (2022 NY Slip Op 34472[U][Civ Ct Bx Co 2022]) were both decisions which resulted in dismissal of holdovers against month-to-month tenants based on 90-day termination notices found to be "stale". However, in Prospect NY LLC v Garcia the prior case had been dismissed upon default of the petitioner, which then commenced a new proceeding rather than moving to vacate its default in the first proceeding. In Islam v Rodriguez the prior case had been dismissed for lack of personal jurisdiction before the new case was commenced and the court found, on these facts, that respondent was "entitled to a degree of finality when the prior holdover proceeding was dismissed."
Adequacy of Service of the Predicate Notice on NYCHA
Where a tenant's rent is subsidized by the federal Section 8 Housing Choice Voucher Program, federal regulations require an owner who is terminating a tenancy to "give the PHA [public housing authority] a copy of any owner eviction notice to the tenant," 24 CFR § 982.310(e)(2)(ii), with "owner eviction notice" defined as "a notice to vacate, or a complaint or other initial pleading used under State or local law to commence an eviction action," 24 CFR § 982.310(e)(2)(i). Where the PHA is NYCHA, under the Williams Consent Judgment, supra, in a section entitled "Notice and Certification Procedures", landlords must comply with specific steps prior to and upon commencing eviction proceedings. Where, as here the Williams Consent Judgment "Certification Procedures" do not apply, "the landlord shall: (1) mail or deliver to [NYCHA] a copy of such notice as any applicable provision of law may require it to serve upon the tenant as a prerequisite to commencement of an eviction proceeding and (2) upon commencement of the proceeding, serve a copy of the Notice of Petition and Petition on [NYCHA] Authority or send a copy of said documents to [NYCHA] by overnight mail." Williams Consent Judgment at ¶ 6(b).
Here, service of the notice of petition and petition are not at issue: it is undisputed that they were personally delivered to NYCHA. What respondent challenges is service of the predicate notice, which was sent to NYCHA by "regular and certified mail". While strict compliance with the Williams Consent Decree is required and dismissal granted where the requisite service and other procedures are not followed, see, e.g., 433 West Assocs v Murdock (276 A.D.2d 360, 360, 715 N.Y.S.2d 6, 7-8 [1st Dep't 2000]), in fact, petitioner has complied with the applicable provision that requires it to "mail or deliver" a copy of the predicate notice to NYCHA. That the mailings of the predicate notice were addressed to NYCHA's offices in Manhattan on the 9th floor at 90 Church Street, rather than the 11th floor at that same address, is a de minimus deviation from the instructions on NYCHA's website for service of legal papers and does not warrant dismissal of this proceeding.
Timeliness of Respondent's Answer
Respondent further seeks an order permitting late filing of an answer to the petition. Under RPAPL § 743 the answer in a holdover proceeding is to be asserted or filed "at the time when the petition is to be heard." Courts routinely interpret this statute to mean that the time to file an answer is extended by adjournment of the proceeding. Picken v Staley (2011 NY Misc. LEXIS 5910, 2011 NY Slip Op 33237[U][Civ Ct NY Co May 16, 2011]). Accordingly, respondent's answer is deemed timely filed. However, in light of the court's dismissal of respondent's claims of a "stale" predicate notice and defective service of that notice on NYCHA as set forth above, as well as the rule under CPLR R 3211(e) that a personal jurisdiction defense is deemed waived if not raised in a pre-answer motion to dismiss, stricken from respondent's answer are the claims made in her First Objection in Point of Law (lack of personal jurisdiction), Second Objection in Point of Law ("stale" predicate notice) and First Affirmative Defense (defective service of the predicate notice on NYCHA).
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that respondent's motion is denied except to the extent of deeming respondent's proposed answer duly served and filed, except as to the First and Second Objections in Point of Law and First Affirmative Defense which are deemed stricken. The proceeding is restored to the calendar for a pre-trial conference in Resolution Part K-SPP on June 14, 2023 at 10 a.m. This constitutes the Decision and Order of this Court, which is being uploaded on NYSCEF.