Opinion
23851/16
10-07-2016
Concourse Green Associates, LP, Petitioner-Landlord, v. Toby Patterson, Respondent-Tenant.
Attorney for Respondent: Robert G. Hammond, Esq. Bronx Legal Services 349 E. 149th Street, 10th floor Bronx, New York 10451 (718) 928-3677 Attorney for Petitioner: Arianna Gonzalez-Abreu, Esq. Gutman, Mintz, Baker & Sonnenfeldt, LLP 813 Jericho Turnpike New Hyde Park, New York 11040 (516) 775-7007
Attorney for Respondent: Robert G. Hammond, Esq. Bronx Legal Services 349 E. 149th Street, 10th floor Bronx, New York 10451 (718) 928-3677 Attorney for Petitioner: Arianna Gonzalez-Abreu, Esq. Gutman, Mintz, Baker & Sonnenfeldt, LLP 813 Jericho Turnpike New Hyde Park, New York 11040 (516) 775-7007 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 Dismiss: Papers Numbered Notice of Motion, Attached Affirmation and Exhibits 1 Respondent's Memorandum of Law 2 Petitioner's Affirmation in Opposition 3 Respondent's Memorandum of Law in Reply 4
Upon the foregoing papers and for the following reasons, the motion to dismiss by respondent-tenant Toby Patterson is granted; the alternative relief sought of leave to file an answer is denied as moot.
In this summary holdover proceeding, the petitioner-landlord seeks to recover possession of Apartment 2E at 115 Marcy Place in the Bronx from the respondent-tenant who, according to petitioner, Petition at ¶ 2, has lived in this apartment for over seventeen years. The apartment is in a federally subsidized building governed by Section 8 of the United States Housing Act of 1937, 42 USC §§ 1437 et seq., and is subject to the "Section 8 Housing Assistance Payments Program for Projects with HUD [U.S Department of Housing and Urban Development] Insured and HUD Held Mortgages, 24 CFR 886, Subpart A." Petition at ¶ 6. This proceeding is predicated on a "10 Day Notice to Terminate" dated March 14, 2016, annexed to and incorporated by reference in the petition, which notified the tenant that unless he moved out of the premises by April 3, 2016 the landlord would commence summary proceedings to remove him.
In the first paragraph of its 10 Day Notice to Terminate, petitioner notified respondent that it "elects to terminate your tenancy" on the grounds that he was both (1) violating a substantial obligation of his tenancy which he failed to cure, constituting "material non-compliance" with his lease agreement, and also (2) "permitting and/or committing a nuisance" or "maliciously, or by reason of gross negligence, substantially damaging the accommodation", or engaging in conduct which was "such as to interfere substantially with the comforts and safety of other tenants, thereby creating an objectionable tenancy". The notice goes on to list the following three bases (or sub-grounds) for eviction:
A "10 Day Notice to Cure" dated February 25, 2016, also attached to the petition and incorporated therein by reference, contains allegations which are identical to those stated in the Notice to Terminate, advises the tenant that he must correct the alleged conditions by March 12, 2016, and gives him ten days from receipt of the notice within which to respond to the landlord regarding the charges.
The notice could be read narrowly to limit the three sub-grounds (denominated as "a", "b" and "c") to the second of the two initially demarcated grounds ("permitting and/or committing a nuisance" etc.). However, as discussed infra at p. 7, that second ground is not one of the four that are permitted under the applicable federal regulations, and if the three sub-grounds are to be read as strictly pertaining only to that second ground the entire proceeding would have to be dismissed for the reasons this Court dismisses that second ground. The Court takes a broader view and instead assumes that petitioner intended the three sub-grounds to pertain to both of the two initial, overarching grounds.
(a) assignment and/or sublet of the premises without the landlord's prior written permission to unauthorized occupants, identified as "John Doe" and "Jane Doe", in violation of both the lease and the Building Rules and Regulations; this ground is supported by the following list of five factual allegations:
"1. Other tenants and building employees have advised that there are several other occupants residing in the premises.
2. The unauthorized occupants have been observed coming and going from the premises with keys to the apartment, the building and the mailbox.
3. The unauthorized occupants have acknowledged that they are residing in the premises.
4. The unauthorized occupants have been observed loitering through the building causing vandalism and damaging the landlord's property on an on-going basis over the last several months.
5. You did not request nor were you granted permission to allow additional occupants to reside in the premises."
(b) failure and/or refusal to report all occupants and their income on annual and/or interim income recertification forms, specifically the failure to report the presence and income of the aforementioned "John Doe" and "Jane Doe", in violation of specific paragraphs of the tenant's Lease Agreement and the Building Rules and Regulations, resulting in the landlord's inability to properly calculate the tenant's share of the rent and the possibility that the tenant is "receiving a subsidy well in excess of what you are legally entitled to"; and
(c) creation of a nuisance in the building, in violation of specific paragraphs of the tenant's Lease Agreement and the Building Rules and Regulations, due to the unauthorized occupants' "anti-social, disruptive and dangerous behavior in and around the building which has caused a substantial disturbance to other tenants and building employees", supported by the following list of five allegations:
"1. The unauthorized occupants have been loitering throughout the hallways and stairwells of the building at all hours of the day and night.
2. The unauthorized occupants have caused loud and disturbing noises while loitering throughout the hallways and stairwells at all hours of the day and night.
3. The unauthorized occupants have been vandalizing the landlord's property in that they have been observed breaking the lobby door and causing other damage to the walls and floors throughout the apartment.
4. The unauthorized occupants have been harassing and disturbing other tenants on an on-going basis.
5. The New York City Police Department has been contacted on several occasions regarding the nuisance conduct engaged in by you and/or the unauthorized occupants residing in your apartment. The unauthorized occupants have created a serious threat to the safety and well-being of other tenants and building employees. This conduct has been on-going from at least the fall of 2015 to the present."
Respondent, represented by counsel, moves to dismiss the proceeding under CPLR 3211(a)(7) based on (A) failure to state the facts in the petition and predicate notice with the required specificity; and (B) failure to comply with HUD procedures for terminating a Section 8 tenancy due to alleged fraud. In the alternative, respondent requests permission under CPLR 3012(d) to submit a late answer. Petitioner opposes, arguing that (I) it did adequately plead its causes of action; (II) HUD procedures regarding termination of a tenancy due to fraud are irrelevant in this proceeding, as it is not based upon allegations of fraud; and (III) respondent should not be permitted to file the proposed answer, as the only defense raised in it is the meritless claim of failure to follow HUD procedures for terminating a tenancy due to fraud.
The starting point for analyzing the sufficiency of the allegations in the predicate notice is Title 24 of the Code of Federal Regulations, Part 886, Subpart A, referenced by petitioner in paragraph 6 of its petition, and Part 247, which governs "Evictions from Certain Subsidized and HUD-Owned Projects". 24 CFR § 247.4(a) contains the requirements of a termination notice, which must be in writing and which must "state the reasons for the landlord's action with enough specificity so as to enable the tenant to prepare a defense." If the notice of termination is insufficient, the case must be dismissed. For example, in Swords v. Kemp, 2005 WL 3882063 (N. D. Calif. 2005), an unlawful detainer action against a tenant living in federally subsidized housing based on allegations of various types of objectionable conduct, the court found the predicate notice to be insufficient under 24 CFR § 247.4(a) and granted the tenant's motion for judgment on the pleadings, explaining, "Without including specific details of the incidents upon which the termination is based, including the date, time and alleged victim, Defendant would be hard pressed to prepare his defense to contest the termination". See also, e.g., Swords to Plowshares v. Smith, 294 F. Supp.2d 1067 (N.D. Calif. 2002)(in an eviction proceeding against a tenant living in federally subsidized housing based on allegations of various types of objectionable conduct, court found insufficient a notice that, although it identified specific allegations of objectionable conduct, failed to identify the alleged victims or the times or dates of the incidents); Edgecomb v. Housing Authority of Town of Vernon, 824 F. Supp. 312 (D. Conn. 1993)(in an action brought by former Section 8 tenants who had been notified that their housing subsidies were to be terminated due to their having engaged in drug related criminal activity, court found insufficient a notice that merely restated the regulation and did not indicate which family member committed the proscribed acts, what the nature of the alleged crimes were or when the relevant acts were committed); Lambert Houses Redevelopment Co. v. Jobi, 43 Misc 3d 1227(A)(Civ. Ct. Bx. Co. 2013)(in a nonpayment proceeding against a project-based Section 8 tenant the court found insufficient a predicate notice which failed to include all required information about the applicable annual recertification procedures); and compare New Greenwich Gardens Assoc. LLC v. Saunders, 23 Misc 3d 521, 871 N.Y.S.2d 901 (Dist. Ct. Nassau Co. 2009)(in a holdover proceeding against a Section 8 tenant based on allegations about the presence and actions of two specific, named individuals residing with the tenant without the landlord's consent, predicate notice found to be sufficient).
24 CFR Part 247 is made applicable to buildings covered by Part 886 by 24 CFR § 886.128.
24 CFR § 247.3(a) sets forth the limited grounds upon which a landlord can seek to evict a tenant living in a covered project, and there are only four of them:
(1) Material noncompliance with the rental agreement; (2) Material failure to carry out obligations under any state landlord and tenant act;
(3) Criminal activity or alcohol abuse; Other rules and procedures a landlord must follow in connection with terminating a project-based Section 8 tenancy are found in Chapter 8 ("Termination") of HUD Handbook [*4]4350.3 REV-1, entitled "Occupancy Requirements of Subsidized Multifamily Housing Programs" (hereinafter, "HUD Handbook"), which is binding on this court. Matter of Nelson v. Roberts, 304 AD2d 20, 757 N.Y.S.2d 41 (1st Dep't 2003); Impac Associates Redevelopment Co. v. Robinson, 9 Misc 3d 1065, 805 N.Y.S.2d 253 (Civ. Ct. NY Co. 2005); Green Park Assoc. v Inman, 121 Misc 2d 204 (Civ. Ct. NY Co. 1983). The HUD Handbook advises owners that they "may only terminate tenancy in limited circumstances as prescribed by HUD regulations and the lease and must follow HUD and state/local procedures," Ch. 8, sub-sec. 8-1(B). Further, "HUD termination policies and procedures must be followed when initiating a termination, including proper notices and documentation . [and] terminations for reasons other than those permitted by HUD are prohibited." Sub-sec. 8-1(C). The requirements and procedures for terminating a tenancy "provide owners with a mechanism to ensure that a tenant is fulfilling his/her obligations under the lease [and] to evict tenants who commit fraud or fail to provide the information required by HUD to establish their eligibility and/or appropriate rent." Sub-sec. 8-12(A)("Overview").
See also Ch. 8, Sec. 3, sub-sec. 8-12(B)("owners must be in compliance with applicable federal, state and local requirements when pursuing termination of tenancy").
Handbook procedures for terminating a tenancy and notifying a tenant of such termination track the federal regulations, Ch. 8, Sec. 3, sub-secs. 8-12 and 8-13(B), including the requirement that the termination notice, "State the reasons for the action with enough detail to enable the tenant to prepare a defense", sub-sec. 8-13(B)(2)(c)(2).
The HUD Handbook lists four "allowable circumstances for terminating tenancy", which are similar (although not identical) to the four grounds for eviction listed in 24 CFR § 247.3(a) and which include "Material noncompliance with the lease", sub-sec. 8-13, comprised of the following six specific "Allowable Circumstances for Terminating Tenancy":
(1) Substantial lease violations
(2) Fraud
(3) Repeated minor violations
(4) Nonpayment of rent
(5) Failure to disclose and provide verifications of SSN(s) [Social Security Numbers]
(6) Failure to sign and submit consent forms The Handbook highlights the distinction between fraud and other lease violations, cautioning that "The owner must take care not to confuse tenant error with fraud", Ch. 8, Sec. 3, sub-sec. 8-13(A)(3)(c), and explaining that "Fraud should not be confused with tenant errors, which HUD considers unintentional program violations", Figure 8-3 ("Tenant Errors versus Fraud").
Fraud requires that the tenant "knowingly provides inaccurate or incomplete information", Ch. 8, Sec. 3, sub-sec. 8-13(A)(3); however, a similar phrase — "The tenant's knowingly providing incomplete or inaccurate information" also is listed as an example of non-fraudulent conduct that could constitute grounds to terminate a tenancy, id. at sub-sec. 8-13(A)(1)(b).
To illustrate what is covered by "Repeated minor violations", the HUD Handbook lists five examples, including, relevant herein, "Tenant keeps unauthorized occupants". Ch. 8, Sec. 3, sub-sec. 8-13(A)(4).
Chapter 8 also contains a separate Section 4 entitled "Discrepancies, Errors and Fraud" which includes "Procedures for Addressing Discrepancies and Errors", sub-sec. 8-18, and "Procedures for Addressing Fraud", sub-sec. 8-19. The Handbook requires owners to take an elaborate series of steps when they encounter possible discrepancies, errors and/or fraud, including:
(A) "investigate and research discrepancies and possible errors", sub-sec. 8-18(A)("Overview");
(B) if an error is found, "determine if the error constitutes a program violation", sub-sec. 8-18(B)("Program Violations");
(C) if the owner suspects that a tenant has inaccurately supplied or misrepresented information that affects the amount of their rent or eligibility for the housing subsidy, "investigate and document the tenant's statements and any conflicting information the owner has received," sub-sec. 8-18(C)("Investigating and Discovering the Facts"); (D) notify the tenant in writing of any suspected errors and give the tenant the opportunity, within ten days, to meet with the owner to discuss the allegations, sub-sec. 8-18(D)("Notifying and Meeting with the Tenant"); and, finally, (E) determine the outcome of the investigation, with the options of either (1) closing out the investigation if the owner "is convinced the tenant's submissions were correct", sub-sec. 8-18(E)(1);(2) determining there to have been an unintentional program violation, making the appropriate adjustment in the tenant's rent and terminating the tenancy if the tenant refuses to comply with the new payment requirements, sub-sec. 8-18(E)(2); or (3) pursuing the incident as fraud "[i]f the owner determines the tenant knowingly provided inaccurate or incomplete information, and this can be substantiated through documentation," sub-sec. 8-18(E)(3).
If the landlord decides to pursue the incident as fraud, it must follow the additional "Procedures for Addressing Fraud" found in sub-section 8-19. See, e.g., Kingsbridge Court Associates, L.P. v. Hamlette, 25 Misc 3d 1238(A), 906 N.Y.S.2d 773 (Civ. Ct. Bx. Co. 2009); Impac Associates Redevelopment Co. v. Robinson, 9 Misc 3d 1065, 805 N.Y.S.2d 253 (Civ. Ct. NY Co. 2005).
With regard to respondent's claim that petitioner failed to comply with HUD procedures for terminating a Section 8 tenancy due to fraud, while the Court need not determine this issue in light of its dismissal of the proceeding on other grounds, it is worth noting that given that petitioner has framed and chosen to pursue its claims without referencing fraud, it was not necessarily obligated to comply with HUD procedures for terminating a Section 8 tenancy due to fraud. See HUD Handbook Ch. 8, Sec. 4, sub-secs. 8-18 and 8-19; and compare Southeast Grand Street Guild HDFC v. Holland, 27 Misc 3d 809, 810, 897 N.Y.S.2d 869 (Civ. Ct. NY Co. 2010)("While the allegations in the petition may give rise to various other causes of action, by opting to pursue the claims solely on allegations of fraud, petitioner was obligated to comply with applicable HUD regulations found in the HUD Handbook").
Turning now to New York State law, the starting point is Section 741 of the Real Property Actions and Proceedings Law (RPAPL), which requires that the petition in a summary eviction proceeding "State the facts upon which the special proceeding is based." New York State courts evaluate the sufficiency of a predicate notice in a holdover eviction proceeding based on a standard of reasonableness "in view of all attendant circumstances". Oxford Towers Co., LLC v. Leites, 41 AD3d 144, 837 N.Y.S.2d 131 (1st Dep't 2007); Hughes v. Lenox Hill Hospital, 226 AD2d 4, 17, 651 N.Y.S.2d 418, 427 (1st Dep't 1996), appeal dismissed, 90 NY2d 829, 660 N.Y.S.2d 552 (1997). The notice must "provide the necessary additional information to enable the tenant respondent to frame a defense to meet the tests of reasonableness and due process." Jewish Theological Seminary of America v Fitzer, 258 AD2d 337, 338, 685 N.Y.S.2d 215 (1st Dep't 1999). An adequate notice is a required condition precedent, and if the notice of termination is insufficient, the proceeding must be dismissed. Chinatown Apts. Inc. v. Chu Cho Lam, 51 NY2d 786, 433 N.Y.S.2d 86 (1980).
The facts in the predicate notice must be pleaded with sufficient specificity so as "to discourage baseless eviction claims founded upon speculation and surmise, rather than concrete facts," London Terrace Gardens, L.P. v. Heller, 40 Misc 3d 135[A], 975 N.Y.S.2d 710(App. Term 1st Dep't 2009); prior to commencing a holdover proceeding, a landlord may be required to undertake "a more thorough facts-investigation", and not merely rely on "anticipated future discovery". 128 Second Realty LLC v. Dobrowolski, 51 Misc 3d 147[A](App. Term 1st Dep't 2016). As recently explained in the case of East Vil. Re Holdings, LLC v. McGowan, 2016 NY Slip Op. 51304(U)(Sept. 19, 2016, Hsg. Ct. J. M. Weisberg), "The combined message of London Terrace and 128 Second Realty LLC could not be clearer. A holdover summary eviction proceeding must be based on concrete facts, not speculation or surmise, as evidenced by sufficient specific factual allegations in the predicate notice. If a landlord has concrete facts to support its claims, but fails to include them in the predicate notice out of expediency or the hope of gaining some advantage, it does so at its own peril. But if a landlord does not have concrete facts to support its claims, then it must refrain from commencing litigation until after it has conducted a thorough investigation. The court is not a place to throw claims against a wall just to see what sticks." While there is no bright line rule mandating the inclusion of names, dates and specific instances of misconduct in the predicate termination notice, Pinehurst Construction Corp. v. Schlesinger, 38 AD3d 474, 833 N.Y.S.2d 428 (1st Dep't 2007), they may be required if the failure to include them would be unreasonable in light of all the attendant circumstances. 297 Lenox Realty Co. v. Babel, 19 Misc 3d 1145[A] (Civ. Ct. Kings Co. 2008). A notice containing broad allegations of anti-social and destructive behavior may be found to be too generic, conclusory and impermissibly vague, even if the notice also contains a specific factual allegation of damage to the premises. 69 E.M. v. Mejia, 49 Misc 3d 152[A](App. Term 1st Dep't 2015), citing 542 Holding v. Prince Fashions, Inc., 46 AD3d 309, 848 N.Y.S.2d 37 (1st Dep't 2007).
In addition, the predicate notice must meet fundamental due process requirements under Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011 (1970). As explained in Escalera v. New York City Housing Authority, 425 F.2d 853, 862 (2nd Cir. 1970), "[t]he purpose of requiring that notice be given to the tenant before the hearing is to insure that the tenant is adequately informed of the nature of the evidence against him so that he can effectively rebut that evidence." See also, e.g., Boykins v. Community Development Corp of Long Island, 2011 WL 1059183 (E.D.NY 2011); Edgecomb v. Housing Authority of the Town of Vernon, 824 F. Supp. 312 (D. Conn. 1993); Hempstead Vil. Hous. Assoc. v. Pitts, 41 Misc 3d 714 (Dist. Ct. Nassau Co. 2013); and see generally West Farms Estates Co., LP v. Aquino, L & T # 16965/14, NYLJ 1202759552429, at *1 (Civ. Ct. Bx. Co. May 23, 2016, Hsg. Ct. J. T. Elsner).
Turning now from the legal framework to petitioner's "10 Day Notice to Terminate", to assess its adequacy this Court has parsed its complex structure, which, to summarize, starts with two overarching grounds - (1) "violating a substantial obligation of your tenancy, constituting a material non-compliance with your Lease Agreement," and (2) "permitting and/or committing a nuisance" etc. — followed by a delineation of three sub-grounds, each described as a violation of specific provisions of the Lease Agreement and a violation of "the Building Rules and Regulations": (a) assignment and/or sublet to unauthorized occupants without permission, supported by a list of five "facts"; (b) failure to report all occupants and their income on recertifications resulting in petitioner's inability to properly calculate respondent's share of the rent and a possibly excessive subsidy; and (c) creation of a nuisance in the building due to anti-social, disruptive and dangerous behavior described in a list of five categories of conduct allegedly engaged in by the unauthorized occupants.
The only reference to respondent himself among the allegations of nuisance conduct lies in the fifth item, which uses the language "you and/or the unauthorized occupants"; however, this allegation actually contains no statement of any objectionable conduct by respondent, as is clear from the following sentence regarding a "serious threat" being created by "the unauthorized occupants", with no mention of respondent.
The first of petitioner's two broad claims, "material non-compliance with the lease," is one of the four permissible bases for eviction listed in 24 CFR § 247.3(a); however, the second, "permitting and/or committing a nuisance" etc., is not. While a prohibition on permitting or committing a nuisance may be found in various provisions of the lease between the parties, specifically paragraphs 10b(3), 10b(4), 11, 13(C), 13(e), 14 and 24 which are cited in petitioner's predicate notices, it is not one of the four grounds listed in the federal regulations and the HUD Handbook and therefore is not a stand-alone basis upon which a landlord may bring a holdover petition against a project-based Section 8 tenant. Accordingly, to the extent petitioner seeks to proceed on the nuisance allegations as a basis separate from "material noncompliance with the rental agreement", it is not permitted to do so and that element of petitioner's case is dismissed.
The court cannot state this with certainty, as neither party included a copy of the lease with any of the papers filed in this proceeding.
The next level of analysis of the predicate notice turns to the three sub-grounds which petitioner refers as (a), (b) and (c). With regard to the first of these three sub-grounds, assignment and/or sublet to unauthorized occupants without permission, four of petitioner's five supporting factual allegations describe the observed presence and actions of "unauthorized occupants" in the premises and the fifth asserts that respondent does not have permission to have such "unauthorized occupants" residing there. The notice contains no allegations that respondent transferred any part of his interest in the premises to the "unauthorized occupants", that respondent does not reside at the premises, or that he entered into any sort of agreement assigning his rights or subletting all or a portion of the premises to the alleged "unauthorized occupants".
The dictionary definitions of an assignment and a sublease are:
Assignment: "The act by which one person transfers to another, or causes to vest in that other, the whole of the right, interest, or property which he has in any realty or personalty, in possession or in action, or any share, interest, or subsidiary estate therein";Black's Law Dictionary Free Online Legal Dictionary 2nd Ed. Both an assignment and a sublet contemplate that the tenant — that is, the assignor or sublettor — and the subtenant execute an agreement setting forth the terms of the assignment or sublease and that the tenant reside somewhere other than in the premises which have been assigned or subleased; the distinction between the two types of agreement hinges on the type of reversionary interest retained by the tenant. See, e.g., Bruenn v. Cole, 165 AD2d 443, 448, 568 N.Y.S.2d 351, 353-54 (1st Dep't 1991) (noting that the common-law distinction between subletting and assignment, "turns on whether the tenant possesses the requisite animus revertendi or intention to return to the premises. Functionally, this is reflected by whether the lessee has parted with his entire interest in the leasehold, in which case the transaction is an assignment, or conveyed less than the balance of the lease, retaining a reversionary interest, in which case it constitutes a sublease"); Kunstler v. Porter, 188 Misc. 1028, 70 N.Y.S.2d 552 (App. Term 1st Dep't 1947)(court found the agreement between the tenant and undertenant to be an assignment where the tenant transferred her "entire estate in the lease without retaining a technical reversion", noting there was a presumption of assignment to the undertenant based on the fact of possession and attornment by the undertenant to the landlord); Lusk Operating Co. v. Gelardin, 186 Misc. 817, 61 N.Y.S.2d 714 (App. Term 1946)(court found the agreement between the tenant and undertenant to be a sublease where it contained "a formal technical reservation of a reversion"); Bellstell 140 East 56th St., L.L.C. v. Layton, 180 Misc 2d 25, 28, 687 N.Y.S.2d 536, 538 (Civ. Ct. NY Co. 1999)(predicate notices found to be factually sufficient because they "allege that respondent no longer resides at the subject premises and has sublet or assigned the subject premises to a named individual without the landlord's permission"); Sharp v. Feldman, 159 Misc 2d 494, 605 N.Y.S.2d 616 (Civ. Ct. NY Co. 1993)("by its nature, a sublease requires the tenant to live elsewhere during its term"); Murray Hill Mello Corp. v. Bonne Bouchee Restaurant, Inc., 113 Misc 2d 683, 449 N.Y.S.2d 870 (Civ. Ct. NY Co. 1982)(analyzing the difference between an assignment and a sublease, with the former being distinguished by the fact that the lessor retains no reversionary interest).
Sublease: "A lease by a tenant to another person of a part of the premises held by him; an under-lease".
Petitioner has failed to state a cause of action for either an illegal assignment or an illegal sublet, as both require the alleged transferor of the interest — in this case, respondent — to have entered into an agreement with the assignee or sublessee — in this case, the alleged unauthorized occupants "John Doe" and "Jane Doe" - to transfer dominion and control of a part or the whole of the premises with either an intent to return in the future (sublet) or no such intent (assignment), and petitioner has made no such allegations here. Instead, petitioner confines its allegations to matters which, if proven, might establish that respondent gave the alleged unauthorized occupants permission — a license — to reside with him in the premises, without first securing petitioner's permission as required by the applicable federal regulations. See 24 CFR § 886.124 ("Reexamination of family income and composition"); 24 CFR Part 5 ("General HUD Program Requirements"); Kingsbridge Court Associates, L.P. v. Hamlette, 25 Misc 3d 1238(A), 906 N.Y.S.2d 773 (Civ. Ct. Bx. Co. 2009). Accordingly, to the extent this proceeding is based on alleged illegal assignment or sublet, the notice is defective and the petition is dismissed.
It should also be noted that petitioner asserts no dates or other details of the alleged illegal assignment and/or sublet; as discussed below with regard to sub-grounds (b) and (c), such omissions, especially in light of the federally-mandated pre-litigation investigation, see HUD Handbook at Ch. 8, Sec. 4, sub-sec. 8-18, renders the notice inadequate to serve as a predicate to an eviction proceeding.
Petitioner's notice is also defective with regard to the second (b) and third (c) of the three sub-grounds for eviction - failure to report all occupants and their income and creation of a nuisance by the allegedly unauthorized occupants — as they lack the specificity required by federal and state law under all of the attendant circumstances. Despite the HUD Handbook's requirement that landlords undertake and document an elaborate investigation prior to terminating a tenancy and commencing a judicial eviction proceeding, petitioner's Notice to Terminate references no such investigation having taken place, which leaves the Court wondering whether it even occurred, as the notice refers to no time frames or dates of the allegedly incomplete income recertifications and instances of objectionable conduct and no indication other than "John Doe" and "Jane Doe" of the identity, income or relationship to respondent of the unauthorized occupants respondent allegedly has allowed to reside in his apartment and who allegedly have created a nuisance in the building. This is all information that petitioner should have been able to provide at least a few more details of if it had conducted the required investigation; alternatively, if petitioner did conduct the required investigation and its attempts to comply with the HUD Handbook's procedures for addressing discrepancies and errors were impeded or met with resistance by respondent, these are facts which petitioner could have included in its notice. Finally, if respondent did obtain information and then failed to include any of the details in the predicate notice "out of expediency or the hope of gaining some advantage," East Village Re Holding, LLC v. McGowan, supra, it has done so at its own peril.
More particularly with regard to the nuisance allegations, the first item of allegedly objectionable conduct - loitering throughout the hallways and stairwells - in and of itself does not describe "anti-social, disruptive and dangerous behavior" and the time frame — "at all hours of the day and night" - is so impermissibly vague and exaggerated as to defy plausibility. If it were true that "John Doe" and "Jane Doe" could be found in the building's hallways and stairwells "at all hours of the day and night", that would mean that they were never in respondent's apartment and therefore were not actually "occupants", authorized or not. The next three allegations — that the unauthorized occupants were causing "loud and disturbing noises while loitering at all hours of the day and night" (item 2), having "been observed breaking the lobby door and causing other damage to the walls and floors throughout the apartment" (item 3) and "harassing and disturbing other tenants on an on-going basis" (item 4) - all must have been observed by specific individuals and must have taken place on specific dates and times, and petitioner's Notice to Terminate provides none of these details. It is not respondent himself that petitioner accuses of engaging in these activities, and it is reasonable to expect petitioner to provide more details in order for respondent to be able to prepare for trial, especially in light of the pre-termination investigation required by federal law. The fifth item regarding involvement of the New York City Police Department does include a vague time reference — "ongoing from at least the fall of 2015 to the present" — but this language is insufficient in light of the other attendant circumstances, and respondent "would be hard pressed to prepare his defense to contest the termination" based on these incidents. Swords v. Kemp, supra. When someone contacts the NYPD, a date, time and name or, at a minimum, category (building employee, neighbor) of the person who did the contacting are easily ascertainable pieces of information, and at least some of these details should have been included in the notice for it to be deemed reasonable.
While the decision in Pinehurst Construction Corp. v. Schlesinger, supra, stands for the proposition that dates and times may not need to be alleged in every notice that precedes a holdover eviction proceeding based on objectionable conduct, the predicate notice discussed in that decision, issued post-trial, asserted alleged behavior of the tenant herself, not unknown unauthorized occupants, whom neighbors complained had "'create[d] loud banging noises' and yelled at, intimidated and verbally harassed other persons in the building,'" which allegations apparently were proven at trial, where the judge found that "largely based on witness credibility, that tenant persistently inflicted[ed] vicious retribution' against the overhead tenants for the slightest infraction of her rules' against noise by screaming and pounding [the ceiling] throughout the night,' interfering substantially with the overhead tenants' comfort, safety and ordinary use and enjoyment of their apartment." Id., 38 AD3d at 475, 833 N.Y.S.2d at 429. Here where the landlord's vague and general allegations pertain almost exclusively to the behavior of unnamed individuals other than respondent, more is needed to allow him to mount a defense and prepare for trial. Accordingly, respondent's motion to dismiss is granted and the alternative relief sought of leave to file an answer is denied as moot.
This constitutes the Decision and Order of this Court. _________________________ Diane E. Lutwak, Hsg. Ct. J. Dated: Bronx, New York October 7, 2016