Opinion
No. LT-308377-22/QU
03-04-2024
Tonko Pericic; Nedeljka Pericic, Petitioner(s), v. Renee Arthur; "John" "Doe"; "Jane" "Doe", Respondent(s).
Balsamo, Rosenblatt & Hall, PC Attorneys for Petitioners The Legal Aid Society Attorneys for Respondent
Balsamo, Rosenblatt & Hall, PC
Attorneys for Petitioners
The Legal Aid Society
Attorneys for Respondent
Enedina Pilar Sanchez, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed
Answering Affidavits/ Affirmations
Reply Affidavits/ Affirmations
Memoranda of Law
Other
Upon the foregoing cited papers, the Decision/ Order on the (motion / order to show cause) is (granted /denied) for the following reason(s):
Motion Sequence No. 1- NYSCEF Doc. No. 1-20
This is a holdover summary eviction proceeding predicated on a 10-day notice to quit. The petition alleges that respondent is in possession as a licensee of the former tenant of record, April Zora, who passed away. The petition states that any license previously granted has been revoked.
The subject premises described as 73-21 71st Street, Apartment 2A, Glendale, New York 11385 are governed by the Rent Stabilization Law. The proceeding was commenced by "nail and mail" service as permitted pursuant to RPAPL§735.
Respondent retained counsel, The Legal Aid Society. Respondent has interposed an Answer comprised of six Affirmative Defenses and one Counterclaim.
The proceeding was adjourned for motion practice. Respondent filed a motion to dismiss based on the First Affirmative Defense and seeks dismissal of this proceeding.
Motion to Dismiss
Respondent's motion to dismiss is premised upon an Administrative Order 268/20 issued by the Chief Administrative Judge on November 17, 2020. (Hereinafter AO/268/20) AO/268-20 was issued during the height of the public health crisis created by the COVID-19 pandemic. It directed that a petition in an eviction proceeding filed pursuant to Article 7 of the Real Property Actions and Proceedings Law (RPAPL), shall include a Notice to Respondent "printed on colored paper to enhance its distinctiveness and effectiveness." The Notice to Respondent would provide that during the coronavirus emergency, you [the respondent] may be entitled by law to special defenses and protections relating to evictions and to contact your attorney immediately and if you do not have an attorney to call a number or visit www.nycourts.gov/evictions/nyc/. The Notice to Respondent referenced in AO/268/20 was to be given in both English and Spanish.
Respondent argues that the Notice of Petition and Petition that were served and filed to NYSCEF are both devoid of the notice as required by AO/268/20.
It is further argued that petitioner's failure to comply with the notice requirement contained in AO/268/20 requires dismissal of this case. Movant relies upon Olaitan et al v. Wiley et al Index No. LT-300058-20/RI. On May 21, 2021 the Administrative Judge of the Civil Court of the City of New York, upon review of the files, sua sponte, dismissed the summary proceedings based upon petitioner's failure to comply with AO/268/20's notice requirement.
Petitioner counters that absent prejudice to the respondent, this court is empowered to permit a mistake, omission, defect, or irregularity to be corrected. CPLR§2001. Petitioner concedes that the Notice to Respondent required as per AO/268/20 was not given. It argues that the court should disregard the failure to serve the AO/268/20 notice and its non-compliance with AO/268/20 does not render the petition, the notice of petition, or the predicate notice defective. Whether the predicate notice, petition and notice of petition are defective are questions under Article 7 RPAPL and not AO/268/20. Moreover, petitioner argues that the intended goal of AO/268/20 has been realized since respondent secured access to counsel.
Discussion and Conclusion
There is no dispute that petitioner did not comply with the notice requirement of AO/268/20. It was issued consistent with Executive Order of the Governor, which was Executive Order 202.67, dated November 3, 2020 and it prompted the issuance of AO/268/20.
While multiple crisis created by the COVID-19 pandemic have passed, there are now new and different conditions to be addressed. The pandemic and its aftermath continue to vex daily life, but in a different way. To the extent that AO/268/20 is still in effect, it continues to be binding. The eviction is potentially just as detrimental to the litigant as it was before and during the pandemic, and the color paper notice stating that a litigant facing an eviction can call or reach a court website may be beneficial to both sides. Here, however, respondent has obtained counsel and an intended purpose of the notice has been fulfilled. The notice requirement of AO/268/20 continues to be followed as it is seen in the many summary evictions viewed by the court.
Nevertheless, if the objective of AO/268/20 was to address a crisis that has now been ameliorated, may the court weigh petitioner's argument and not dismiss case notwithstanding that AO/268/20 does not appear to have been clearly rescinded or annulled?
While a summary proceeding is a statutory created proceeding and requires strict compliance with the statutory framework, the statutory framework is not challenged or compromised by the the motion presented to the court. Petitioner is still required to show a proper predicate notice and establish its prima facie case. Respondent would then have an opportunity to show her defenses and claim for succession to the Rent Stabilized Lease as a family member of the prior tenant of record. Respondent has also raised challenges to the predicate notice. The affirmative defenses and counterclaim for a lease in respondent's name are not impacted, diminished or compromises by the AO/268/20 notice that petitioner did not provide. Under these circumstances and as the parties are each represented by counsel, the statutory mandate continues intact.
In the words of Chief Judge Rowan Wilson, at the State of the Judiciary, the court should focus on arriving "at the best solution for each individual situation." State of the Judiciary at the Court of Appeals, NYLJ February 28, 2024, Page 1.
In this individual situation, upon considering the arguments and facts presented, the motion to dismiss based upon the missing AO/268/20 notice is denied. This decision should not, in any manner, be construed as leave to disregard the notice requirement of AO/268/20, which until fully rescinded are in full force and effect. Moreover, the notice requirement pursuant to AO/268/20 is not burdensome or difficult to follow.
At the time this proceeding was commenced, on or about July 28, 2022, there were varied Executive Orders in place, and the circumstances have changed over the last year. The emergencies we faced during the pandemic are now different from the challenges we must address in the adjudication of a summary eviction proceeding.
Accordingly, it is, ORDERED that the motion is denied, and the matter will appear on the Part A calendar on April 29, 2024 at 9:30 am for all purposes.
This Decision/Order will be filed to NYSCEF.
This constitutes the Decision/Order of the court.
SO ORDERED.