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Inc. v. Kiselgof

Other Lower Courts

November 27, 2007

Trump Village Section 3, Inc., Petitioner,
v.
Ella Kiselgof, Respondent

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Anthony J. Fiorella, J.

Petitioner commenced this holdover proceeding seeking possession of Apartment 7E at 2935 West 5th Street. The premises are a "Mitchell Lama" moderate income housing cooperative subject to Article 2 of the Private Housing Finance law. As a " Mitchell Lama" cooperative the premises are subject to the rules and regulations promulgated by DHCR. Petitioner obtained a Certificate of No Objection from DHCR allowing it to commence eviction proceedings against the respondent based on breach of the rules and regulations governing Mitchell Lama cooperatives. Petitioner now moves for summary judgment on the grounds that the certificate of eviction issued by the DHCR is res judicata in this proceeding. Respondent just recently retained new counsel in this proceeding and opposes the motion and submits a late answer.

Procedural History

In September 2001 Petitioner asked DHCR to issue a " Certificate of No Objection" allowing Trump Village to commence eviction proceedings against the respondent on various violations of the regulations regarding waiting lists and eligibility to occupy the premises. On June 4, 2002 DHCR held a hearing concerning Respondent's unauthorized occupancy of the premises. It should be noted that Respondent was represented by counsel during the administrative hearing. While the hearing officer did not find that Respondent committed any overt fraud to obtain the apartment or would have otherwise have been financially unqualified for occupancy of the premises, the hearing officer did find that Respondent's name never appeared on the DHCR mandated waiting list, and her application for the apartment was never approved by DHCR as required by the regulations. The hearing officer found respondent's testimony vague and contradictory. No corroborative testimony from her family was elicited, although they were present at the hearing. Accordingly on October 16, 2002 DHCR issued a "certificate of no objection" authorizing Petitioner to commence a holdover proceeding to obtain possession. In March 2003 Petitioner commenced this holdover proceeding seeking possession of the premises. The matter was subsequently marked off calendar pending Respondent's amended Article 78 that was ultimately transferred to the Appellate Division 2nd Dept.

By decision dated October 31,2005 the Appellate Division affirmed DHCR's findings and dismissed Respondents appeal. The Appellate Division found that there was substantial evidence in the record to support DHCR's determination. It denied the tenant's claim of equitable estoppel, as it cannot be raised against a government agency. The decision also dismissed the tenants's claim of violation of due process as the allegations were reasonably specific and sufficient to apprise her of the charges against her and allow her to prepare a defense. This holdover proceeding was restored to the court calendar in 2007 and adjourned several times in contemplation of settlement. Petitioner moved for summary judgment. Respondent opposes the motion and attempts to submit an answer.

Discussion

Petitioner's motion for summary judgment is simply that the DHCR decision and appeal thereof constitute res judicata and Petitioner is entitled to possession of the premises. Respondent opposes the motion on several grounds. Firstly, Respondent claims that a motion for summary judgment can be made only after issue is joined, and that since Respondent has only recently filed a written answer Petitioner's motion is premature. The Court disagrees. In a holdover proceeding, the time to answer the petition is at the time the petition is to be heard. RPAPL 743. Respondent answered on the first court date of March 7, 2003 or at the latest on April 2, 2003 when the matter was set down for trial.

Respondent also claims that Petitioner failed to attach all the pleadings to the motion for summary judgment. While Respondent's copy may be missing the pleadings, a perusal of the Court file shows that the notice of Petition, Petition and termination notice is attached to Petitioner's motion as exhibit 2.

Respondent further challenges the service of the Notice of Termination and Petition and Petition. At no point does the Court file show that the matter was ever marked for traverse, only trial. The Court finds that Respondent has waived her right to raise service issues four years later.

Respondent also challenges the notice of termination as vague and insufficient. The Court disagrees. The notice of termination clearly refers to and tracks the language of the Certificate of no Objection issued by the DHCR, a copy of which was attached to the termination notice.

Respondent further claims that Petitioner cannot proceed without obtaining a " certificate of eviction". However, certificates of eviction are issued by HPD in City supervised Mitchell- Lama housing. ( 28 RCNY 3.18. (a)). The subject premises in this case is a state supervised Mitchell Lama building governed by DCHR which issues certificates of no objection ( NYCRR 1727-5.3(A).)

Respondent contends that the authorization and execution of the notice of termination is insufficient in that it fails to notify Respondent that the signatory had authority to sign on behalf of the Landlord and fails to notify Respondent who she is. Barbara Escobar, the registered managing agent signed the notice of termination. Barbara Escobar signed the occupancy agreement with respondent dated Nov. 1, 2000. Barabara Escobar testified at the ...


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