Opinion
2004-1353 RI C.
Decided November 7, 2005.
Appeal from an order of the Civil Court of the City of New York, Richmond County (John Lansden, J.), entered August 31, 2004. The order denied tenant's motion to, inter alia, set aside a stipulation of settlement.
Order affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
Contrary to tenant's contention in support of her application to vacate the stipulation of January 12, 2004 settling this holdover proceeding, landlord's failure to attach to the petition proof that it served copies of the notice of termination, petition and notice of petition on the New York City Housing Authority did not deprive the court of subject matter jurisdiction ( 433 W. Assoc. v. Murdock, 276 AD2d 360, 361; see 170 W. 85th St. Tenants Assn. v. Cruz, 173 AD2d 338, 339 ["the failure of a petitioner to comply with a statutory notice requirement, where applicable, represents merely the failure to comply with a condition precedent to suit and cannot properly be said to affect the court's jurisdiction"]; Wilson Han Assn. v. Arthur, NYLJ, July 6, 1999 [App Term, 2d 11th Jud Dists]; see also Rivercross Tenants' Corp. v. Tsao, 2 Misc 3d 137[A], 2004 NY Slip Op 50254[U] [App Term, 1st Dept]). Since tenant's lease term has now in any event expired as of April 30, 2005 and tenant has no renewal rights, and since landlord would be prejudiced by a vacatur of the stipulation in that, in view of the time which has elapsed, he can no longer be restored to the status quo ante, vacatur of the stipulation is not warranted at this juncture.
Pesce, P.J., and Weston Patterson, J., concur.
Belen, J., concurs in a separate memorandum.
While I fully concur in the majority opinion, I write separately to underscore that we are affirming the order of the court below denying tenant's motion to set aside the stipulation solely because the passage of time since the court's order has brought a change in circumstances. At the time of the court's order, however, it was a clear abuse of discretion for the court to deny tenant's motion.
Tenant had a Section 8 lease in landlord's building for a term of two years, scheduled to expire in April 2005. In October 2003, five months after the commencement of the lease, landlord instituted this holdover proceeding.
The landlord's termination notice (a Blumberg form for terminating a month-to-month tenancy) alleges that tenant violated the lease in that:
1.Tenant installed a chain lock which is key operated and has refused to provide landlord with a key for same.
2.Tenant removed child safety window guards from all windows without the authorization or prior consent of the landlord.
3.Tenant is two (2) months in arrears respecting payment for monthly rent for the months of August and September 2003.
4.Tenant has changed her telephone number without notifying landlord of same and providing him with the new telephone number.
5.Tenant refuses to allow any persons access, i.e., bank appraisers, inspectors, landlord, etc., although landlord has requested that she do so in writing and with prior notice.
6.Tenant is a Section 8 tenant with a lease. No rent is due.
The termination notice did not specify what provisions of the lease were violated, and the giving of a notice to cure was not alleged. The petition further alleged that the building was a legal two-family, was not rent-controlled, and was not a multiple dwelling; that tenant was not in rental arrears; and that tenant was a Section 8 tenant, and Section 8 was notified by certified mail of this proceeding. No proof of this mailing was attached. The petition was, therefore, clearly unsupportable.
There followed approximately nine subsequent court dates, during which tenant appeared pro se and entered into ill-advised stipulations requiring her and her two infant children to vacate the premises. Finally, on June 24, 2004, tenant obtained counsel through the Legal Aid Society, who moved on her behalf to vacate her stipulation of settlement dated January 12, 2004 and to stay the warrant of eviction that had been issued pursuant to it.
By order dated August 31, 2004, the Civil Court denied tenant's motion finding that she had not denied removing the window guards, and that she had changed the locks on her apartment, and that these actions, combined with the other allegations of the petition, were sufficient cause for her eviction. The Civil Court upheld its determination upon the motion to reargue as well.
The conditions that formed the basis of landlord's complaint were clearly curable under the law (RPAPL 753). Additionally, other ample good cause existed for the court below to vacate the stipulation. In this regard, it is noted that there was no conditional limitation in the subject lease. The only provision in the lease dealing with termination stated:
"9.Any misrepresentation or violation of this agreement shall constitute grounds for voiding this agreement and forfeiture of rent and security."
It is well settled that for a holdover proceeding to lie based on a breach of the lease, the "tenancy must have ended automatically by lapse of time and not by election of the landlord to forfeit the lease for breach of a condition" ( Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1, 2; see Beach v. Nixon, 9 NY 35; 2 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 23:25 [4th ed]). In light of tenant's inadvertent waiver of this complete defense as well as her forfeiture of any cure opportunities ( see RPAPL 753) for these eminently curable breaches, it is clear that the stipulation was inadvisedly entered into and should have been vacated ( Cabbad v. Melendez, 81 AD2d 626) and that the petition should have been dismissed. Instead, Civil Court allowed a protracted litigation of this tenancy over numerous months and several court appearances when the petition could have properly been dismissed sua sponte on the obvious grounds that a holdover action does not lie while a lease is still in effect.
However, since the lease term has, in any event, expired as of April 30, 2005 and tenant has no right to a renewal lease, neither party can be restored to the status quo ante. Accordingly, at this juncture, the order must be affirmed.