Opinion
36764/2017
03-27-2018
SILVERLEAF LP, Petitioner–Landlord, v. Ronald GRIFFIN, Respondent–Tenant, "John Doe" and "John Doe", Respondents–Undertenants.
Attorneys for Petitioner: Sperber Denenberg & Kahan, P.C., 48 West 37th Street, 16th floor, New York, New York 10018, (917) 351–1335 Attorneys for Respondent: Norrey Lee Navarro, Esq., Bronx Legal Services, 349 E. 149th Street, 10th floor, Bronx, New York 10451, (718) 928–2888,
Attorneys for Petitioner: Sperber Denenberg & Kahan, P.C., 48 West 37th Street, 16th floor, New York, New York 10018, (917) 351–1335
Attorneys for Respondent: Norrey Lee Navarro, Esq., Bronx Legal Services, 349 E. 149th Street, 10th floor, Bronx, New York 10451, (718) 928–2888,
Diane E. Lutwak, J.
Recitation, as required by CPLR 2219(A), of the papers considered in the review of Respondent Ronald Griffin's Motion to Dismiss:
| Papers/ | Numbered |
|---|---|
| Notice of Motion with Supporting Affirmation, Affidavit & Exhibits A–D | 1 |
| Affirmation in Opposition | 2 |
| Reply Affirmation with Supporting Exhibits A–B | 3 |
Upon the foregoing papers, and for the reasons stated below, Respondent's motion is decided as follows.
PROCEDURAL HISTORY & FACTUAL BACKGROUND
This is a holdover proceeding based upon Respondent-tenant Ronald Griffin's alleged harboring of a dog in his Rent Stabilized apartment in violation of a lease provision prohibiting pets. Respondent moves to dismiss based on vitiation of the termination due to acceptance of rent during the window period. The procedural chronology, critical to the determination of Respondent's motion, is as follows:
• A Ten (10) Day Notice to Cure, dated March 16, 2017, was served by first class and certified mail on March 21 and demands that Respondent permanently remove the dog by April 6.
• A Ten (10) Day Notice of Termination, dated April 21, 2017, was served by first class and certified mail on April 27, alleges failure to cure the lease violation and terminates the tenancy as of May 13, 2017.
• The Petition is dated June 23, 2017, was filed with the court on June 28 and was made returnable on July 12; the Notice of Petition and process server's affidavit documenting substituted service on July 3 were filed with the court on July 6.
The Petition alleges that the term of Respondents' tenancy expired for the reasons set forth in the predicate notices, that Respondents continue in possession without Petitioner's permission and that "No monies for rent and/or ‘use and occupancy’ have been received and/or accepted since the expiration of Respondent's term."
Respondent Griffin appeared by counsel and served and filed an Answer on August 29, 2017 and an Amended Answer on September 27, 2017. The Amended Answer raises three defenses two affirmative defenses and four counterclaims. Respondent has now moved to dismiss based on his third defense: "Petitioner vitiated the Notice of Termination" by accepting rent payments during the period after the tenancy was terminated and before the commencement of this proceeding, often referred to as "the window period" . Respondent points to the May 13, 2017 effective date of the Notice of Termination and attaches to the moving papers as Exhibit C a computer printout from the New York City Human Resources Administration (HRA) showing payments made by that agency during the period of February 2017 through July 2017 including, relevant herein, a shelter allowance payment of $392.22 by check # 39519455 dated May 17, 2017 to cover the period of May 17 through June 1, with a "payment" date of May 26 and a "reconciliation" date of May 31. Respondent also attaches a copy of the front and back of the actual HRA check, showing that it was deposited by Petitioner. The printout reflects HRA's issuance of similar shelter allowance checks for $392.22 each on June 2, June 17, July 3 and July 18; the "payment" column reflects that none of these four checks was paid out and, as of their respective "reconciliation" dates, each had a "discrepancy" of $392.22. Respondent's attorney cites to 205 E 78th St Assocs v. Cassidy (192 AD2d 479, 598 NYS2d 699 [1st Dep't 1993] ), rev'g on dissent of McCooe, J (1991 NY Misc LEXIS 840, 206 NYLJ 63 [App Term 1st Dep't 1991] ), 184 West 10th Corp v. Westcott (8 Misc 3d 132[A], 2005 NY Misc LEXIS 1512, 2005 NY Slip Op 51150[U][App Term 1st Dep't 2005] ), Esplanade Gardens, Inc v. Simms (51 Misc 3d 1228[A], 41 NYS3d 718 [Civ Ct NY Co 2016] ), Roxborough Apts Corp v. Becker (176 Misc 2d 503, 673 NYS2d 814 [Civ Ct NY Co 1998] ), and Associated Realties v. Brown (146 Misc 2d 1069, 554 NYS2d 975 [Civ Ct NY Co 1990] ), and argues that HRA's shelter allowance check # 39519455 covers a time period after termination of the tenancy and before the commencement of this proceeding, and Petitioner's acceptance of this payment vitiates the notice of termination and warrants dismissal of the Petition.
While the Petition also names two "John Does" as respondents, no one other than Mr. Griffin has appeared in the proceeding; accordingly, references herein to "Respondent" refer to Ronald Griffin.
See, e.g., 433 West Assocs v. Murdock (276 AD2d 360, 361, 715 NYS2d 6, 8 [1st Dep't 2000] )(where landlord accepted a Section 8 rent subsidy for the apartment during "a period that fell between termination of the tenancy and commencement of the holdover proceeding", such acceptance of rent during the so-called "window period" was a defense, but not one that implicates subject matter jurisdiction).
In opposition, Petitioner submits the affirmation of its attorney, who argues that acceptance of one payment during the "window period" tendered not by Respondent but by HRA does not vitiate the termination notice. Petitioner cites to three Appellate Term decisions and quotes, inter alia , from 49 Terrace Corp v. Richardson (36 Misc 3d 143[A] [App Term 1st Dep't 2012] ), in which the Appellate Term upheld the lower court's denial of the tenant's motion to dismiss a holdover petition where the tenant "failed to conclusively establish that petitioner-landlord waived its right to pursue its eviction claim by its post-termination, pre-petition acceptance of a single ‘rent’ payment." Affirmation in Opposition at ¶ 12.
On reply, Respondent argues that the proceeding must be dismissed because "Petitioner has failed to provide any explanation regarding the acceptance and retention of Respondent's HRA shelter allowance check B for May 2017." Attorney's Affirmation in Reply dated March 13, 2018 at ¶ 13. Respondent's attorney discusses and provides a copy of a decision of the Hon. Howard Baum issued subsequent to the filing of the motion to dismiss, 764 E 213th St Realty v. Royer (2017 NYLJ LEXIS 2666 [Civ Ct Bx Co, Sept 10, 2017] ), in which the Court granted a tenant's motion to dismiss based on a finding of vitiation of the termination notice due to the landlord's acceptance of public assistance shelter allowance checks during the window period.
DISCUSSION
On a motion to dismiss under CPLR R 3211 the court is required to afford a liberal construction to the pleading. Leon v. Martinez (84 NY2d 83, 87–88, 638 NE2d 511, 513, 614 NYS2d 972, 974 [1984] ). The court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." Id.
Respondent's motion to dismiss, based on the chronology as set forth above and an HRA printout, is brought under CPLR R 3211(a)(1) on the ground that the action is barred by documentary evidence; CPLR R 3211(a)(2) for lack of subject matter jurisdiction; and CPLR R 3211(a)(7) for failure to state a cause of action. A motion under CPLR R 3211(a)(1)"may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Goshen v. Mut Life Ins Co (98 NY2d 314, 326, 774 NE2d 1190, 1197, 746 NYS2d 858, 865 [2002] ); Leon v. Martinez, supra (84 NY2d at 88, 638 NE2d at 513, 614 NYS2d at 974 ).
The leading case in the First Department on the issue of the effect of accepting and retaining rent during the window period is 205 E 78th St Assocs v. Cassidy (192 AD2d 479, 598 NYS2d 699 [1st Dep't 1993] ), which reversed the Appellate Term and dismissed a nonprimary residence holdover petition for the reasons stated by both the trial court judge and dissenting Appellate Term Justice McCooe (1991 NY Misc LEXIS 840, 206 NYLJ 63 [App Term 1st Dep't 1991] ). Cassidy was predicated upon a "Golub " notice which terminated the tenancy as of the end of the lease term on July 31, 1990. The landlord then accepted the tenant's rent payment in and for the month of August 1990, prior to the commencement of its holdover proceeding The Court found that the landlord's acceptance of that payment in August 1990 nullified the termination of the tenancy as of July 31 as stated in the "Golub " notice.
The facts and chronology herein are sufficiently distinct from those in Cassidy to give the Court pause before simply finding, at this juncture—on a motion to dismiss—that the termination notice was vitiated by acceptance of rent and dismissal is warranted. First, this is not a proceeding based on nonprimary residence where, if the proceeding is dismissed it can be brought again in the future, Top of Form Kaycee West 113th Street Corp v. Diakoff (160 AD2d 573, 554 NYS2d 216 [1st Dep't 1990] ); rather, this is a proceeding based upon the harboring of a pet as a lease violation, which is strictly limited by the Pet Law's three-month waiver period, see Seward Park Hous Corp v. Cohen (287 AD2d 157, 734 NYS2d 42 [1st Dep't 2001] ). Second, whereas in Cassidy the predicate notice terminated the tenancy as of the last day of a particular month and the landlord then accepted rent from the tenant for the next subsequent month, here the predicate notice terminated the tenancy in the middle of a month and the landlord only accepted and cashed a half-month's shelter allowance from HRA—specifically for the "B" cycle of that same month. Neither side has proffered a copy of the lease and no evidence has been presented or argument made that Respondent was not responsible for the full rent due for the month of May 2017, see, e.g., Avelino v. Fasano (15 Misc 2d 635, 180 NYS2d 342 [App Term 1st Dep't 1958] )(where tenant chose to remain in possession after the first of the month, "by doing so, became liable for the full month's rent"); Thirty–One Co v. Haggerty (2009 NY Misc LEXIS 4474, 2009 NY Slip Op 31738[U][Sup Ct NY Co] )(where lease clearly stated that rent must be paid "in equal monthly installments in advance on the first day of each month", court held that "the entire rent for January 2008 became due and owing under the Lease on January 1, 2008"), or that the rental period is a half month, with payments due on or around the first and fifteenth of the month, as opposed to a standard lease agreement with a monthly rent due on or around the first of each month to cover the full month's rent.
A very recent Appellate Term, First Department decision appears to be very closely if not precisely on point. In Brown v. Felton (2018 NY Misc LEXIS 764, 2018 NY Slip Op 50301[U] [App Term 1st Dep't 2018] ), the landlord had terminated the tenancy "in November 2016", accepted an HRA rent check dated November 25, 2016 and commenced a holdover proceeding on December 8, 2016. While the exact date of the termination of the tenancy and concomitant commencement of the "window period" is not mentioned in the decision, which also does not mention or try to distinguish Cassidy , the Appellate Term did note that the HRA check, "which was accepted by landlord before commencement of the proceeding, was properly applied to the then-current, pre-termination (November 2016) rent."
As the exact date of the termination of the tenancy is not mentioned, it cannot be determined with certainty that the precise chronology in that decision is on all fours with the chronology herein.
The decision of Housing Court Judge Baum in 764 E 213th St Realty, LLC v. Royer, supra , discussed in Respondent's attorney's Reply Affirmation, differs from the facts herein in that the tenancy in that case, as in Cassidy , was clearly terminated by a 30–day notice as of the last day of a specific month (April 2017) and then the landlord accepted and retained both the "A" and "B" cycle HRA shelter allowance checks in and for the following month (May 2017). Here, where all that was accepted and retained during the window period was "a single ‘rent’ payment", 49 Terrace Corp v. Richardson (36 Misc 3d 143[A], 959 NYS2d 89 [App Term 1st Dep't 2012] ), in the form of an HRA "B" cycle shelter allowance that arguably was due, based on the specific chronology of this case, as of the first of the month and prior to the commencement of the "window period," the Court cannot say with certainty that "the facts as alleged do not fit within any cognizable legal theory." Leon v. Martinez (84 NY2d 83, 87–88, 638 NE2d 511, 513, 614 NYS2d 972, 974 [1984] ).
CONCLUSION
For the reasons stated above, Respondent's motion is denied without prejudice and the proceeding is restored to the calendar for trial or settlement on May 2, 2018. Copies of this Decision & Order will be mailed to the parties' respective counsel if not picked up in the Part by the end of this week.