Opinion
Index No. 528480/2021 Mot. Seq. No. 6
06-05-2024
479 HICKS STREET LLC, Plaintiff, v. MARUJA RIAL. CHRISTINA RIAL NICKAS, Defendants.
Unpublished Opinion
Motion Date: 6-3-24
DECISION /ORDER
PETER P. SWEENEY, J.S.C.
Upon the following papers, listed on NYSCEF as: document numbers 117-123 were read on this motion:
The plaintiff. 479 HICKS STREET LLC, moves to re-argue its prior motion for summary judgment for the relief demanded in the complaint, which was denied, as well as defendant's, MARUJA RIAL'S prior cross-motion for an order dismissing the action pursuant to 9 NYCRR 2204.3, which was granted. Upon re-argument, plaintiff seeks an order denying the cross-motion and granting plaintiff s motion for summary judgment
The plaintiff, 479 Hicks Street, LLC, the owner of a residential building located at 479 Hicks Street, Brooklyn, New York, commenced this action seeking a declaratory judgment that the defendant Maruja Rial is not a primary resident of apartment 1R of the building and seeks to eject her from the premises. The plaintiff previously moved for summary judgment. In response f to the motion, the defendant cross-moved to dismiss the action pursuant to 9 NYCRR 2204.3, Plaintiffs motion was denied, and defendant's cross-motion was granted. In the Order granting the cross-motion, the Court stated that 9 NYCRR 2204.3 provides as follows:
(a) Ekcept where the ground for removal or eviction of a tenant is nonpayment of rent, no tenant shall be removed or evicted from a housing accommodation by court process, and no action or proceeding shall be commenced for such purpose upon any of the grounds stated in section 2204.2 of this Part, unless and until the landlord shall have given written notice to the tenant and to the Division off Housing and Community Renewal, Office of Rent Administration, Gertz Plaza, 92-31 Union Hall Street, Jamaica, New York 11433 as hereinafter provided (emphasis added).
(b) Every such notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2204.2 of this Part upon which the landlord relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.
(c) Within 48 hours after the notice is served upon the tenant. an exact copy thereof, together with an affidavit of service, shall be filed with the Division of Housing and Community Renewal, Office of Rent Administration, Gertz Plaza, 92-31 Union Hall Street, Jamaica, New York 11433 . In computing such 48-hour period, any intervening Saturday, Sunday or legal holiday shall be excluded." (emphasis added).
The Court held that the provisions of 9 NYCRR 2204.3 apply to both summary proceedings and ejectment actions (see Froehlich v. Norton. 278 A.D. 952) and that plaintiff s failure to comply with them required dismissal (see Kaycee West 113 th Street Corp. v. Diakoff, 160 A.D.2d 573, 574 (App. Div. 1st Dep't, 1990); Capmar Realty Corp. v. Miz, 2020 NY Slip Op. 50019 (Civ. Ct. NY Co., 2020); IKS Realty Co. it Bowman, 21 Mise. 2d 266 (App. Div. 1st Dep't, 1959). Specifically, the Court held that plaintiffs failure to serve the written notice to vacate that it had served on the defendant on DHCRR at its office located at Gertz Plaza, 92-31 Union Hall Street, Jamaica NY.1443, as required by 9 NYCRR2204.3(c) was fatal (see Capmar Realty Corp., supra.; Kent Equities Corp. v. Paez, 17 Mise 3d 127(A), (AT 1st Dep't 2007); see Grant v. Morris, 18 A.D.2d 896 (1st Dep't 1963): Garvin v. Cole, 53 Mise 2d 647 (AT I st Dep't 1967); Shahid v. Carilia, 8 Mise 3d 134(A) (AT 2nd Dep't 2005)]. Instead, the plaintiff served the notice at its office located at 55 Hanson Place, Brooklyn, New York
In her motion to reargue, the defendant correctly argues that the court overlooked the fact that the version of 9 NYCRR 2204.3(c) that was in effect at the time service was made on DHCR allowed for service on DHCR's district rent office. Thus, service at DHCR's district rent office located at 55 Hanson Place was proper.
"A motion for leave to reargue 'shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include f any matters of fact not offered on the prior motion'" (Grimm v Bailey, 105 A.D.3d 703, 704, 963 N.Y.S.2d 277. quoting CPLR 2221(d) [2]; of American Alternative bis. Corp. v. Pelszynski, 85 A.D.3d 1157, 1158. 926 N.Y. S.2d 640). A determination to grant leave to reargue a motion lies within the sound discretion of the court (Matter of Anthony J. Carter, DDS. P.C v. Carter, 81 A.D.3d 819. 820. 916 N.Y.S.2d 821 [citations and internal quotations omitted]).
Here, since the Court applied the incorrect version of 9 NYCRR 2204.3(c) in addressing defendant's motion, to dismiss, plaintiff's motion for reargument is granted. On reargument, however, the court adheres to its original decision but tor different reasons. The version of 9 NYCRR 2204.3(c) that was in effect at the time plaintiff served DHCR with the notice to vacate Still required the plaintiff to serve DHCR with copies of the affidavits of service reflecting service o f the notice to vacate up on the defendant. Plaintiff only served DHCR with a copy of the written notice to vacate but neglected serve it with copies of the affidavit of service. Plaintiff s failure to comply with 9 NYCRR § 2204.3 (c) which required the timely filing with the district rent office of a copy 6f the predicate notice served upon the tenant and the affidavit of sendee is fatal its right to maintain a holdover proceeding (Capmar Realty Corp. v Miz. 66 Mise. 3d 1208(A), 120 N.Y.S;3d 586 (N.Y. Civ. Ct. 2020), citing Kent Equities Corp. v. Paez, 17 Mise 3d 127(A), (AT 1st Dep't 2007);![see Grant v. Morris, A3 A.D.2d 896 (1st Dep't 1963); Garvin v. Cole, 53 Mise 2d 647 (AT 1st Dep't 1967); Shahid v. Carillo, 8 Mise 3d 134(A) (AT 2nd Dep't 2005)]. 9 NYCRR § 2204.3 (c) may neither be waived by the parties, nor can their consent confer jurisdiction (id., citing Garvin v. Cole, supra. Ferber v. Apfel, 113 App.Div. 720,723) (2nd Dep't 1906).
The court rejects, plaintiff s contention that the defendant failed to raise plaintiffs law compliance with 9 NYCRR 2204.3(c) as a basis for dismissal (see Point I of Defendant's Memorandum of Law in Support of Cross-Motion). The court has considered plaintiff's remaining arguments in support bf its motion and find them to be unavailing.
For the above reasons, it is hereby
ORDERED that plaintiffs motion for reargument is granted, but on reargument, the court adheres to its initial determination that the action must be dismissed, without prejudice.
This constitutes the decision and order of the Court.