Opinion
V24-84-11
11-15-2011
The Tuckahoe Housing Authority, Petitioner (Landlord), v. Thomas Logan & Anne Gunther, Respondents (Tenant).
Nicholas Leo., Jr., Esq. for Petitioner. Melinda Bellus, Esq. for Respondents.
Nicholas Leo., Jr., Esq. for Petitioner.
Melinda Bellus, Esq. for Respondents.
David Otis Fuller Jr., J.
By 30-day notice dated June 8, 2011, the petitioner, by its attorney, Nicholas Leo, Jr., alleged that the respondents were in violation of their lease with the petitionerbecause they provided accommodations to one John Gunther as a border or lodger, contrary to the terms of the lease. The notice advised the respondents of their right to an administrative hearing on or before June 30, 2011 and declared that the tenancy was vacated as of July 31, 2011.
After the administrative hearing, the hearing officer, on September 1, 2011, found that the respondents provided accommodations for John Gunther as a boarder or lodger from 2008 to date, that in so doing they were in "serious violation" of the lease, that the petitioner properly terminated the lease and that the respondents should be required to vacate their apartment.
By petition dated September 12, 2011, the petitioner brought a hold-over proceeding against the respondents, returnable October 4, 2011, for violating the lease, and requested final judgment awarding possession of the premises to the petitioner, the issuance of a warrant to remove the respondents from possession of the premises, a judgment of fair value of use and occupancy, reasonable attorney's fee and the costs and disbursement of the proceeding.
By motion dated October 3, 2011, returnable on October 4, 2011, the respondents sought dismissal of the petition on the following grounds:
1. lack of personal jurisdiction over the respondents because no affidavit
of service of the petition had been filed with the court,
2. failure to state a cause of action; and
3. invalidity of the administrative hearing.
If the motion is denied, the respondents seek permission to serve and file an answer and to have a "trial de novo".
The respondents have withdrawn ground number one inasmuch as an affidavit of service of the petition had in fact been filed with the court.
In support of their second ground, the respondents state that the 30-day notice was improperly served because it was signed by the attorney for the petitioner rather than the petitioner itself, citing Siegel v. Kentucky Chicken, 108 AD2d 218, aff'd, 67 NY2d 792.That case holds that when a lease requires that a landlord sign a particular document, an attorney cannot substitute for the landlord in signing the document. No such lease provision is alleged here. Absent such a provision, outside New York City there is no requirement that the notification specifically be signed by the landlord, only that notice be given, as it was here. Real Property Law sect. 232-b.
The respondents also state that the petition did not comply with RPAPL sect. 741 (3) and (4), because it does not describe the premises from which removal is sought or the facts upon which the special proceeding is based. The 30-day petition attached to and made part of the petition states that the premises are 31 Midland Place, 3D, Tuckahoe, NY, and that the respondents are violating the lease because they are providing accommodations for a boarder or lodger to one John Gunther.
Finally, the respondents claim that the petitioner is not in compliance with the requirement of Section 8 Housing, but the housing here is not Section 8 Housing. Accordingly, the second ground for dismissal is not supported.
As for the third ground, there is nothing in the Uniform Justice Court Act or in any other part of the law which gives this court the authority to review a decision that results from an administrative hearing. Accordingly that defense is denied as well.
The respondents, in their reply, raise two other points; that the violation has been "cured" because John Gunther "no longer stays as an overnight guest at his brother's apartment," [see RPAPL sect. 753 (4)], and that an eviction is disproportionate to the offense, especially given the respondents' positions as two disabled seniors, mother and son, on a limited income, citing Sicardo v. Smith, 49 AD3d 761,762, where the Second
Department found in a Section 8 proceeding that despite the lease violation of the former husband living with his ex-wife and children, the penalty of eviction "was so disproportionate to the offense as to be shocking to one's sense of fairness." Because these issues have not been raised or briefed before, they are put down for a hearing on Tuesday, December 6, 2011, any briefs to be submitted by December 2, 2011.
Subject to the foregoing paragraph, the motion to dismiss in denied.
____________________________
DAVID OTIS FULLER, JR.
VILLAGE JUSTICE