Opinion
Index No. LT-1794-20
02-09-2022
Umar Estate St Joseph LLC, Petitioner v. Ruby Pacheco a/k/a Ruby Ann Garcia, Respondent
For the Petitioner Cerrato Law Firm For the Respondent Legal Services of the Hudson Valley Aisha Scholes, Esq.
Unpublished Opinion
For the Petitioner
Cerrato Law Firm
For the Respondent
Legal Services of the Hudson Valley
Aisha Scholes, Esq.
Evan Inlaw, J.
The following papers numbered 1 to 2 were read and considered on the Petitioner's motion to renew inquest on default.
Papers .....................Numbered
Notice of Motion and Affidavits Annexed .....................1
Order to Show Cause and Affidavits Annexed Affirmation/Affidavits in Opposition .....................2
Summons and Complaint
Replying Affidavits
Filed Papers
Exhibits
Memorandum of Law
Petitioner commenced the above-entitled proceeding seeking to recover possession as well as use and occupancy. The Respondent appeared on the return date and failed to appear on the adjourn dates. Petitioner thereafter moved for a default judgment. This application was denied on June 11, 2021 for Petitioner's failure to serve Respondent with notice pursuant to CPLR §3215(g)(1) and as the amount sought exceeded the amount permitted by law. See, RPL §702; CPLR §3215(b).
By motion dated October 1, 2021, Petitioner moved to renew the inquest on papers and sought a judgment of possession. Petitioner alleged that Respondent failed to appear in all but one conference before the court and failed to answer or offer an excuse for her default. Respondent, by her attorney, Legal Services of the Hudson Valley, opposed the motion on the grounds that Respondent appeared through counsel and sought a dismissal of the above matter. Petitioner did reply.
Petitioner's motion is labeled a motion to renew. CPLR §2221(e) provides that a motion for leave to renew "[s]hall be based on new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion." Here, other than annexing a copy of the default notice sent to Respondent, Petitioner fails to state any new facts nor provide a reason for its failure to attach this document on the prior application. Further, and importantly, Petitioner requests a default judgment despite the Respondent's appearance with counsel. The Petitioner's motion is accordingly denied.
The Respondent sought dismissal of the above-entitled matter in her opposition. No cross motion was served and Petitioner did not oppose the requested relief or submit a reply.
While CPLR §2215 sets forth the general rule for a party seeking relief in connection with another party's motion, is to do so by way of a cross motion, the Court may, in its discretion grant the requested relief.
First, the underlying proceeding and Respondent's motion are interrelated. Rodriguez v. County of Rockland, 43 A.D.3d 1026 (2d Dept., 2007). The petition alleged Respondent is holding over following the expiration of the lease. The motion to dismiss is based on Petitioner's failure to offer Respondent a renewal lease agreement pursuant to the Housing Stability and Tenant Protection Act of 2019 ("HSTPA").
Respondent argued that the rent registration history confirms Respondent's apartment is subject to the Emergency Tenant Protection Act ("ETPA) of 1974. Respondent further contends that as the HSTPA modified the ETPA, and as there is no allegation that the unit became decontrolled, Petitioner's failure to offer a renewal lease upon Respondent's lease expiration on October 31, 2020. violated the HSTPA.
In addition, the relief requested is clearly prominent in the Respondent's opposition papers and the Petitioner had an opportunity to submit a reply addressing the request. Tulley v. Straus, 265 A.D.2d 399, 401 (2d Dept., 1999). The relief is indicated at the beginning and end of the opposition as well as wherefore clause. The Court cannot reasonably conclude that Petitioner inadvertently overlooked the application. Finally, Respondent's application is supported and clearly articulated. Plateis v. Flax, 54 A.D.2d 813(3d Dept., 1976). As such, it is in the interest of judicial economy to consider Respondent's application.
There is no dispute that Respondent's lease was subject to the Emergency Tenant Protection Act. There is also no allegation that the unit became decontrolled at any point throughout Respondents, tenancy. Accordingly, pursuant to ETPR 2504.2, a termination of Respondents ETPA lease can only be terminated on the following grounds: a) violating a substantial obligation of the tenancy b) committing nuisance c) illegal occupation of the apartment d) using the apartment for an illegal purpose e) unreasonably denying access to the apartment f) failing to renew an expiring lease or g) violation of sublet provisions. ETPR 2504.2 (a-g). Furthermore, the Housing Stability and Tenant Protection Act of 2019 significantly amended the ETPA effective June 14, 2019. L. 2019 ch 36 (parts A-L). When Respondent's lease expired on October 31, 2020, Petitioner was required to offer her a new lease on "[t]he same terms and conditions as the expired lease." 9 NYCRR 2522.5 (b)(1); David v. New York City Conciliation & Appeals Board, 59 N.Y.2d 714 (1983).
In the present matter, Petitioner sought possession of the apartment following the service of a termination notice providing Respondent a thirty (30) day notice to vacate. Petitioner failed to cite any of the ETPR grounds acceptable for the termination of Respondent's ETPA tenancy and did not cite any ETPA regulations in the notice. A failure to serve a proper predicate notice prior to commencing a holdover proceeding is fatal to the holdover and requires dismissal. See, Westbeth Corp HDFC Inc v. Ramscale Productions Inc., 37 Misc.3d 13 (App. Term 2012). Petitioner failed to cite any of the ETPR grounds acceptable for the termination of Respondent's ETPA tenancy and did not cite any ETPA regulations in the notice. Petitioners' failure to allege good cause to terminate the lease and failure to offer a lease renewal are fatal.
For the foregoing reasons, Respondent's application is granted. The above-entitled matter is dismissed without costs.