Opinion
29938/16
08-22-2017
PCMH Crotona, L.P., Petitioner, v. Clayton Taylor, Respondent.
Appearing for the Petitioner: Novick Edelstein Lubell Reisman Wasserman & Leventhal, P.C., By: Jason K. Fuhrman, Esq. Appearing for the Respondent: The Bronx Defenders, By: Amreeta Mathai, Esq.
Appearing for the Petitioner: Novick Edelstein Lubell Reisman Wasserman & Leventhal, P.C., By: Jason K. Fuhrman, Esq. Appearing for the Respondent: The Bronx Defenders, By: Amreeta Mathai, Esq. Kimon C. Thermos, J.
Recitation, as required by C.P.L.R. §2219(a), of the papers considered in review of the instant motion: Papers/Numbered Notice of Motion, Affirmation, Memo of Law and Annexed (Ex. A-H) 1 Affirmation in Opposition and Annexed.2 Affirmation in Reply and Annexed (Ex. A) 3
Upon the foregoing cited papers, the Decision/Order on this motion is as follows:
In this summary holdover proceeding, Petitioner is seeking possession of the subject apartment on the basis that Respondent violated a substantial obligation of his tenancy by engaging in a continuing course of objectionable conduct, thereby creating a nuisance. Petitioner served a Ten Day Notice to Cure on or about April 4, 2016. A Six Day Notice of Termination was served on or about April 27, 2016. The Notice of Petition and Petition were served on or about May 25, 2016. The Petition states that Respondent took possession of the subject apartment pursuant to a lease dated June 30, 2014. In describing the regulatory status, the Petition states that the apartment is not subject to the New York City Emergency Housing Rent Law or the Rent Stabilization Law of 1969, as amended.
Petitioner is a not-for-profit entity contracted by the New York State Office of Mental Health ("OMH") to provide supportive housing to New York residents suffering with mental health issues. The New York State Department of Homeless Services ("DHS") referred Respondent to Petitioner for supportive housing after the New York State Human Resources Administration ("HRA") determined on or about April 25, 2014 that Respondent was eligible. Respondent has resided alone in the subject apartment since June 2014. Neither party submitted Respondent's lease dated June 30, 2014, any subsequent lease renewals nor the contract between Petitioner and OMH.
At the first court appearance in this matter on June 3, 2016, Petitioner and Respondent, who was self-represented at that time, entered into a stipulation, whereby Respondent agreed to refrain from the type of conduct specified in the Notice of Cure for a probationary period beginning on June 3, 2016 and ending on May 31, 2017. The stipulation provided that, if Respondent defaulted, Petitioner could seek a judgment of possession and warrant of eviction. On October 27, 2016, Petitioner filed a motion seeking to restore this matter to the court's calendar for a judgment of possession and a warrant of eviction based upon Respondent's alleged breach of the stipulation. After Respondent failed to appear on the motion return date, the motion was granted to the extent of restoring the matter to the court's calendar on December 7, 2016, with further notification to Respondent. On December 7, 2016, the matter was adjourned until January 5, 2017. On January 4, 2017, Bronx Defenders filed a motion seeking the appointment of a guardian ad litem ("GAL") for Respondent. Upon granting the motion on January 5, 2017, the Court vacated the stipulation dated June 3, 2016. Bronx Defenders filed a Notice of Appearance on behalf of Respondent on January 5, 2017. Betty Ware-Hayes was appointed as GAL for the Respondent on January 18, 2017.
Respondent, by counsel, now moves to dismiss the Petition, pursuant to CPLR §3211(a)(7), for failure to state a cause of action [Although the motion seeks dismissal pursuant to RPAPL §§741(1) and (4) for failure to state the facts upon which the proceeding is based, the motion is actually pursuant to CPLR §3211(a)(7) for failure to state a cause of action, in that Petitioner failed to comply with RPAPL §§741 (1) and (4)] and, pursuant to CPLR §3211(a)(2), for lack of subject matter jurisdiction. Alternatively, Respondent seeks leave to serve and file an Answer. Respondent argues that the Petition should be dismissed for failure to state a cause of action, since the Petition fails to comply with RPAPL §§741(1) and (4), in that it does not advise of, and allege compliance with, Petitioner's contract with OMH, the applicable OMH supportive housing guidelines and the applicable New York City Rules and Regulations, Social Service Laws and Mental Health Laws. Respondent argues that the Court lacks subject matter jurisdiction over this matter based on the same grounds.
In opposition, Petitioner argues, inter alia, that Respondent's motion should be denied, because it was served one day prior to the return date of the motion, which was also the date that this matter was scheduled for trial. Petitioner further contends that the pleadings comply with RPAPL §§741(1) and (4), in that the "factual and legal claims are sufficiently stated in the petition to satisfy the pleadings requirements of RPAPL §741." As such, the pleadings do not "implicate due process concerns." Petitioner does not dispute its contract with OMH to provide supportive housing for persons with mental health issues or that Respondent's tenancy arose because he met the requirements for supportive housing. However, Petitioner argues that although there is a regulatory agreement between it and OMH, Petitioner need not mention the agreement or allege compliance with the agreement. Instead, Respondent has the burden to prove a violation of the regulatory agreement as a defense.
CPLR §406"CPLR §406 permits service shorter than the normal CPLR requirements when a summary proceeding pursuant to RPAPL article 7 is involved." 50 E. 191st St. Assoc. v Gomez, 148 Misc 2d 560, 561 (Civ. Bronx 1990), where the Court held that CPLR §406 shortens the time for notice of pre-hearing motions, so that they may be heard at the hearing on the petition.
In light of the foregoing, Respondent's motion was timely made one day before the hearing on the petition, in accordance with CPLR §406.
CPLR §3211(a)(2)In determining whether a court has jurisdiction over the subject matter of a proceeding, the question at issue is whether the court has jurisdiction over the "type of case," not whether it has jurisdiction over "this particular case". McClelland v Robinson, 94 Misc 2d 312 (Civ. Ct. NY 1978). Where the court has jurisdiction over the subject matter of the proceeding and jurisdiction over the person of the respondent has been obtained, the proceeding is not jurisdictionally defective. Jackson v NYCHA, 88 Misc 2d 121 (App. Term 1st Dept. 1976).
The New York City Civil Court Act §110(a)(5) gives Housing Court Judges authority over "[a]ctions and proceedings under article seven-A of the real property actions and proceedings law, and all summary proceedings to recover possession of residential premises to remove tenants therefrom..." N.Y.C. Civil Court Act §110(a)(5)
Given the above, and as Respondent failed to set forth a sufficient basis to establish that this Court lacks jurisdiction over the subject matter of this proceeding, that portion of the instant motion seeking dismissal based upon lack of subject matter jurisdiction is denied.
CPLR §3211(a)(7)When considering a motion to dismiss pursuant to CPLR §3211(a)(7), the court must determine whether the pleadings state a cognizable cause of action. The Court must "afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference." EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 (2005). See also, Gorelik v. Mount Sinai Hosp. Ctr., 19 AD3d 319 (1st Dept. 2005). "The motion must be denied if, from the pleadings' four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law." 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152 (2002), quoting Polonetsky v. Better Homes Depot, 97 NY2d 46 (2001).
RPAPL §741 mandates that a petition must
"(1) State the interest of the petitioner in the premises from which removal is sought; (2) State the respondent's interest in the premises and his relationship to petitioner with regard thereto; (3) Describe the premises from which removal is sought; (4) State the facts upon which the special proceeding is based; and (5) State the relief sought. The relief may include a judgment for rent due, and for a period of occupancy during which no rent is due, for the fair value of use and occupancy of the premises if the notice of petition contains a notice that a demand for such a judgment has been made."
Thus, pursuant to RPAPL §741, where a tenancy is subject to a specific type of regulation, the Petition must set forth the premises' regulatory status, since the status may determine the scope of the parties' rights and defenses. A petition that fails to satisfy this requirement is subject to dismissal. MSG Pomp Corp. v Doe, 185 AD2d 798 (1st Dept. 1992); Villa of Forest Hills Co. v Lumberger, 128 AD2d 701 (2nd Dept. 1987); Volunteers of America-Greater New York, Inc. v Almonte, 17 Misc 3d 57 (App. Term 2nd Dept. 2007); Volunteers of America-Greater New York, Inc. v Almonte, 17 Misc 3d 57 (App. Term 2nd Dept. 2007).
While a defect of this nature may be overlooked where no prejudice results to the tenant [Coalition Houses L.P. v. Bonano, 12 Misc 3d 146A (App. Term 1st Dept. 2006)], it cannot be said here that Petitioner's failure to make the required allegation was not prejudicial to Respondent, as Petitioner knew that Respondent had a mental disability at the time that Respondent entered into a stipulation unrepresented and further failed to inform the court about Respondent's mental disability. Had the Petition alleged the existence of the contract between OMH and the Petitioner, the court would have been aware of the tenant's mental disability and his need for a GAL. Furthermore, Respondent may have defenses arising from the relevant contract.
For the reasons stated herein, this Court finds that the Petition is fatally defective, in that it does not comply with RPAPL §§741(1) or (4). The Petition fails to sufficiently state the interest of the Petitioner in accordance with RPAPL §741(1). Although the Petition states that Petitioner is the landlord/lessor and Respondent is the tenant who took possession of the premises pursuant to a lease dated June 3, 2014, the Petition fails to state that the premises is supportive housing and that Petitioner accepted DHS' referral of Respondent for supportive housing due to his mental health issues and pursuant to Petitioner's contract with OMH to provide supportive housing. In addition, the Petition fails to correctly and/or sufficiently plead the regulatory status of the premises in accordance with RPAPL §741(4). Petitioner was required to set forth in the Petition that the Respondent's tenancy was subject to Petitioner's contract with OMH, the applicable OMH supportive housing guidelines and any other the applicable New York City Rules and Regulations, Social Service Laws and Mental Health Laws. Petitioner was also required to demonstrate compliance with the relevant contract and applicable rent laws and regulations governing the tenancy. Westchester Gardens, LP v Lanclos, 43 Misc 3d 681 (Civ. Bronx 2014). Given Petitioner's failure to sufficiently state its interest in the premises and allege the relevant contract and applicable laws and regulations governing the tenancy, and its compliance with same, in the Petition, this proceeding must be dismissed. MSG Pomp Corp. v Doe, supra);Westchester Gardens, LP v Lanclos, supra.; Villa of Forest Hills Co. v Lumberger, supra.; Volunteers of America-Greater New York, Inc. v Almonte, supra.
Accordingly, that branch of Respondent's motion seeking dismissal for failure to state a cause of action pursuant to CPLR §3211(a)(7) is granted. The Petition is hereby dismissed, without prejudice.
That branch of Respondent's motion seeking leave to serve and file an Answer is denied, as moot.
The Court has considered the parties' remaining arguments and finds them to be unavailing.
This constitutes the Decision and Order of the Court. Dated: August 22, 2017 Bronx, New York ____________________________ Kimon C. Thermos, J.H.C.