Opinion
0436-21
10-01-2021
Kahiesha BENNETT, Petitioner-Landlord, v. Toni BROOKS, Michael Adams and Franklyn Doe, Respondents-Tenants.
Kahiesha Bennett, Petitioner pro se, [redacted], Mount Vernon, New York 10550 Legal Services of the Hudson Valley, Attorneys for Respondent, 100 East 1st Street, Suite 810, Mount Vernon, New York 10550
Kahiesha Bennett, Petitioner pro se, [redacted], Mount Vernon, New York 10550
Legal Services of the Hudson Valley, Attorneys for Respondent, 100 East 1st Street, Suite 810, Mount Vernon, New York 10550
Adam Seiden, J.
Petitioner commenced this holdover proceeding in June 2021 seeking to recover possession of the residential premises following the expiration of the parties rental agreement.
Respondent now moves to dismiss this holdover proceeding on the grounds that 1)the notice of termination, notice of petition and petition were not served upon the Public Housing Authority administering the Section 8 voucher 2) the petition fails to plead the Section 8 status of the tenancy, and 3) the predicate notice is defective.
Respondent opposes the motion.
Respondent's counsel, Mary Grace Ferone, affirms that upon information and belief, respondent is the recipient of a Section 8 voucher administered by CVR. She affirms that respondent's portion of the rent is $366 and that CVR pays the remainder of the rent in the amount of $1,384. Counsel argues that the petition must be dismissed because Federal regulation 24 CFR § 982.31 (e)(2)(ii) requires that an owner/landlord seeking to terminate a tenancy under a Section 8 program must give the Public Housing Authority a copy of any eviction notice to the tenant, including the termination notice, petition and notice of petition. Counsel argues that the petitioner failed to served the PHA with any termination notices. Counsel further argues that petitioner failed to plead the Section 8 status of the tenancy in her papers, thus rendering the predicate notice and petition defective. Accordingly, counsel argues that the petition must be dismissed.
In opposition to the motion, petitioner states that when she served the termination notice on August 26, 2020, she notified CVR of her intention to terminate the respondent's lease. She maintains that she emailed the respondent's case worker, Nikki Shields, and informed her that she was terminating the tenancy because Respondent Brooks broke her rental agreement. She argues that she attached a copy of the Notice to Terminate to the email she sent Ms. Shields. A copy of the purported email to Ms. Shields, dated September 4, 2020 is attached to respondent's opposition papers. A Notice of Infraction, dated September 4, 2020, from Nikki Shields addressed to the petitioner is also attached to the papers as Exhibit A. Petitioner argues that the Notice of Infraction from CVR evidences that she notified the Section 8 administrator that she was seeking to evict the respondent. She further argues that she entrusted the Mount Vernon City Marshal's office to serve the papers. She states that CVR was served with the Notice of Petition and Petition by certified mail on June 3, 2021. A copy of a U.S. Postal Service certified mail receipt No.7017 3380 0001 0777 8980 addressed to CVR, 112 E. Post Road, Suite #102, White Plains, NY 10601 is attached to the opposition papers as Exhibit B.
In reply, respondent's counsel maintains that no affidavit of service has been filed alleging proper service of the CVR. Counsel affirms that the petitioner's purported email to CVR fails to comply with federal regulations as there is no way of verifying that the notice to evict was attached to the email. She further argues that the notice of termination fails to mention CVR or Section 8. Accordingly, counsel argues that the petition must be dismissed as respondent failed to properly serve the a predicate notice upon the PHA.
A summary proceeding is a special proceeding governed entirely by statute and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction (See Goldman Bros. v. Forester , 62 Misc 2d 812, 309 N.Y.S.2d 694 [Civ. Ct. NY Co. 1970] ). A petition in a summary proceeding is sufficient if it sets forth sufficient facts so that respondent may adequately frame a defense ( Tompkins Park-St. Marks Associates v. Boz Boz II Enterprises, Ltd. , 177 Misc 2d 949, 679 N.Y.S.2d 236 [1st Dept. 1998] ).
RPAPL § 741 states in relevant part that:
"Every petition shall: "1) State the interest of the petitioner in the premises from which removal is sought. 2) State the respondent's interest in the premises and his relationship to petitioner with regard thereto. 3) Describe the premises from which removal is sought. 4) State the facts upon which the special proceeding is based ...."
Where a tenancy is subject to a specific type of regulation, the petition must set forth the tenant's regulatory status, because this status may determine the scope of the tenant's rights in the summary proceeding ( Matter of Volunteers of Am.-Greater NY, Inc. v Almonte , 65 A.D.3d 1155, 886 N.Y.S.2d 46 [2d Dept 2009], affg 17 Misc 3d 57, 847 N.Y.S.2d 327 [App Term, 2d 2007] ; see Cintron v Pandis , 34 Misc 3d 152[(A]), 950 N.Y.S.2d 490, 2012 N.Y. Slip Op. 50309[(U]) [App Term, 2d Dept 2012] ). A petition which fails to satisfy this requirement is subject to dismissal. A simple misstatement concerning the regulatory status of a tenancy will not render the petition jurisdictionally defective (Routolov Garzillo , 86788/15, NYLJ 1202781160330 at 1 [Civ Ct. Kings Co. 2017); 2017 NYLJ LEXIS 659 (citing 17th Holding LLC v Rivera , 195 Misc 2d 531, 758 N.Y.S.2d 758 [2d Dept 2002] ). However, where a petition contains ‘fundamental misstatements and omissions’ it will be dismissed ( Cintron v Pandis, 34 Misc 3d 152(A), 950 N.Y.S.2d 490 (citing Jeffco Mgt. Corp. Local Dev. Corp. of Crown Hgts., 22 Misc 3d 141(A), 881 N.Y.S.2d 364 (A) [App. Term 2d, 11th & 13th Jud Dists 2009]; see also Mc Fadden v Sassower, 26 Misc 3d 141(A) [2d Dept 2010] ); Joseph M. d'Assern Hous. Corp. v Day , 24 Misc 3d 132(A), 890 N.Y.S.2d 369 [2d Dept 2009] (holdover petition dismissed failure to plead Mitchell-Lama regulatory status of tenancy)).
Respondent's contention the petitioner failed to properly plead the Section 8 status of the tenancy and serve a copy of the termination notice on the public housing authority are viable defenses to the instant action ( Brookwood Coram I, LLC v Oliva , 47 Misc 3d 140(A)[ 2d Dept 2015] (holding that petitioner's failure to allege that the tenant was a recipient of a Section 8 subsidy was a fundamental omission requiring dismissal of the petition as it did not comply with the requirements of RPAPL § 741 ); Rippy v Kyer , 23 Misc 3d 130(A), 885 N.Y.S.2d 713 (A) [2d Dept. 2009]; see also Levister Redevelopment v. Pena , 202 NY Misc LEXIS 9182, 2020 WL 6865990, 2020 NY Slip Op 51401U (Civ. Ct. Mount Vernon 2020) 35 Ossining LLC v Thornton , 43 Misc 3d 399, 981 N.Y.S.2d 503 [Justice Ct Ossining 2014] ).
In the case at bar, the petition merely states that the term of the lease agreement has expired. The petition fails to state that respondent is the recipient of a Section 8 subsidy. Respondent's Section 8 regulatory status determines the scope of her rights under the lease for the subject premises, which includes the rights and responsibilities of respondent and the applicable Section 8 agency, in this case CVR New York, regarding service of process. Moreover, the Section 8 statutory regulations provide the respondent with defenses to the action and the Court could not properly adjudicate this matter without knowing respondent's Section 8 status. Significantly, pursuant to 24 CFR § 982.310(e)(2)(ii), the landlord/owner "must give the PHA a copy of any owner eviction notice to the tenant." Petitioner failed to demonstrate she served the same notices on CVR.
For the reasons stated above, the Court finds that the petition contains fundamental misstatements and omissions necessitating dismissal of the petition. ( Brookwood Coram I, LLC v Oliva , 47 Misc 3d 140(A) (A)); Cintron v Pandis , 34 Misc 3d 152(A), 950 N.Y.S.2d 490 (A); see also Routolo v Garzillo , 86788/15, NYLJ 1202781160330 (holding allegation that premises was decontrolled by DHCR order not a mere misstatement but a fundamental one warranting dismissal of the summary proceeding).
Accordingly, the motion to dismiss the petition is granted.
This constitutes the Decision and Order of this Court.
The Court considered the following papers on this motion: Motion to Dismiss dated August 2, 2021; Exhibits. Affirmation in Opposition dated August 5, 2021; Exh. A-D. Reply Affirmation dated August 16, 2021.