Appeal from an order of the City Court of Yonkers, Westchester County (Michael A. Martinelli, J.), entered June 2, 2011.
Cromwell Towers Redevelopment Co., L.P. v Blackwell
Decided on December 20, 2012
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: LaCAVA, J.P., IANNACCI and LaSALLE, JJ
The order denied tenant's motion to dismiss the petition in a holdover summary proceeding.
ORDERED that the order is reversed, without costs, and tenant's motion to dismiss the petition is granted.
In this holdover proceeding, landlord alleges that it terminated tenant's tenancy in a project-based Section 8 premises by service of a 30-day notice of termination. It is undisputed that the notice was personally delivered to tenant's 16-year-old son. While the City Court, in denying tenant's motion to dismiss the petition, held that tenant had failed to demonstrate that service was not made in compliance with CPLR 308 (2), it is the requirements of 24 CFR 247.4 (b) that govern the service of a termination notice (see Jackson Terrace Assn. v Paterson, 155 Misc 2d 556 [Nassau Dist Ct 1992]; see also Westbeth Corp. HDFC Inc. v Ramscale Prods., Inc., 37 Misc 3d 13 [App Term, 1st Dept 2012]). That regulation requires that the notice of termination be served upon an "adult," which is defined in Housing and Urban Development Handbook 4350.3, "Occupancy Requirements of Subsidized Multifamily Housing Programs," as "[a]n individual who is 18 years of age or older or a minor under the age of 18 who has been emancipated to act on his/her own behalf, including the ability to execute a contract or lease." Consequently, service of the notice of termination was defective (see 13A Carmody-Wait 2d, NY Prac § 90:35 at 454; see also Fairview Co. v Idown, 148 Misc 2d 17 [Civ Ct, Richmond County 1990]).
Accordingly, the order is reversed and tenant's motion to dismiss the petition is granted.
LaCava, J.P., Iannacci and LaSalle, JJ., concur. Decision Date: December 20, 2012
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