Opinion
35369/2017
04-30-2018
BSP 1898 BELMONT 1 LLC & BSP 1898 Belmont 2 LLC, Petitioner(s)–Landlord(s) v. Glenda DEAN; N.Y.C.H.A., Respondent(s)–(Tenant)
Attorneys for Petitioner: Hertz, Cherson & Rosenthal, P.C., 118–35 Queens Boulevard, 9th floor, Forest Hills, New York 11375, (718) 261–7700 Attorneys for Respondent: Chelsea L. Breakstone, Esq., Bronx Legal Services, 349 E. 149th Street, 10th Floor, Bronx, New York 10451, (718) 928–3700
Attorneys for Petitioner: Hertz, Cherson & Rosenthal, P.C., 118–35 Queens Boulevard, 9th floor, Forest Hills, New York 11375, (718) 261–7700
Attorneys for Respondent: Chelsea L. Breakstone, Esq., Bronx Legal Services, 349 E. 149th Street, 10th Floor, Bronx, New York 10451, (718) 928–3700
Diane E. Lutwak, J.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Motion to Amend Answer and Dismiss Petition:
Papers/Numbered
Respondent's Notice of Motion, Affirmation, Affidavit and Exhibits A–H 1
Petitioner's Affirmation in Opposition and Exhibits A–D 2
Respondent's Affirmation in Reply 3
Upon the foregoing papers and for the following reasons, respondent Glenda Dean's motion to amend the answer, dismiss the petition and for other relief is decided as follows.
In this nonpayment proceeding, the petitioner-landlord seeks to recover alleged rent and additional arrears of $3616.94, comprised of rent for March 2017 of $885.94, rent for April 2017 of $1326.00, rent for May 2017 of $1255.00 and a legal fee of $150. The petition states that the premises are subject to Rent Stabilization and that the rent demanded "is only the Respondents share of the rent pursuant to the Section 8 NYCHA supervised rental subsidy." NYCHA (New York City Housing Authority) is named as a respondent, and the petition further states that, "NYCHA & Respondent were both given notice of the Petitioners intent to bring this action. The reason given to NYCHA was Respondents failure to pay rent. NYCHA objected to Certification and only Respondents share of the rent is sought from Respondent." The petition states that rent was demanded by a five-day written notice. That notice, a copy of which is attached to the petition and dated May 31, 2017, seeks rent arrears of $3466.94 and states the same breakdown of rent arrears as is listed in the petition, without the legal fee of $150.
Also attached to the petition is a form entitled "Certification of Basis for Eviction Proceeding Against Tenant Participating in the Section 8 Housing Choice Voucher Program" dated May 5, 2017. It is stamped "Received" on May 11, 2017 by the [NYCHA] "Leased Housing Dep't Eviction Unit" and lists the names and addresses of the tenant, the landlord and the landlord's attorneys. The upper half of the form states the landlord's intention to commence an eviction proceeding and mirrors the information stated in the rent demand and petition: nonpayment of $3466.94, comprised of "the tenant's share of rent at $1,255.00 per month" with the further "explanation and itemization" of "MAY 17 $1,255.00 APR 17 $1,326.00MAR 17 $885.94." The lower half of the form contains NYCHA's response to the landlord's Certification dated May 17, 2017. NYCHA checked off the boxes indicating that it objects to the Certification because the proposed nonpayment eviction proceeding seeks to recover from the tenant more than her share of the rent. $1,255.00 is typed in on the form as the "correct tenant's share of rent per month" and below that is a handwritten notation: "TS $814.34 for 4/17–5/17".
Respondent pro se answered the Petition on June 28, 2017, raising a general denial and a defense of conditions in the apartment which petitioner did not repair.
Respondent, now represented by counsel, moves to amend her answer to add three new defenses and to dismiss the petition under CPLR R 3211 based on each: (1) defective petition in that it seeks rent in excess of her Section 8 tenant share in violation of the Williams Consent Decree; (2) defective rent demand; and (3) invalid multiple dwelling registration. The proposed amended answer also states a fourth defense and first counterclaim of "violation of the warranty of habitability", providing greater particularity than is pled in respondent's original answer, a second counterclaim seeking an order to correct the alleged violations and a third counterclaim for attorneys' fees. Respondent also moves for a judicial inspection of the premises, for an order to correct violations and for reasonable attorneys' fees.
In her affidavit in support of the motion, respondent states that, prior to April 2017, her Section 8 tenant share of the rent was $816. Thereafter, by NYCHA notice dated March 28, 2017 (Exhibit F) she learned that, upon "Annual Review" and as of April 1, 2017, her share was being reduced to $814.34 and the NYCHA portion set at $745, for a "Total Contract Rent" of $1559.34. By NYCHA notice dated May 5, 2017 (Exhibit G) she learned that, upon "Lease Renewal" and as of June 1, 2017, her share was being increased to $1,255 and the NYCHA portion remained at $745, for a "Total Contract Rent" of $2000.00. Respondent's attorney points out that petitioner's rent demand and petition seek more than the tenant's share as stated in NYCHA's notices:
• $1326 for April 2017, when respondent's tenant share was $814.34.
• $1255 for May 2017, when respondent's tenant share was $814.34.
Respondent's attorney argues that petitioner brought this proceeding in violation of the Williams Consent Decree, that is, the Second Partial Consent Judgment issued by the Honorable Robert J. Ward in the case of Williams v. New York City Hous Auth (81 Civ 1801 [SDNY Feb 2, 1995] ), which applies to eviction proceedings brought against NYCHA Section 8 voucher holders like respondent herein. Respondent's attorney cites to and quotes from paragraph 10 of the Consent Decree, which prohibits a landlord from bringing a nonpayment eviction proceeding "that seeks a judgment against the tenant for the subsidy portion of the rent." Respondent's attorney also argues that the predicate rent demand is defective because, by seeking more than the tenant's share of the rent in and for each month listed, it is not an "approximate good faith sum of rent assertedly due for each such period," citing and quoting from Schwartz v. Weiss–Newell (87 Misc 2d 558, 561, 386 NYS2d 191, 194 [Civ Ct NY Co 1976] ). Respondent asserts that before retaining legal counsel she did not understand that her landlord is not permitted to sue her for more than her share of the rent. Respondent's Affidavit, sworn to September 5, 2017, at ¶ 2. As to the multiple dwelling registration, respondent provides (Exhibit H) a printout from the New York City Department of Housing Preservation and Development's (HPD's) website dated September 5, 2017 which states, "This property is not currently validly registered with HPD." On her breach of warranty of habitability defense and counterclaims, respondent asserts that she has resided in her apartment for eight years, Respondent's Affidavit at ¶ 1, and describes eighteen conditions which "have needed to be repaired throughout my tenancy," id. at ¶ 3.
In opposition, petitioner argues that the court should deny respondent's motion to amend her answer as the new defenses stated therein lack merit. As to the proposed defenses arising out of respondent's status as a NYCHA Section 8 voucher holder, petitioner asserts that it did comply with the requirements of the Williams Consent Decree and its rent demand does constitute an "approximate good faith sum of rent assertedly due," as required by the applicable case law.
Petitioner attaches pages one and five of the Williams Consent Decree to its opposition papers and quotes from paragraph 12 thereof, which states that when NYCHA objects to the landlord's Certification, as happened here, "and the landlord commences an eviction proceeding against the tenant, the landlord shall name and serve the Authority as a necessary party and shall commence a single proceeding against the tenant and the Authority." Petitioner asserts that because it named and served NYCHA in this proceeding, it is in compliance with the Williams Consent Decree.
As to the rent demand, petitioner's property manager Elizabeth Jimenez states that she contacted her attorneys about preparing a rent demand when respondent failed to pay rent for March, April and May 2017, Jimenez Affidavit, sworn to February 1, 2018, at ¶ 4, and that the monthly amounts listed in the rent demand are comprised of the rent billed ($1559.34 in March 2017 and $2000 in April and May 2017) minus the payments received from NYCHA, as follows:
• $885.34 for March 2017, when petitioner billed $1559.34 and NYCHA paid $674.
• $1326 for April 2017, when petitioner billed $2000 and NYCHA paid $674.
• $1255 for May 2017, when petitioner billed $2000 and NYCHA paid $745.
Jimenez Affidavit at ¶¶ 6–8. Ms. Jimenez asserts that respondent's rent had increased to $2000 as of March 1, 2017 under a renewal lease but petitioner billed her for that month at the prior rate of $1559.34 because it "received the renewal lease late and had already billed her for the lower amount." Jimenez Affidavit at ¶ 5. After subtracting the NYCHA payment of $674, that left respondent owing $885.34 which she failed to pay. For April 2017, when the full rent increased to $2000, respondent owed $1326 after subtracting NYCHA's payment of $674. For May 2017, respondent owed $1225 after subtracting NYCHA's payment of $745. Ms. Jimenez asserts that her office submitted the renewal lease to NYCHA for processing "in a timely fashion," and that, "[i]t was not until the first court date in this proceeding that my office became aware, via our attorneys, that NYCHA did not list the contract rent of $2000.00 until June 1, 2017." Jimenez Affidavit at ¶ 8.
Regarding the multiple dwelling registration defense, petitioner provides (Exhibit D) a printout from HPD's website dated January 3, 2018 reflecting a current registration that expires on September 1, 2018. Regarding the breach of the warranty of habitability claim, petitioner argues that this is repetitive as respondent already raised it in her original answer. As for the counterclaims, petitioner argues that (1) the request for a judicial inspection should be denied as respondent cited no authority for such relief; (2) the request for an order to correct was already raised in respondent's original answer; and (3) respondent is not entitled to attorneys' fees both because she is not the "prevailing party" and because she has not produced a copy of the lease nor asserted why she has not done so.
On reply, respondent's attorney argues that while petitioner may have complied with the section of the Williams Consent Decree that requires it to name and serve NYCHA due to its objection to petitioner's Certification, petitioner has nevertheless violated the Consent Decree's prohibition against landlords suing tenants for Section 8 subsidy monies and the petition and rent demand are accordingly defective, as they ask for more than what NYCHA determined respondent's share of the rent to be for the months in question.
DISCUSSION
Motion to Amend Answer
It is well-settled that, pursuant to CPR 3025(b), leave to amend pleadings is to be freely given absent prejudice or surprise to the opposing party. McCaskey, Davies & Assoc v. New York City Health & Hosps Corp (59 NY2d 755, 757, 463 NYS2d 434 [1983] ). In the absence of surprise or prejudice, it is an abuse of discretion, as a matter of law, for a trial court to deny leave to amend an answer during or even after trial. Pensee Assocs v. Quon Shih–Shong (199 AD2d 73, 605 NYS2d 35 [1st Dep't 1993] ). Here, it is evident from the petition that petitioner well knows that it must comply with the requirements of the Williams Consent Decree, as it named NYCHA as a party to this proceeding after NYCHA objected to petitioner's "Certification of Basis for Eviction Proceeding Against Tenant Participating in the Section 8 Housing Choice Voucher Program", a copy of which is attached to the petition. In her affidavit in support of her motion she asserts that until she retained counsel, she "did not understand that my landlord is not permitted to sue me for more than my share of the rent." It is reasonable to expect that respondent, who was unrepresented at the time she filed her answer, was not familiar with the terms of the Williams Consent Decree.
The delays in the progress of this proceeding are not such as to warrant denial of respondent's motion, which her attorney made returnable on September 13, 2017, the second adjourned date. It appears from the court file jacket and Stipulations in the file that all adjournments were on consent and due to extensions of the briefing schedule on respondent's motion as well as ordinary events of daily life and scheduling conflicts.
Accordingly, respondent's motion is granted and the proposed Amended Answer is hereby deemed duly served and filed. See, e.g., Alliance Hous II Assoc v. George (49 Misc 3d 883, 890, 14 NYS3d 670 [Civ Ct Bronx Co 2015] ), and cases cited therein .
Motion to Dismiss
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. 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 ). If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR R 3211 (a) (1) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action. Mill Fin, LLC v. Gillett (122 AD3d 98, 103, 992 NYS2d 20, 24 [1st Dept 2014] ).
Where the proceeding involves a Section 8 voucher administered by NYCHA, strict compliance with the Williams Consent Decree is required and dismissal granted where the requisite procedures are not followed. See, e.g., Renaissance Equity Holdings LLC v. O'Neil (2009 NY Misc LEXIS 2416, 241 NYLJ 91 [Civ Ct Kings Co 2009] )(tenant's motion for leave to file an amended answer and for summary judgment granted where Certification to NYCHA inaccurately included air conditioner fees that were not separated out from the rent); Dsouza v. Vassell (2008 NY Misc LEXIS 4885, 240 NYLJ 21 [Civ Ct Richmond Co 2008] )(tenant's motion to vacate stipulation of settlement and dismiss nonpayment proceeding granted where landlord sued for more than the tenant's share of the rent and failed to comply with various of the requirements of the Williams Consent Decree); 1319 St John's Realty LLC v. Conley (2008 NY Misc LEXIS 8330, 2008 NY Slip Op 30625[U][Civ Ct Kings Co 2008] )(tenant's motion to dismiss granted in nonpayment proceeding based on landlord's failure to comply with the certification procedures of the Williams Consent Decree after the Section 8 subsidy had been suspended due to the apartment having failed inspection); Alawlaqi v. Kelly (175 Misc 2d 570, 571, 669 NYS2d 152, 153 [Civ Ct Kings Co 1997] )(tenant's motion to dismiss holdover proceeding granted where, after NYCHA indicated it had no objection, landlord served the petition on NYCHA by regular mail only, and did not comply with the service requirements set forth in the Williams Consent Decree).
However, where the claim is that the landlord sought more than the tenant's share of the rent in a nonpayment proceeding, the remedy is a reduction of the judgment amount to eliminate the Section 8 subsidy portion. MPlaza, LP v. Corto (35 Misc 3d 139[A], 953 NYS2d 551 [App Term 1st Dep't 2012] )(modifying the lower court's order to the extent of "dismissing so much of the nonpayment petition as seeks recovery of rent arrears in excess of the Section 8 tenant's share of the rent"). See also 385, LLC v. Marlow (42 Misc 3d 131[A], 983 NYS2d 206 [App Term 2nd Dep't 2013] )(finding that the lower court erred in entering a final judgment against the tenant for a sum which included the Section 8 share of the rent and reducing the final judgment's monetary award to an amount that represented solely the tenant's share of the arrears).
Here, it is undisputed that petitioner has complied with certain of the Williams Consent Decree requirements, having named NYCHA as a respondent after NYCHA objected to its pre-petition Certification. As to respondent's claim that the petition should be dismissed because it seeks more than the tenant's share of the rent, as set forth above the remedy courts employ for such a defect is to "dismiss so much of the nonpayment petition as seeks recovery of rent arrears in excess of the Section 8 tenant's share of the rent." MPlaza, LP v. Corto, supra . However, insufficient evidence has been presented for the court to make such a determination on this motion to dismiss. Neither party has presented copies of the renewal lease or leases that were in effect during the months in question; notices petitioner received from NYCHA; other NYCHA documentation showing when and why it processed the purported renewal lease raising respondent's rent to $2000 as of June 1, 2017 and whether NYCHA will or did make any retroactive payments; or a rent breakdown or other documentation of the payments, if any, made by respondent during the period in question. Accordingly, neither the requested relief of dismissal of the petition, nor a reduction of the judgment amount to eliminate the Section 8 subsidy portion as indicated by the relevant caselaw, is warranted.
As to the rent demand, given the statements in the affidavit of petitioner's property manager, and the absence of proof that the NYCHA notices were served on petitioner in a timely manner, there is nothing to indicate that petitioner's demand was made other than in good faith. Rippy v. Kyer (23 Misc 3d 130[A], 885 NYS2d 713 [App Term 2nd Dep't 2009] ). Petitioner's property manager has explained how petitioner calculated the dollar amounts listed in the rent demand for the months of March, April and May 2017 and has asserted that petitioner did not know that NYCHA did not process the lease renewal with a monthly rent of $2000 until June 1, 2017 "until the first court date in this proceeding", Jimenez Affidavit at ¶ 8.
Accordingly, respondent's motion to dismiss the petition for failure to comply with the Williams Consent Decree and for being based on a defective predicate rent demand is denied, without prejudice.
As for respondent's motion to dismiss due to an invalid multiple dwelling registration, it appears that petitioner has remedied this problem, as evidenced by the HPD website printout dated January 3, 2018 attached to its opposition papers. Accordingly, that branch of respondent's motion is also denied, without prejudice. See Mago, LLC v. Singh (57 AD3d 629, 630, 871 NYS2d 186, 187 [2nd Dep't 2008] )("Proof of the plaintiff's compliance with the Multiple Dwelling Law registration requirements cured any defects in the registration of the subject multiple dwelling, and thus, the plaintiff's prior noncompliance does not bar recovery of retroactive rent").
Respondent's requests for an order to correct and for attorneys' fees are denied without prejudice, and may be reiterated after trial if the case does not settle and if appropriate. And while the court will not entertain a request for a judicial inspection at this juncture, respondent may submit an HPD inspection request to the court if that is still needed.
CONCLUSION
Accordingly, respondent's motion is granted to the extent of deeming the proposed amended answer duly served and otherwise denied. This proceeding shall be restored to the court's calendar for trial on June 6, 2018 at 9:30 a.m. This constitutes the Decision and Order of this Court.