Law Offices of Edward Alper, New York (Edward Alper of
counsel), for appellant.
Law Firm PLLC, New York (Christopher R. Travis of counsel),
Friedman, J.P., Webber, Gesmer, Kern, JJ.
of the Appellate Term of the Supreme Court, First Department,
entered on or about February 25, 2016, which affirmed a final
judgment of the Civil Court, New York County (Arlene H. Hahn,
J.), entered on or about July 30, 2015, which, after a
nonjury trial, awarded possession of respondent tenant's
apartment to petitioner landlord in this summary holdover
proceeding, unanimously affirmed, without costs.
decline to reach in the interest of justice tenant's
unpreserved argument, raised for the first time in reply
papers, that she was not served with a pretermination notice
that is required where, as here, the catch-all "good
cause" ground is cited by the landlord as the basis to
terminate her tenancy (see generally 24 CFR 247.3).
Were we to entertain the argument, we would find it
unavailing as the purpose of such notice is to provide tenant
with advance notice of his or her alleged conduct that would
be grounds for termination pursuant to 24 CFR 247.3(a)(4).
Here, tenant admitted that she had been fully aware that her
nonpurchase of apartment 5R's shares upon the
building's conversion to a subsidized low income
cooperative housing project, pursuant to an eviction offering
plan, could subject her to eviction. Moreover, tenant's
failure to raise the notice issue constituted a waiver of
such claim and does not implicate the court's subject
matter jurisdiction (see generally 433 W. Assoc. v
Murdock, 276 A.D.2d 360');">276 A.D.2d 360 [1st Dept 2000]).
claim of an alleged inability to purchase the shares to her
apartment upon the building's conversion is also
unpreserved, and we decline to reach it in the interest of
argument that landlord's issuance to her of successive
rent-stabilized leases following the building's
cooperative conversion constituted a waiver of landlord's
rights under the eviction offering plan, or otherwise
afforded a basis to estop landlord from evicting pursuant to
the terms of the eviction offering plan, is unavailing. A
nonprofit cooperative corporation organized under article XI
of the Private Housing Finance Law, as here, is statutorily
exempt from rent stabilization (see 546 W. 156th St. HDFC
v Smalls, 43 A.D.3d 7, 11 [1st Dept 2007]; Matter of
Georgetown Unsold Shares, LLC v Ledet, 130 A.D.3d 99,
103-106 [2d Dept 2015], appeal dismissed 26 N.Y.3d
1141 ). As stated by this Court in Smalls,
"That the parties [associated with a Housing Development
Fund Corporation (HDFC)] may have treated the premises as
subject to rent stabilization does not defeat the statutory
exclusion from regulation. Such an exemption is not subject
to waiver or equitable estoppel'" (43 A.D.3d at 11,
quoting 512 E. 11th St. HDFC v Grimmet, 181 A.D.2d
488, 489 [1st Dept 1992], appeal dismissed 80 N.Y.2d
892 ). Here, notwithstanding the passage of 20 years
since the instant HDFC's conversion, its statutory
existence and management terms as to tenant's apartment
remained unchanged, and may not be waived.
no basis to estop landlord from now evicting tenant simply
because it could have done so nearly 20 years ago, pursuant
to the terms of the eviction offering plan. Landlord's
challenged actions were not entirely inconsistent with the
terms of its eviction offering plan. As previously noted,
landlord is exempt from the rent stabilization laws. Further,
the parties themselves cannot simply agree to opt into or out
of rent stabilization (see generally Smalls, 43
A.D.3d at 14). Tenant's rights to a rent-stabilized lease
expired, when her first postconversion lease ended (General
Business Law § 352-eeee[d][ii]).
tenant's argument that the traverse hearing court erred
in sustaining service of the termination notice upon her
because "reasonable application" to effect such
service was not established (RPAPL 735), is unavailing.
The credited evidence at the traverse hearing established
that the process server attempted to serve tenant at her
residential building both during reasonable business hours
and nonbusiness hours, on two separate days that she was
admittedly likely to be at home; however, since the process
server could get no closer to tenant's apartment than the
building's front door, after repeatedly ringing the
doorbell to her apartment, he affixed the notice of
termination conspicuously to the building's front door
and subsequently complied with the attendant mailing
requirement (see ...