Opinion
SP 2018/08.
Decided July 31, 2008.
Damien Bernache, Esq., Of Counsel to Jeffrey Seigel, Esq., Nassau/Suffolk Law Services Committee, Inc., Attorney for Respondent, 1 Helen Keller Way, Hempstead, New York.
Ezratty, Ezratty Levine, LLP, Attorney for Petitioner, Mineola, New York.
BACKGROUND
Petitioner, Rockville Centre Housing Authority (RCHA) has brought this holdover proceeding against Era Boggen to evict her because she allegedly violated her lease upon the following grounds, set forth in RCHA's Executive Director John G. Duenges' notice of termination, dated February 7, 2008:
TAKE NOTICE that Rockville Centre Housing Authority, Landlord of the above-described Premises hereby elects to terminate your tenancy of the above-referenced premises, held by you under a written lease for good cause, to wit:
1.Occupancy by non-household member(s), including, upon information and belief, Andrew Goodman;
2.Failure to report a change in household composition (the addition of Andrew Goodman) within 10 days;
3.Impermissible assignment or subletting to Andrew Goodman;
4.Accommodation of a boarder or lodger.
Respondent, Era Boggen has moved to dismiss the petition on the grounds that this Court lacks subject matter jurisdiction. Specifically, Respondent contends that this Court can't determine this case until Respondent has exhausted her appeals process. Respondent was served with a letter dated February 4, 2008, from Executive Director John G. Duenges informing Respondent:
When I spoke to you last week, you requested that a white, male, friend be allowed to stay in your apartment for two weeks and I told you that your guest, per your lease may stay with you for four consecutive days and then must vacate your apartment. I have witnessed your guest setting on your porch last week through today and at times walking the grounds which is beyond four days and therefore you are in violation of your lease. Please have your guest vacate your apartment immediately or your lease will be terminated and you will be evicted. Thank you for your cooperation in this matter.
On February 11, 2008, Petitioner issued another notice of termination of lease stating:
You are hereby given notice that your lease for Apartment D at 5 Old Mill Court, Rockville Centre, New York is terminated on March 31, 2008.
Should you wish to file an appeal on this decision, a copy of the Rockville Centre Housing Authority grievance procedure is enclosed. Your request for an appeal must be made in writing to the Rockville Centre Housing Authority within 14 days of the mailing date on this letter.
A special meeting of the Rockville Centre Housing Authority was held on April 3, 2008, at the management office located at 160 N. Centre Avenue, Rockville Centre, New York. In attendance at the meeting were Vice Chairman — Hearing Officer Robert J. Pagnotta, Secretary — Board of Review Member Alfreda Brewster, Commissioner — Board of Review Member William Devlin, Counsel for RVCHA Dan Blumenthal, Esq., Executive Director John G. Duenges, Tenant Era Boggen, Tenant's mother Marjorie Holmes, Counsel for Era Boggen Damien Bernash, Esq.
Some relevant facts brought out at the April 3, 2008 meeting, included:
1.The unauthorized occupant Mr. Goodman stayed for only two weeks and vacated by February 5, 2008, one day after the first notice of February 4, 2008. The foregoing was confirmed by Mr. Duenges, Executive Director of Petitioner.
2.Mr. Goodman and the Respondent wrongfully obtained funds from the Department of Social Services payable to both of them based upon Mr. Goodman's representations that he was living at Respondent's apartment. Respondent kept half of the proceeds from the check.
3.Respondent claims that she was not aware of the four consecutive day clause in the lease, which prohibits guests or visitors from staying at Respondent's apartment for more than four consecutive days. Section VIII(a) entitled Terms and Conditions of the Apartment Lease agreement between Petitioner and Respondent, dated April 1, 2000, states:
Use and Occupancy of Dwelling: Tenant shall have the right to exclusive use and occupancy of the dwelling unit only for the Tenant and other household members listed in Section I(b) of the Lease. This provision permits reasonable accommodation of Tenant's guest or visitors for a period not exceeding four consecutive days or thirteen days in any calendar year.
4.At the end of the hearing, Petitioner's attorney, Mr. Blumenthal, explained the next procedures that would be taken after the hearing:
"Mr. Blumenthal explained the next steps with the proceeding being a board decision and then the preparation of a lease stipulation being filed with the district court to reflect the terms of the lease stipulation."
Petitioner cross moved for an order denying Respondent's motion to dismiss and granting summary judgment in favor of Petitioner.
Petitioner contends that Respondent requested Andrew Goodman be allowed to stay in her apartment for about two weeks; this request was made on or about January 29, 2008. Petitioner rejected this request by its letter dated February 4, 2008, described above.
Petitioner states in Mr. Blumenthal's affirmation of May 28, 2008, that:
Upon investigation, it was determined that Mr. Goodman was not a guest, but rather a sub-tenant with rents paid by the Department of Social Services ("DSS"), a direct violation of the Lease and, upon information and belief, a fraud on the State by Ms. Boggen.
After service of the termination notices, Respondent requested and received an informal grievance hearing. Petitioner states that Respondent was granted a full and fair opportunity with counsel to rebut the information which led to the termination.
Petitioner points out that Respondent admitted at the April 3, 2008 informal hearing that she "accepted and cashed a Department of Social Services check payable jointly to the alleged sub-tenant and Ms. Boggen." Therefore, Petitioner argues that no grievance hearing is required under HUD rules, because Respondent engaged in criminal activity by defrauding the Department of Social Services and depriving the Petitioner from having the opportunity to conduct a background check with respect to Mr. Goodman.
NOTICE PROVISIONS OF LEASE
The lease agreement dated April 1, 2000, has several key provisions concerning termination of the lease. Paragraph IX entitled Authority Obligations states:
The Authority shall be obligated:
(h)To notify Tenant of the specific grounds for any proposed adverse action by the Authority for which may include, but is not limited to, a proposed lease termination, transfer of Tenant to another unit, or imposition of charges for maintenance and repair or for excess consumption of utilities. When the Authority is required to afford the Tenant the opportunity for a hearing under the Authority's appeal procedure concerning an adverse action:
(1)The notice of the proposed adverse action shall inform Tenant of the right to request such hearing. In the case of lease termination, a notice of lease termination that is provided to the Tenant at least 15 days in advance shall constitute adequate notice of proposed adverse action.
(2)In the case of a proposed adverse action other than a proposed lease termination, the Authority shall not take the proposed action until the time to request such a hearing has expired and, if a hearing was timely requested, the appeal process has been completed.
Paragraph XIV entitled Termination of the Lease states:
In terminating the Lease, the following procedures shall be followed by the Authority and Tenant:
(c)Notice of Termination:
(1)The notice of termination to Tenant shall state specific reasons for the termination, shall inform Tenant of Tenant's right to make such reply to such notice in writing, within 30 days of receipt of such notice as Tenant may wish.
(2)When the Authority is required to offer Tenant the opportunity for an appeal hearing, the notice shall also inform Tenant of the right to request such a hearing.
(3)Any notice to vacate (or quit) which is required by State of local law may be combined with, or run concurrently, with the notice of lease termination under this section. The Notice to Vacate must be in writing, and specify that if Tenant fails to quit the premises within the applicable period, appropriate court action may be brought against Tenant.
(4)When the Authority is required to offer Tenant the opportunity for an appeal hearing concerning lease termination, the tenancy shall not terminate until the period to request a hearing has expired, or (if a hearing is requested) the appeal process has been completed.
DECISION
Based upon the above, this Court dismisses the petition for the reasons that follow.
The letter of February 4, 2008, informed tenant to have her guest vacate immediately or her lease would be terminated. Both parties agree that Mr. Goodman vacated the very next day on February 5, 2008. This action complied with the directive of Petitioner and removed the basis for the eviction of Respondent if she didn't comply.
The alleged criminal activity of Respondent cannot serve as a basis for eviction of Respondent, because Petitioner didn't comply with the notice provisions of the said lease which requires that the specific basis be set forth in a notice to Respondent. This Court cannot allow Respondent to be evicted when Petitioner has failed to comply with the lease provisions concerning notice. This Court does not condone Respondent's conduct set forth in the transcript of the hearing dated April 3, 2008, and this conduct could well be a basis for removal in the right circumstances. However, when no proper termination notice has been given as required by the lease, Petitioner cannot proceed to evict Respondent.
In One East 8th St. Corp. v. Third Brevoort Corp., 38 AD2d 524, 326 NYS2d 829 (1st Dep't 1971), the court refused to allow the respondent to be evicted where the violation was removed prior to the issuance of the notice of termination. The court also refused to allow the Petitioner to substitute another violation for grounds of eviction. The First Dep't held:
The notice of termination of the lease dated August 5, 1971 refers to violation 4220/70 (double doors). This violation was removed of record on May 20, 1971. It had been removed prior to the issuance of the notice of termination. Further, defendant was bound by the notice served and cannot substitute another violation. In any event, even this violation (Z7-71) was removed of record on August 4, 1971.
2 Dolan, Rasch's Landlord and Tenant — Summary Proceedings, § 23:38, at 201-2 [4th ed]:
When parties expressly stipulate what contingency will result in a cancellation of a lease, the occurrence of that stipulated contingency, and no other, is necessary to justify the cancellation thereof. Thus, the assertion of one ground of forfeiture to terminate a tenancy precludes the right to rely on another ground which existed at the same time, in an action or proceeding involving a forfeiture. Where the violation referred to in the notice of termination had been removed prior to the issuance of the notice of termination, the notice was ineffective to terminate the lease; the landlord is bound by the notice served, and cannot substitute another violation.
Based upon the above, Respondent complied with the February 4, 2008 notice and remedied the situation before issuance of the termination of lease notice of February 11, 2008, and thus cannot be evicted on this ground.
Petitioner cannot substitute the alleged criminal action of Respondent and Mr. Goodman as the basis for eviction where the notice provisions of the lease were not complied with.
CONCLUSION
Petitioner's petition is dismissed for failure to comply with the lease notice provisions. Respondent corrected the violation set forth in the February 4, 2008 letter by having Mr. Goodman vacate on February 5, 2008 before the notice of termination dated February 11, 2008 was issued. Petitioner cannot substitute another ground for eviction (criminal activity) and proceed to evict Respondent when no notice of same has been provided as required by the lease.
So Ordered: