Summary
In Town of Oyster Bay Hous Auth v Kohler (34 Misc 3d 1234[A], 950 NYS2d 611 [Dist Ct Nassau Co 2012]), a holdover proceeding against a tenant living in federally subsidized housing, the court vacated the judgment and warrant of eviction and restored the tenant to possession of his apartment after finding that the entry of a default judgment against the tenant, who was incarcerated at the time, was "improper and should not have occurred."
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No. LT–003323–11.
2012-03-21
TOWN OF OYSTER BAY HOUSING AUTHORITY, Petitioner(s), v. Joseph KOHLER, Respondent(s).
Law Office of Carman, Callahan & Ingham, LLP, Farmingdale, Attorney for Petitioner. Joseph Kohler, Beacon, Respondent pro se.
Law Office of Carman, Callahan & Ingham, LLP, Farmingdale, Attorney for Petitioner. Joseph Kohler, Beacon, Respondent pro se.
SCOTT FAIRGRIEVE, J.
The following named papers numbered 1 to 3
submitted on this Motion on February 24, 2012
papers numbered
Notice of Motion and Supporting Documents1, 2Order to Show Cause and Supporting Documents
Opposition to Motion3
Reply Papers to Motion
The Court has before it the functional equivalent of a motion by the respondent, appearing pro se, to vacate the judgment of possession and warrant of eviction issued on June 22, 2011, by way of respondent's default.
The petitioner, Town of Oyster Bay Housing Authority, commenced this summary holdover proceeding against Joseph Kohler, seeking to recover a judgment of possession and warrant of eviction for the premises located at 107–57 Central Park Road, Plainview, New York 11803.
The petitioner alleges that the tenancy between the parties terminated by the respondent's criminal conviction of VTL # 600.2 [Leaving Scene of an Accident With Personal Injury] and VTL # 1212 [Reckless Driving] in a separate and unrelated criminal proceeding. The petitioner contends that these convictions violate Paragraphs 7 and 13 of the lease.
Despite petitioner's counsel's knowledge that respondent has been incarcerated in the Fishkill Correctional Facility in upstate Beacon, New York, since February 18, 2009, the petitioner commenced this action on Saturday, June 10, 2011, by the service of a Petition and Notice of Petition in accordance with RPAPL # 735 [nail and mail] at the property sought to be recovered. A review of the affidavit of service attached to the Petition and Notice of Petition indicates that on June 13, 2011, a follow up mailing was sent to 107–57 Central Park Road, Plainview, New York 11803. In addition, on June 13, 2011, the Petition was filed with the Court. The Petition was noticed to be heard on June 22, 2011, at 9:30 a.m.
As the petitioner had knowledge respondent was no longer residing at this location, service in this manner would ordinarily be ineffective to confer personal jurisdiction ( see, Costa v. Franklin General Hospital, 121 A.D.2d 360, 502 N.Y.S.2d 795 [2d Dept 1986] ), as service is ineffective if it is made at a location where a tenant no longer resides. See 30–40 Associates Corp. v. DeStefano, NYLJ, 3/5/03, p. 18, col. 6 (App Term 2003).
The Court notes that since RPAPL # 735 does not specify how service is to be affected upon an incarcerated individual, reference may be made to New York's Correction Law # 620 which authorizes service of process upon an imprisoned individual. An officer to whom papers are delivered must, without delay, deliver those papers to the prisoner with the date and time of receipt noted thereon ( see,Correction Law # 620; Montes v. Seda, 208 A.D.2d 388, 626 N.Y.S.2d 61 [1st Dept 1994] ).
In the instant case, this Court is left to assume that the procedures set forth in Correction Law # 620 were followed because on June 20, 2011, this Court received a typed written letter from the incarcerated respondent. Attached to the letter was an envelope postmarked from a post office in Massapequa, New York, indicating that the petitioner mailed the respondent the Petition and Notice of Petition on June 13, 2011. The respondent's letter to this Court is dated June 16, 2011, and in sum and substance sought an adjournment of this matter for thirty (30) days in order to obtain counsel. This Court notes that the letter indicates that a carbon copy was sent to petitioner's counsel.
Despite this Court having received respondent's request for an adjournment, petitioner's attorney appeared on the return date as set forth in the Petition. This matter proceeded by inquest and the petitioner was awarded a Judgment of Possession and Warrant of Eviction.
Notably, the Court file jacket indicates that respondent failed to appear. It also has the notation “defendant incarcerated-upstate”. In addition, the words “defendant's answer filed7–11–2011”. (This Court notes that a thorough review of the file contains no answer that the respondent filed, before or after the judgment was awarded). This Court further notes that petitioner's counsel's claim that this Court granted the respondent's request for an adjournment is without basis ( see, Petitioner's Affirmation in Opposition pg 1, ¶ 4).
Subsequent to the issuance of the Judgment of Possession and Warrant of Eviction, the respondent has made several submissions to this Court.
On July 11, 2011, this Court received what respondent labeled a “Reply Affidavit”. This submission is essentially a motion to vacate the judgment of possession and warrant of eviction. Accordingly, this Court will treat it as such.
The respondent argued that his conviction for VTL # 1212 [Reckless Driving] and VTL # 600.2a [Leaving Scene with Personal Injury] was not a violation of the provisions of his lease. The respondent annexed an affidavit of service indicating service upon petitioner's counsel, Gregory Carman, Esq.
No action was taken on that submission.
Having received no response from this Court, on November 2, 2011, this Court received another motion from the respondent labeled a Motion to Re–Argue pursuant to CPLR # 2221. The respondent, in essence, again sought to challenge the grounds for the basis of his alleged violations of the lease.
On November 14, 2011, the Court, by Hon. Eric Bjorneby, issued an order denying the respondent's re-argument motion, on the grounds that it had not been served on petitioner's counsel.
On December 20, 2011, this Court received a third motion from the respondent. This submission was basically a copy of respondent's prior motion with an affidavit of service annexed to the cover page. It was sworn to by a notary public and attested to the fact that Greg Carman, Esq., the petitioner's counsel, was now properly served a copy of the motion.
On January 12, 2012, this Court received a letter from respondent, dated January 4, 2012. Respondent acknowledged that he was notified by the Clerk of the Court of the adjourned date of January 12, 2012. The respondent requested that this Court keep him informed of the determination of his motion, since he was unable to appear due to his incarceration.
On February 17, 2012, this Court received an Affirmation in Opposition by petitioner's counsel. The petitioner, in essence, argues that the judgement of possession and warrant of eviction should not be vacated. The petitioner further contends that respondent's criminal conviction violates paragraphs 7 and 13 of the lease.
The Court finds as follows:
In reviewing the Petition in the instant summary holdover proceeding, this Court finds it to be defective for several reasons. It is well settled that where a landlord seeks to recover possession of a premises in a summary proceeding, he or she must allege in the petition the regulatory status of the premises and compliance with the regulations associated therewith (Villas of Forest Hills Company v. Lois Lumberger, 128 A.D.2d 701, 513 N.Y.S.2d 116 [2d Dept 1987]; Giannini v. Stuart, 6 A.D.2d 418, 178 N.Y.S.2d 709 [1st Dept 1958]; see alsoRPAPL # 741[1] [the petition must “[s]tate the respondent's interest in the premises and his relationship to petitioner with regard thereto”]; # 741[2] [the petition must “[s]tate the respondent's interest in the premises and his relationship to petitioner with regard thereto]; # 741[3] [the petition must “[d]escribe the premises from which removal is sought”]; and # 741[4] [the petition must “[s]tate the facts upon which the special proceeding is based”] ).
Thus, where a tenant sought to be removed participates in a Federally Subsidized Housing program, the Petition must allege the regulatory status of the tenant, the regulatory status of the premises and must allege petitioner's compliance with the regulatory scheme ( Sheridan 164th St. Assocs. v. Fountaine, NYLJ, February 24, 1995, p. 30, col. 5 [App Term 1st Dept] ).
These requirements are necessary because they may determine the scope of the rights of the parties ( see, Villas of Forest Hills Company v. Lois Lumberger, supra, 128 A.D.2d at 702, 513 N.Y.S.2d 116;MSG Pomp Corporation v. Doe, 185 A.D.2d 798, 586 N.Y.S.2d 965 [1st Dept 1992] ) and may affect the manner in which the court “proceed[s]” with the action.
Significantly, the failure to allege the regulatory status of a tenancy may affect not only the Petition, but also may undermine a petitioner's attempt to comply with the requirements imposed by 24 CFR # 982.310(e)(2)(ii), that a landlord seeking to terminate a HUD tenancy serve upon the Public Housing Authority a copy of the notice of termination and Petition ( see, Williams v. New York City Housing Authority, 81 Civ 1801 [SDNY 1995] ).
This requirement, like its now extinct predecessor regulation, is designed to “give notice to the public housing agency administering Section 8 funding, that the continued possession of occupants in whom it has a substantial interest is threatened” (Jennie Realty Co. v. Sandberg, 125 Misc.2d 28, 30, 480 N.Y.S.2d 268 [App Term 1st Dept 1984] ). This is important not only to ensure that the public housing agency “does not continue to make housing subsidy payments on behalf of a tenant who is no longer in possession, but also to enable it to monitor the actions of the landlord and to afford it the opportunity to intervene if it deems it necessary to protect the interests of the section 8 tenant” (Lamlon Development Corp. v. Owens, 141 Misc.2d 287, 533 N.Y.S.2d 186 [District Court Nassau Co 1988]).
Thus, the question before this Court is whether or not the petitioner's failure to allege the specific federal housing program governing the respondent's tenancy requires a dismissal of this proceeding.
The fact that a regulatory status is not alleged in a Petition is not necessarily a jurisdictional defect warranting dismissal ( see, 215–219 Union Ave. Association v. Miller, 134 Misc.2d 507, 511 N.Y.S.2d 489 [Mount Vernon City Ct 1987]; New Greenwich Gardens Association, LLC v. Saunders, 23 Misc.3d 521, 871 N.Y.S.2d 901 [Nassau Dist Ct 2009]; but compare, Homestead Equities, Inc. v. Washington, 176 Misc.2d 459 [1998];Villas of Forest Hills Company v. Lois Lumberger, 128 A.D.2d 701, 513 N.Y.S.2d 116 [2d Dept 1987]; 251 East 119th Street Tenants Association v. Torres, 125 Misc.2d 279 [1984];Wallace Realty Management Inc. ., v. Henson, 66 Misc.2d 203 [1971] ).
However, in Homestead Equities, Inc. v. Washington, 176 Misc.2d 459, 672 N.Y.S.2d 980 [Civil Court, Kings County, 1998], the Court dismissed a petition in a summary holdover proceeding upon the grounds that the petition failed to allege the Section 8 status of the tenant, the regulatory status of the premises and petitioner's compliance with the Section 8 regulatory scheme.
In doing so, the court recognized two competing principles of law. First, the law's preference for permitting parties to correct pleading infirmities by amendment [ see, Birchwood Towers No. 2 Associates v. Schwartz, 98 A.D.2d 699, 469 N.Y.S.2d 94 [2d Dept 1983] and secondly the law's concomitant demand that parties in a summary proceeding, governed as it is entirely by statute, “strictly comply with the statutory requirements” of the applicable law to confer jurisdiction upon a Court ( see, MSG Pomp Corporation v. Doe, 185 A.D.2d 798, 586 N.Y.S.2d 965 [1st Dept 1992] ).
In Homestead Equities, Inc, supra, the Court further stated:
Here, although petitioner's failure to allege in the petition the regulatory status of the tenancy or compliance with applicable federal regulations alone may not be sufficient to warrant dismissal of the petition, numerous other defects in the petition and notice of termination in this proceeding collectively require that the petition upon which the proceeding is based be dismissed.
Similarly, as in Homestead Equities, Inc., the petition fails to allege the regulatory status of the respondent, the regulatory status of the premises and petitioner's compliance with the regulatory scheme. While these defects alone may not warrant dismissal, the petition also fails to allege that a proper thirty (30) day Termination Notice was served.
It is well settled that a Notice of Lease Termination is a condition precedent to the commencement of a summary holdover proceeding ( see, Chinatown Apartments, Inc., v. Chu Cho Lam, 51 N.Y.2d 786 [1980];Homestead Equities, Inc., v. Washington, 176 Misc.2d 459 [1998];Villas of Forest Hills Company v. Lois Lumberger, 128 A.D.2d 701, 513 N.Y.S.2d 116 [2d Dept 1987]; 251 East 119th Street Tenants Association v. Torres, 125 Misc.2d 279 [1984] ). The failure to serve a predicate notice cannot be cured nunc pro tunc.
In the instant case, Paragraphs 13 and 14 of the lease agreement require not only a thirty (30) day Termination Notice to be served on the tenant, but also requires service in accordance with the U.S. Department of Housing and Urban Development.
Paragraph 13 entitled LEASE TERMINATION BY MANAGEMENT provides in relevant part:
Any termination of this Lease shall be carried out in accordance with U.S. Department of Housing and Urban Development regulations, State and local law, and the terms of this Lease.
Paragraph 14 entitled NOTICE OF LEASE TERMINATION, states as follows:
Management shall give written Notice of Termination as follows:
a.for failure to pay rent, at lease fourteen (14) days;
b.for creation or maintenance of a threat to health or safety of other Residents or Management's employees, reasonable time based on the urgency of the situation; or
c.for all other cases, thirty (30) days, unless State law permits a shorter period.
The Notice to Vacate required by State or local law may be combined with or run concurrently with a Notice of Lease termination required by this lease.
The Notice of Lease Termination from Management shall be either personally delivered to the Resident or to an adult member of the Resident's family residing in the dwelling unit, or sent to the Resident by First Class Mail, properly addressed, postage pre-paid. The notice shall:
a.Specify the date the Lease shall be terminated;
b.State the grounds for termination with enough detail for the Resident to prepare a defense. The Management shall solely on the grounds stated in the Notice of Lease Termination in the event eviction action is initiated;
c.Advise the Resident of the right to reply as he or she may wish, to examine the Resident's documents directly relevant to the termination or eviction, to use the Grievance Policy to contest the termination, and/or defend the action in court.
As stated by the Court in Sultanik v. Byrd, 2007 N.Y. Slip Op 51087U, 15 Misc.3d 1141A [Just Ct, Westchester County 2007]:
A valid notice of termination is a condition precedent to the commencement of a Section 8 eviction proceeding (Homestead Equities v. Washington, 176 Misc.2d 459, 462, 672 N.Y.S.2d 980 [Civ Ct, Kings County1998]; Chinatown Apts. v. Chu Co Lam, 51 N.Y.2d 786, 788 [1980] ).... “It is essential that the PHA be given timely notice of the commencement of proceedings to terminate the tenancy, not only so that it does not continue to make housing subsidy payments on behalf of a tenant who is no longer in possession, but also to enable it to monitor the actions of the landlord and afford it the opportunity to intervene if it deems it necessary to protect the interests of the Section 8 tenant” (Lamlon Development Corp. v. Owens, 141 Misc.2d 287, 294, 533 N.Y.S.2d 186 [Dist Ct, Nassau County 1988] ). “A landlord seeking to terminate a Section 8 tenancy must serve a copy of the termination notice (or equivalent notice) on the public housing authority at the same time that such notice is served on the tenant. Failure to do so is a jurisdictional defect which precludes the maintenance of a summary proceeding” ( Id.)
Thus, the petitioner's failure to serve a thirty (30) day Termination Notice upon the respondent and the governing agency ( see, HUD Regulation 247.4[a] ), along with the other defects in the petition, requires a dismissal of this action.
By the express terms of the lease and HUD regulations, it is clear that a Notice of Lease Termination is a condition precedent to the right to bring an eviction proceeding ( see, Chinatown Apartments, Inc., v. Chu Cho Lam, 51 N.Y.2d 786 [1980];Homestead Equities, Inc., v. Washington, 176 Misc.2d 459 [1998];Villas of Forest Hills Company v. Lois Lumberger, 128 A.D.2d 701, 513 N.Y.S.2d 116 [2d Dept 1987]; 251 East 119th Street Tenants Association v. Torres, 125 Misc.2d 279 [1984] ).
For all the foregoing reasons, this Court hereby dismisses the Petition and Notice of Petition. Even assuming arguendo, this Court found that petitioner had complied with the aforementioned statutory requirements, the judgment of possession and warrant of eviction must be vacated on yet another ground.
As previously stated, the judgment of possession and warrant of eviction were granted upon the tenant's default.
It is well settled that on an application for a default judgment, the Court is obliged to review, inter alia, the sufficiency of the petition upon which the proceeding is based to determine whether the pleadings are sufficient and whether predicate notices were properly served ( see, Central Park Gardens Inc. v. Ramos, NYLJ, April 9, 1984, p. 12, cols. 6, 7 [App Term 1st Dept] [“Civil Court judges assigned the task of entertaining applications for entry of default final judgments ... do not function as mere automat[ons]. They should examine the pleadings ... If ... a true jurisdictional defect taints a proceeding, final judgment in landlord's favor may not be entered upon tenant's default”]; 3 Rasch, New York Landlord and Tenant, Summary Proceedings, 3rd Ed ., # 45:2, at 168 [“On all applications for default judgments, the court need not necessarily grant them automatically. The court may examine the notice of petition and petition ...; for, if a jurisdictional defect taints a proceeding, final judgment in landlord's favor may not be entered on tenant's default”] ).
Indeed, this judicial responsibility applies even in nonpayment proceedings, where the Court's discretion to refrain from granting a default judgment, unlike the Court's discretion in holdover proceedings is limited by RPAPL # 732(3) (Matter of Brusco v. Braun, 84 N.Y.2d 674 [1994] ).
Furthermore, because one of the parties on a motion for a default judgment is, by virtue of the motion, not present to answer the motion, the Court must perform its obligations sua sponte, notwithstanding the absence of a motion challenging the sufficiency of the petition or the predicate notices ( P.S. 85th Street F.L.P. v. Demos, 17 Misc.3d 1139[A] [2007]; citing to, Homestead Equities v. Washington, 176 Misc.2d 459, 672 N.Y.S.2d 980 [Civ Ct N.Y. County 1998] ).
In the instant case, the petition was verified by counsel for the petitioner. Even though RPAPL # 741 clearly authorizes verification by a representative, attorney or agent, a pleading verified only by an attorney cannot serve as a basis for the entry of a default judgment where the attorney lacks personal knowledge of the facts constituting the claim (Cobble Hillbillies, LLC., v. Interior Design, 4 Misc.3d 987 [2004],citing to, Brusco v. Braun, 84 N.Y.2d 674 [1994] ).
In Brusco, the Court of Appeals held that the trial court, when faced with an application for a default judgment under N.Y. RPAPL # 732, must ascertain that the petition is “proper in form and substance [and] demonstrates grounds for relief and the supporting papers establish proper service on the tenant” (Brusco, 84 N.Y.2d at 679, 621 N.Y.S.2d 291, 645 N.E.2d 724;see also, Homestead Equities v. Washington, 176 Misc.2d 459, 672 N.Y.S.2d 980 [Civ Ct N.Y. County 1998] ).
Moreover, the Court of Appeals specifically noted twice in its decision that, in the case before it, there was an adequate showing for entry of a default judgment since the petition had been verified on personal knowledge (Brusco, 84 N.Y.2d at 681, 621 N.Y.S.2d 291, 645 N.E.2d 724).
The Appellate Division decision in Brusco also specifically noted that the petition in that case had been personally verified by the petitioner (Brusco, 199 A.D.2d 27, 31, 605 N.Y.S.2d 13 [1st Dept 1993] ). It then went on to distinguish the situation before it from that at issue in Park Holding Co. v. Arber, 145 Misc.2d 39, 545 N.Y.S.2d 1000 [Civ Ct N.Y. County 1989] ). The issue in that case, as in Brusco, was the trial court's practice of holding inquests in every nonpayment case where the tenant had failed to file an answer. The Appellate Division noted that, while the trial court had been wrong to hold an inquest, it had been correct in refusing to enter a default judgment since the petition had been verified only by the attorney.
The Appellate Division explained:
While RPAPL 741 permits a petition to be verified by the attorney for the landlord, it is well settled that an affidavit of counsel is of no probative value for purposes of summary determination (Hasbrouck v. City of Goversville, 102 A.D.2d 905, 477 N.Y.S.2d 486, aff'd 63 N.Y.2d 916, 483 N.Y.S.2d 214, 472 N.E.2d 1042) unless accompanied by documentary evidence (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718). While the facts in Park Holding (supra) do not justify inquest, the facial insufficiency in the pleadings and accompanying affidavits did warrant the submission of “additional proof” in the form of an affidavit from someone in the position of landlord or managing agent, attesting to the amount of rent currently due and owing (CPLR 409[a] ).
In other words, the Court held that if warranted a Court may require the submission of additional proof pursuant to CPLR 409[a], when confronted with the facial insufficiency of pleadings or affidavits.
In fact, CPLR 409[b] which governs hearings in special proceedings, requires that the Court make a summary determination “upon the pleadings, papers and admissions”. The Court reasoned that the standards governing motions for summary judgment are applicable to special proceedings generally of which the summary proceeding to recover possession of real property is a species (Matter of Port Authority, 18 N.Y.2d 250 [1966] ). Such additional proof may be in the form of an affidavit from someone in the position of the landlord or managing agent, attesting the facts and circumstances and any rent owed ( Id ).
In the instant case, the petition was verified by counsel, who had no personal knowledge of the underlying facts and circumstances to justify the issuance of the judgment of possession and warrant of eviction granted on default. As a result, the requirements established by the Court of Appeals for the entry of a judgment on default have not been met.
In view of the foregoing reasons, this Court hereby vacates the judgement of possession and warrant of eviction granted on June 22, 2011. The instant proceeding is hereby dismissed.
Once the warrant has been issued and executed, as in the instant case, the landlord-tenant relationship has been terminated (Harris v. Yuan, 157 Misc.2d 359, 597 N.Y.S.2d 262 [NY City Civ Ct 1993] ).
However, after issuance of the warrant, and even after execution of the warrant, the Court retains jurisdiction to grant relief from its own judgment or order, if the warrant was illegally or fraudulently provided and there are compelling facts, circumstances and equities warranting the relief sought ( see, Felder v. Bentley, 20 Misc.3d 1140[A] [Dist Ct 2008], see generally, Motion to Vacate Warrants of Eviction, # # 17:38 et seq.).
RPAPL # 479, states, in pertinent part:
... the issuing of a warrant for the eviction of a tenant cancels the agreement under which the persons removed held the premises and annuls the relation of Landlord/Tenant, but nothing contained herein shall deprive the Court of the power to vacate such warrant for good cause shown prior to the execution there-of.
Further, the power of the Court to restore a respondent to possession of an apartment, even after an eviction, has long been held to exist ( 2720 LLC v. White, 28 Misc.3d 1234[A] [2010], citing to Brusco v. Bruan, 84 N.Y.2d 674, 621 N.Y.S.2d 291, 645 N.E.2d 724 [CANY 1994].
In Brusco, supra, which is the seminal case, the Court of Appeals held that the Court retains jurisdiction of a case even after execution of the warrant. “[T]he Civil Court may, in appropriate circumstances, vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed” ( Id. at pg. 682, 621 N.Y.S.2d 291, 645 N.E.2d 724,citations omitted, see also New York City Housing Authority v. Torres, 61 A.D.2d 681, 403 N.Y.S.2d 527 [AD 1st Dept 1978]; Solack Estates v. Goodman, 78 A.D.2d 512 [1980];Central Brooklyn Urban Dev. Corp. v. Copeland, 122 Misc.2d 726 [1984] ).
Accordingly, the judgment and warrant previously issued are hereby vacated and the proceeding is dismissed. Respondent is not responsible for any legal fees, Marshal's fees or moving expenses incurred by petitioner as this Court has already determined that the eviction was improper and should not have occurred.
This constitutes the Decision and Order of the Court.
So Ordered: