Opinion
2930–17
03-01-2018
WESTHAB, INC., Petitioner, v. Robert ALSTON, Respondent.
Arthur Mariano, Esq., Gutman, Mintz, Baker & Sonnenfeldt, LLP, 813 Jericho Turnpike, New Hyde Park, New York 11040, Attorneys for Petitioner. Alexander J. Brandes, Esq., Legal Services of the Hudson Valley, 90 Maple Avenue, White Plains, New York 10601, Attorneys for Respondent.
Arthur Mariano, Esq., Gutman, Mintz, Baker & Sonnenfeldt, LLP, 813 Jericho Turnpike, New Hyde Park, New York 11040, Attorneys for Petitioner.
Alexander J. Brandes, Esq., Legal Services of the Hudson Valley, 90 Maple Avenue, White Plains, New York 10601, Attorneys for Respondent.
Adam Seiden, J.
Petitioner commenced this licensee holdover proceeding in October 2017 seeking to recover the premises located at 156 South 1st Avenue, Apt. 10–N, Mount Vernon, New York. The subject tenancy is a Shelter Plus Care program governed by federal regulations 24 C.F.R. §§ 582.1 – 582.410.
Respondent now moves to dismiss the petition on the grounds that 1) the predicate notice on which termination of the tenancy is based was not included in the pleadings, 2) the petition fails to allege that respondent was properly served with a predicate notice, and 3) the petition fails to state a cause of action because court records establish that respondent's tenancy was not terminated in the manner plead by petitioner. In the alternative, respondent seeks an order compelling the petitioner to produce all documentary evidence in its possession concerning respondent's tenancy and the Shelter Plus Care housing subsidy program.
Petitioner opposes the motion.
The subject apartment is owned by 156 S. First Ave LLC. Petitioner is the tenant of 156 South First Avenue and is the recipient a Shelter Plus Care housing subsidy grant from HUD. Respondent is a participant in the Shelter Plus Care program. Respondent's counsel, Alexander J. Brandes, maintains that petitioner subleases the property to respondent through a federally regulated Shelter Plus Care program, pursuant to a Rental Assistance Participant Agreement ("RAP" Agreement). He states that the instant petition alleges that respondent's subsidy and RAP agreement were terminated by issuance of a 30 Day Termination Notice effective January 8, 2016. Though the petition alleges that a copy of a 30 Day Termination Notice is attached to the petition, no such copy was included with the petition. Counsel states that service on respondent of the claimed 30 Day Termination Notice is not alleged in the petition in anyway. Counsel further argues that the petition includes a 10 Day Notice to Quit, allegedly issued in September 2017, however does not include the affidavit of service for said notice. He states that petitioner has merely attached an affidavit of service of a Notice to Terminate. Accordingly, respondent argues that petitioner has failed to plead that it properly terminated respondent's subsidy. Counsel further argues that the petition offers no allegation that the Shelter Plus Care subsidy's due process requirements of 24 C.F.R. 582.320(b) were complied with or that respondent's subsidy was properly terminated. He states that per the statutory provisions, respondent cannot be evicted from his apartment unless and until he is terminated from the subsidy program. Counsel argues that the pleadings allege that respondent's subsidy was terminated effective January 8, 2016. He maintains, however, that since that time, but prior to the initiation of the instant proceeding, petitioner has continued respondent's supportive services, continued to accept rent payments, and calculate respondent's rent according to his income. Also, after January 8, 2016, petitioner has alleged, in a prior proceeding, that it served a 10 Day Notice to Cure, dated August 5, 2016, and 30 Day Termination Notice, dated August 25, 2016 on respondent. Those predicate notices served as the basis for a prior holdover proceeding (# 2885–16) commenced by petitioner against respondent. The 10 Day Notice to Cure, dated August 5, 2016, provides in pertinent part, "PLEASE TAKE FURTHER NOTICE , that unless you cure said violation by August 22, 2016 your Landlord shall terminate your Participant Agreement." The 30 Day Notice to Terminate, dated August 25, 2016, provides in pertinent part ... "PLEASE TAKE NOTICE, that your landlord elects to terminate your tenancy on the grounds that you are violating a substantial obligation of your Participant agreement, .... unless you remove from the above premises on September 30, 2016 the date on which your tenancy terminated, the Landlord will commence summary proceedings...." Respondent's counsel argues that if petitioner wanted to claim that respondent's subsidy had been terminated effective January 8, 2016, it was required to make that argument at or before the time of its filing of the prior holdover proceeding and should now be prohibited from splitting of a cause of action. Accordingly counsel argues that petitioner has failed to plead that it properly terminated respondent's subsidy and thus the petition should be dismissed for lack of subject matter jurisdiction. Respondent also seeks to compel petitioner to provide discovery in the event this motion to dismiss is denied by the Court.
The petitioner opposes the motion. Petitioner's counsel, Arthur Mariano, states this licensee holdover proceeding was commenced after service of a 10 Day Notice to Quit pursuant to RPAPL § 713(7). Copies of the petition, 10 Day Notice to Quit and affidavits of service are attached to petitioner's opposition papers as Exhibit 1. Mr. Mariano states that the parties executed a written "participant agreement" for the residential premises located at 156 South 1st Avenue, Apt. 10–N pursuant to the Shelter Care Plus Program. Petitioner argues that the respondent, as a "participant", has violated a substantial obligation of his tenancy and failed to cure the breach within 10 days after being served. Letters dated October 20, 2015, November 21, 2015 were sent to respondent advising him of the breaches of the agreement. He states that respondent failed to cure and was then provided with a letter dated December 9, 2015 notifying him that his rental agreement was being terminated and that said letter served as his 30 day notice to vacate the unit by January 8, 2016. A copy of the December 9, 2015 letter is attached with the Petitioner's Opposition papers as Exhibit 5. Counsel argues that since that time, petitioner has been actively seeking to evict the respondent. By Decision and Order dated May 19, 2017, a prior holdover proceeding was dismissed by this Court for a defective petition. Mr. Mariano states that petitioner then commenced this instant action. Counsel argues that respondent himself has failed to rebut any allegations and failure to include an affidavit of the respondent renders the application probatively valueless. Counsel argues that the pleading defect's alleged by respondent's counsel has no bearing on the subject matter jurisdiction of this Court. Counsel argues that petitioner properly commenced the action after service of the 10–Day Notice to Quit. He argues that the parties' agreement expressly states that there is no landlord/tenant relationship between the parties and that commencement of a license holdover proceeding is expressly authorized under the agreement. Counsel argues that the rental agreement has not been renewed since its expiration on July 31, 2016. He maintains that the petitioner complied with the termination requirements of the Shelter Care Plus Program which require participants to provide, 1) "Written notice to the participant containing a clear statement of the reasons for termination; 2) a review of the decision, in which the participant is given the opportunity to present written or oral objections before a person other than the person who made or approved the termination decision; and 3) prompt written notice of the final decision to the participant." Counsel states that due to computer error, the affidavit of service of the Notice to Quit that was annexed to the petition contained a typographical error in that it referred to the Notice to Quit as a Notice to Terminate. As a result, "Notice to Terminate" was printed on the affidavit of service rather than "Notice to Quit". Counsel maintains that per office records, the 10–Day Notice to Quit was served upon the respondent on September 28, 2017 via conspicuous place service, as set forth in the affidavit of service attached to the petition. Counsel argues that such non-prejudicial error on the affidavit of service can be corrected pursuant to CPLR 2001 and can be cured nunc pro tunc . Petitioner's counsel further argues that respondent has failed to establish ample need for discovery and is in possession of all the necessary information necessary to defend in this proceeding.
In reply, respondent argues that petitioner's opposition papers fail to address the failure to include a termination notice with the pleadings and fails to allege respondent was ever served. Moreover, respondent's counsel argues that petitioner has failed to move to amend the pleadings. Instead, petitioner for the first time attaches a notice of termination to the opposition papers. Counsel argues that since the termination notice was not attached to the petition, the petition remains defective. Respondent's counsel maintains that petitioner has ignored the salient facts. The prior holdover proceeding was commenced 10 months after the December 2015 Notice of Termination relied upon in this proceeding. Moreover petitioner served a Notice to Cure on respondent in August 2016, thereby demonstrating that the parties' agreement was not terminated in January 2016 as petitioner alleges in the current petition.
RPAPL § 713 (7) provides that a licensee holdover proceeding may be maintained after a 10 Day Notice to Quit has been served upon the respondent in the manner prescribed in RPAPL § 735, upon the following grounds: "He is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property." It is well-established that a licensee is "one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, nonassignable privilege from the owner, without possessing any interest in the property, and who becomes a trespasser thereon upon revocation of the permission of the privilege" ( Rosenstiel v. Rosenstiel , 20 AD2d 71, 76, 245 NYS2d 395, 400–01 (1st Dep't 1963) ). The statute omits any specific requirements regarding the content of the 10 Day Notice to Quit ( Washington Mutual Bank, F.A. v. Hanspal , 856 NYS 2d 27 (App Term, 9th & 10th Jud. Dists. 2007) ). However, the inclusion of incorrect or incomplete information, such as the omission of facts upon which the proceeding is based or failing to properly define the type of occupancy, may render the Notice to Quit defective and the proceeding dismissed ( City of New York v. Bullock , 606 NYS2d 552, 554 (NY Civ. Ct. 1993) (predicate notice identifying the occupant alternatively as a licensee or squatter was defective); aff'd , 630 NYS2d 652 (App. Term. 2d., 11th & 13th Jud. Dists. 1995) ). The petitioner should attach a copy of the predicate notice and proof of service to the petition, but the failure to do so is not a jurisdictional defect ( Century Paramount Hotel v. Rock Land Corp. , 68 Misc 2d 603 (Civ Ct. New York Co. 1971) ).
RPAPL § 741 provides that a petition must state among other things, the interest of the tenant and the facts upon which the proceeding is based. The tenant is entitled to a concise statement of the ultimate facts upon which the proceeding is based ( Cintron v. Pandis , 34 Misc 3d 152 (A) (2d Dept 2012) (citing Giannini v. Stuart , 6 AD2d 418 (1958). "In a licensee summary proceeding, an occupant can establish a meritorious defense by make a showing, among other things, that his license has not been terminated ( Starrett City, Inc. v. Smith , 25 Misc 3d 42, 44 (2d Dept. 2009) ). In the instant case, the RAP agreement attached to the respondent's papers as Exhibit 1, provides that the lease began on August 1, 2015 and ended on July 31, 2016. Paragraph 19 of the RAP agreement provides in pertinent part that the "RA Program may elect to commence legal proceedings to evict the resident pursuant to Section Seven Hundred Thirteen of the Real Property Actions and Proceedings Act (Grounds where no Landlord/Tenant relationship exist)." Accordingly, petitioner commenced this licensee holdover proceeding seeking to regain possession of the premises in October 2017. Paragraph four of the petition states that a 10 Day Notice to Quit was served on the respondent on or about September 28, 2017, requiring respondent to quit the premises ten days after service. A copy of the 10 Day Notice to Quit is attached to the petition, as Exhibit 1, which provided that respondent surrender the premises on or before October 16, 2017. The notice provides that the RAP agreement was terminated by the sponsor effective January 8, 2016 after service of a 30 Day Notice to Terminate and two 10 Day Notices to Cure, dated October 20, 2015 and November 21, 2015. The Court finds, however, that the claim by petitioner that the RAP agreement terminated on January 8, 2016 is wholly inaccurate in that it is belied by court records and papers submitted by respondent. After January 8, 2016, petitioner alleged that it served a 10 Day Notice to Cure, dated August 5, 2016 on respondent. Petitioner also alleged in the prior holdover proceeding that a 30 Day Notice to Terminate was served on respondent on August 25, 2016. The termination notice advised him that the RAP agreement would terminate effective September 30, 2016. Those predicate notices were attached to the petition in the prior holdover proceeding, which was ultimately dismissed by the Court.That petitioner fails to address these notices in its opposition papers to this motion to dismiss is quite telling. When petitioner served a Notice to Cure and Notice of Termination after allegedly terminating the tenancy on January 8, 2016, it effectively demonstrated to respondent that the RAP agreement had not been terminated on January 8, 2016, but was still in effect.
Accordingly, for the foregoing reasons, the Court finds that the10 Day Notice to Quit and Petition are jurisdictionally defective and they are not amendable. In light of the foregoing, the remaining issues need not be addressed.
Accordingly, the motion to dismiss is granted.
This constitutes the Decision and Order of this Court.
The court considered the following papers on this motion: Notice of Motion to Dismiss or to Produce of Compel Discover dated November 15, 2017; Affirmation in support; Exhibit A–J. Affirmation in Opposition dated December 11, 2017; Exhibit 1–5. Reply Affirmation dated December 13, 2017.