Civil Court of the City of New York, Bronx County
Kucker & Bruh, LLP
Javier E. Vargas, J.
Notice of Motion, Affirmation & Exhibits Annexed...1
Notice of Cross Motion, Affirmation & Exhibits Annexed...2
Affirmation in Opposition & Exhibits Annexed3
Notice of Sur-Cross Motion, Affirmation & Exhibits Annexed..4
Upon the foregoing papers and for the following reasons, the motion and sur-cross motion by Petitioner Westchester Gardens, L.P. ("Landlord") for, inter alia, an order dismissing certain affirmative defenses, are denied; and the cross motion by Respondent Christie Lanclos ("Tenant"), to dismiss the instant nuisance holdover proceeding, is granted, and the proceeding is hereby dismissed.
Pursuant to a lease agreement and renewal commencing December 15, 2011 and expiring November 2013, Tenant has resided in the subject federally subsidized Housing and Urban Development ("HUD") Building, known as 1015 Fox Street, Apt. 502, in the Bronx, New York, owned by Landlord and managed by Palladia, Inc., a non-profit organization, which receives funding under the federal Shelterপ Program, and provides housing for homeless persons with disabilities, chronic substance abuse and/or AIDS and related diseases. Tenant qualified for this Program because she had previously resided "in transitional or supportive housing for homeless persons originating for the streets or emergency shelter, " as evidenced by her HUD Homeless Status Certification. Tenant currently resides there with her two minor children and apparently with her boyfriend, Jonathan Espinal.
On January 31, 2013, Landlord served upon Tenant a Ten-Day Notice of Termination of her tenancy alleging that certain conduct by her and Mr. Espinal constituted a chronic nuisance and was in violation of her lease agreement, the Shelterপ Program and its House Rules Rider, and asking for her surrender of the property on or before March 16, 2013. Specifically, Landlord alleged several dates of loud and violent domestic disputes between Tenant and Mr. Espinal almost on a monthly basis between 2011 and 2012, disrupting other tenants' quiet enjoyment of their apartments, requiring repeated police intervention, resulting in three arrests of Espinal and the issuance of an Order of Protection against him in favor of a neighbor in November 2012. Relevantly, Landlord described the building regulatory status in the Notice of Termination as "subject to Rent Stabilization Law of 1969 as amended, and that this Notice [wa]s being served upon you pursuant to Sections 2524.3(a) and other applicable sections of the Rent Stabilization Code of the City of New York." Tenant failed to vacate or surrender the Premises on the prescribed date.
As a result, by Notice of Petition and Petition filed March 19, 2013, Landlord commenced the instant nuisance holdover proceeding against Tenant to recover possession of the Premises, rent arrears and reasonable costs and legal fees pursuant to RPAPL 711(1), alleging that Tenant has chronically created a nuisance and violated "the Lease Agreement, House Rules Rider and Support Services/Shelterপ Rider" by allowing her unauthorized guest, Mr. Espinal, to engage in a persistent and continuing course of conduct that endangered, annoyed, and inconvenienced management, tenants and other occupants of the building. Like the Notice of Termination, Landlord described the building regulatory status as only "subject to Rent Stabilization Law of 1969 as amended and * * * duly registered with the NY State Division of Housing and Community Renewal" (DHCR).
After retaining Legal Services of NYC-Bronx, Tenant filed a Verified Answer dated May 9, 2013, generally denying most of the allegations in the Petition, interposing an affirmative defense and raising three objections in point of law, to wit: first, that the Termination Notice and Petition fail to state a cause of action for nuisance; second, that they fail to state the legal and factual basis of this proceeding; and third, that those documents violate the Rent Stabilization Law and public policy by prohibiting Tenant from having guests or roommates at her Premises. The single affirmative defense alleges that Espinal was in fact himself attacked by two residents of the subject building on November 28, 2012, who were arrested and criminally charged, and that Tenant obtained an Order of Protection against one of those residents. The following motion practice ensued.
Specifically, by Notice of Motion dated September 16, 2013, Landlord moves for an order striking Tenant's objections in point of law and dismissing her affirmative defense on the grounds that the Predicate Notice and Petition clearly state a cause of action for nuisance given the litany of at least ten instances of loud, and sometimes physical, altercations between Tenant and Espinal, an unauthorized guest, seven of which resulted in police intervention over a 20-month period, and that Tenant has not denied the actual nuisance allegations in the Petition. Landlord additionally argues that, contrary to the implication of Tenant's Answer, this proceeding is not based on Tenant's permitting a roommate or unauthorized guest to remain there, but on the nuisance created by their continuous, violent and injurious conduct.
In opposition, Tenant cross-moves, by Notice of Cross Motion dated October 17, 2013, for an order dismissing the proceeding pursuant to CPLR 3211(a), arguing that the Petition fails to correctly and sufficiently plead the regulatory status of the Premises in accordance to RPAPL 741(4), and that Landlord additionally failed to comply with Federal Procedural Due Process protections and with other conditions precedent to commencing this proceeding as required by the Code of Federal Regulations (CFR), 24 CFR 582.320. In support of her Motion, Tenant argues that Landlord has failed to specify that Tenant's tenancy is not only subject to Rent Stabilization Laws, but also to the rules and regulations of the Shelterপ Program, a rental subsidy governed by the CFR and authorized by Title IV of the McKinney Homeless Assistance Act, as well as two additional regulatory agreements with New York City, and subject to the Low Income Housing Credit regulations. Landlord counters that its Petition sufficiently identifies the regulatory status of the Premises as rent stabilized, but, in the alternative, sur-cross-moves, by Sur-Cross Motion dated January 15, 2014, for leave to amend the Petition pursuant to CPLR 3025(b) to provide a further description of the Premises' regulatory status as suggested by Tenant. Landlord also argues that compliance with CFR is not a condition precedent to commencing this proceeding. This Court disagrees.
RPAPL 741, which governs the contents of a petition, provides that a petition must: (1) "state the interest of the petitioner in the premises from which removal is sought;" (2) the respondent's interest in the same; (3) "describe the premises;" (4) state the facts upon which the proceeding is based (see Giannini v Stuart, 6 A.D.2d 418, 420 ); and (5) what is the relief sought (see MSG Pomp Corp. v Doe, 185 A.D.2d 798, 800 ). These required elements have been interpreted to include a description of the rent regulatory scheme governing the premises, to such an extent that any "deliberate misrepresentation of the rent-stabilized status of a leasehold subjects the petition to strict construction as a matter of equity, subjecting the summary proceeding to dismissal" (546 W. 156th St. HDFC v Smalls, 43 A.D.3d 7 ; see U.F.H. Apts., Inc. v AEDH, NYLJ, Nov. 17, 1997, at 28, col 5 [AT 1st 1997]). "Where, as here, the tenancy is subject to a specific form of regulation, albeit in the form of a government contract, the petition must set forth the regulatory status of the premises, because this status may determine the scope of the rights of the parties" and "enable the tenant to interpose ...