Ezratty, Ezratty & Levine, Attorneys for Petitioner.
Nassau/Suffolk Law Services, Committee Inc., Attorneys for Respondent, One Helen Keller Way.
Hon. Scott Fairgrieve, DISTRICT COURT JUDGE.
The following named papers numbered 1 to 3 submitted on this Motion on November 25, 2013 papers numbered
Notice of Motion and Supporting Documents1Order to Show Cause and Supporting Documents
Opposition to Motion2
Reply Papers to Motion3
The petitioner moves for an order striking the verified answer and amended verified answer of the respondent, Cheana L. Whitfield and, pursuant to CPLR 3212, granting the petitioner summary judgment.
Petitioner has commenced this holdover summary proceeding against Cheana L. Whitfield to evict her from the premises located at 8 Old Mill Court, Unit No.C, Rockville Centre. The basis of the eviction is the criminal activity of the household member Charles Sullins.
The respondent, Cheana Whitfield, who is a Section 8 tenant, previously moved to dismiss the petition. In an order, dated September 26, 2012, the Honorable Colin F. O'Donnell denied the respondent's motion finding that: the notice to terminate was sufficient in all respects; the failure to state the respondent's Section 8 status in the petition would not warrant dismissal; and a defective verification would not warrant dismissal, but rather, that leave should be granted to serve an amended petition with an amended verification. In his order, Judge O'Donnell directed the petitioner to serve an amended petition with proper verification within thirty (30) days from the date of the order. On October 23, 2012, the petitioner served a copy of the amended notice of petition and petition on the respondent's counsel.
Summary judgment is drastic relief - - it denies one party the opportunity to go to trial. Thus, summary judgment should only be granted where there are no triable issues of fact (see Andre v Pomeroy, 35 N.Y.2d 361 ). The focus for the court is on issue finding, not issue determining (see Hantz v Fishman, 155 A.D.2d 415 [2d Dept 1989]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of a motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 ; Winegrad v NY Univ. Med. Ctr., 64 N.Y.2d 851 ). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v New York, 49 N.Y.2d 557 ).
The petitioner argues that summary judgment should be granted because on or about February 2012, Charles Sullins, a member of the respondent's household, was arrested and charged with various crimes, in violation of section 15 of the lease. In support, the petitioner submitted the affidavit of Jamie Morrison, the Executive Director for the petitioner. In his affidavit, Mr. Morrison states that he is fully familiar with the facts and circumstances of this matter. He also sets forth specific facts to show respondent Cheana Whitfield breached her lease when Charles Sullins, a household member, was arrested in connection with criminal activity. Mr. Morrison states that the respondent's lease was terminated for the safety and well-being of the other residents. As such, the petitioner has made a prima facie showing of its entitlement to judgment as a matter of law.
In opposition, the respondent argues, inter alia, that the lease was improperly terminated because the criminal activity connected with Mr. Sullin's arrest occurred prior to his residence in the subject apartment. However, the plain language of the lease does not support this argument. As such, the respondent has failed to establish a triable issue of fact.
The document, dated February 17, 2012, from the United States Attorney Eastern District of New York by Thomas M. Sullivan (Assistant U.S. Attorney) outlines the charges against Charles Sullins (see Exhibit "J" attached to the Notice of Motion of petitioner). The document indicates that Charles Sullins and Carl Perryman were arrested by agents of the FBI on ...