Opinion
Index No. L & T 306368/21
12-12-2022
Indranie PERSAIN, Petitioner, v. Khemraj PERSANE, Respondent.
Attorney for Petitioner, David S. Harris, Esq. 88-36 Sutphin Boulevard, Jamaica, NY 11435 Attorneys for Respondent, Atusa Mozaffari, Esq., Julia McNally, Esq., The Legal Aid Society, 120-46 Queens Boulevard, 3rd Floor, Kew Gardens, NY 11415
Attorney for Petitioner, David S. Harris, Esq. 88-36 Sutphin Boulevard, Jamaica, NY 11435
Attorneys for Respondent, Atusa Mozaffari, Esq., Julia McNally, Esq., The Legal Aid Society, 120-46 Queens Boulevard, 3rd Floor, Kew Gardens, NY 11415
Clinton J. Guthrie, J. PROCEDURAL HISTORY
This holdover proceeding based on a 90-Day notice was commenced in September 2021. In November 2021, respondent filed a COVID-19 hardship declaration, which stayed the proceeding pursuant to L 2021, ch 417. The case was restored to the court's calendar in October 2022, after respondent was provisionally approved for ERAP (the Emergency Rental Assistance Program). According to the court comments on NYSCEF, at a court date on October 27, 2022, respondent was directed to file an answer or motion by November 28, 2022 and the case was adjourned to December 9, 2022. On November 30, 2022, respondent, through counsel, filed the instant motion to dismiss. Prior to the December 9th court date, petitioner (also through counsel) filed opposition papers. This court heard argument on the motion on December 9, 2022 and reserved decision.
At around the same time, The Legal Aid Society filed a notice of appearance on behalf of respondent.
DISCUSSION
The court first addresses petitioner's argument that the motion should be denied because it was untimely. It is apparent that the comments recorded on NYSCEF incorporated the court's direction to file an answer or motion by November 28, 2022. The court does not condone the late filing. However, since there was no written order setting the deadlines and no apparent prejudice since petitioner's opposition papers were filed prior to the return date, the court excuses the late filing and will decide the motion on the merits. See CPLR § 2001.
Respondent's motion is made pursuant to CPLR § 3211(a)(2), which concerns lack of subject matter jurisdiction. It is a basic principle that Housing Court is "vested with subject matter jurisdiction over housing matters by statute ( NY City Civ. Ct. Act § 110 )." 170 West 85th Street Tenants Ass'n v. Cruz , 173 A.D.2d 338, 339, 569 N.Y.S.2d 705 [1st Dept. 1991] ; see also 433 West Assocs. v. Murdock , 276 A.D.2d 360, 360-361, 715 N.Y.S.2d 6 [1st Dept. 2000] ; 716 Realty, LLC v. Zadik , 38 Misc.3d 139[A], 2013 N.Y. Slip Op. 50194[U], 2013 WL 530380 [App.Term, 2d Dept., 2d, 11th & 13th Jud Dist. 2013]. The crux of respondent's argument is that petitioner (who is respondent's sibling) cannot bring a proceeding against him as a licensee pursuant to RPAPL § 713 since he is petitioner's family member and (according to the statements in his affidavit) he helped finance the purchase and ongoing mortgage payments for the subject premises, where he lives with his mother.
Contrary to the first part of respondent's argument, this is not a licensee proceeding. Annexed to the petition is a 90-day notice issued pursuant to Real Property Law (RPL) § 226-c. Both the 90-Day notice and petition allege that respondent is a tenant pursuant to a month-to-month rental agreement. There is no statement that respondent is a licensee or that he has any other status corresponding with a ground set out in RPAPL § 713. Therefore, the court does not find relevant the line of cases exemplified by Heckman v. Heckman , 55 Misc.3d 86, 50 N.Y.S.3d 793 [App.Term, 2d Dept., 9th & 10th Jud Dist. 2017], which held that there is no general "familial exception" to the maintenance of summary proceedings brought pursuant to RPAPL § 713. More germane is the case law holding that there is no per se familial exception to the maintenance of a summary holdover proceeding based on the termination of a tenancy or other rental agreement. See Pugliese v. Pugliese , 51 Misc.3d 140[A], 2016 N.Y. Slip Op. 50614[U], 2016 WL 1590776 [App.Term, 2d Dept., 2d, 11th & 13th Jud Dist. 2016] ; see also Tausik v. Tausik , 11 A.D.2d 144, 202 N.Y.S.2d 82 [1st Dept. 1960], affd 9 N.Y.2d 664, 212 N.Y.S.2d 76, 173 N.E.2d 51 [1961] ; Readick v. Green , 73 Misc.3d 132[A], 2021 N.Y. Slip Op. 50973[U], 2021 WL 4806755 [App.Term, 1st Dept. 2021].
In Pugliese , the Appellate Term held that there was no familial exception to the maintenance of the proceeding but that petitioner had failed to establish the existence of a rental agreement with respondent, who was petitioner's daughter, at trial.
The narrow exception to the maintenance of summary proceedings against family members relates to those relationships where there is a "support" obligation, whether to a spouse or to a minor child. See Rosenstiel v. Rosenstiel , 20 A.D.2d 71, 76-77, 245 N.Y.S.2d 395 [1st Dept. 1963] ; Heckman , 55 Misc.3d at 88, 50 N.Y.S.3d 793. There is no allegation in the motion at bar that any such obligation of ongoing support exists between petitioner and respondent. To the extent that respondent asserts that he may have some equitable defense (cf. Nissequogue Boat Club v. State , 14 A.D.3d 542, 544, 789 N.Y.S.2d 71 [2d Dept. 2005] ) based on his alleged financial contributions to the purchase of the property and mortgage payments, there is no proof of any such contributions annexed to the motion. Moreover, petitioner, in her affidavit in opposition, disputes the contributions and states that she was the sole purchaser of the property (and annexes the stock certificate of the subject cooperative apartment, which solely names her as the holder of the shares). She also states in her affidavit that respondent only paid her rent, not contributions to the maintenance, for one year after he moved in (in 2016). Ultimately, these factual disputes must be resolved at trial. However, respondent has not established that this court lacks subject matter over the instant proceeding. Accordingly, the motion to dismiss is denied.
The court will grant respondent's request, made in the alternative, to interpose an answer. However, the court grants this request pursuant to CPLR § 404(a), which applies to summary proceedings, rather than CPLR § 3012(d). See Matter of Cardinale v. NYC Dept. of Education , 204 A.D.3d 994, 997, 168 N.Y.S.3d 90 [2d Dept. 2022]. Respondent shall file an answer on NYSCEF no later than December 23, 2022.
CONCLUSION
Respondent's motion to dismiss is denied for the reasons set out herein. Respondent's request to interpose an answer is granted to the extent stated herein.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.