Opinion
49386/2017
08-31-2018
FINDLAY HOUSE, INC., Petitioner v. ZHANG HONGLIU, John Doe, Jane Doe, Respondent.
Jason D. Boroff & Associates PLLC, Madalina Danescu, Esq., for the Petitioner BOOM!Health Legal Services, Emilio Paesano, Esq., for the Respondent
Jason D. Boroff & Associates PLLC, Madalina Danescu, Esq., for the Petitioner
BOOM!Health Legal Services, Emilio Paesano, Esq., for the Respondent
Karen May Bacdayan, J.
Background
This is a licensee holdover proceeding in which Petitioner claims that Respondent's license to occupy the subject premises expired with the death of her husband. The Respondent lives in Mitchell-Lama housing which is supervised by the New York State Division of Housing and Community Renewal (DHCR).
This proceeding was adjourned several times for a Mandarin interpreter, for evaluation by Adult Protective Services and the appointment of a guardian ad litem, and for Respondent to retain counsel. On June 6, 2018, after retaining an attorney, Respondent served Petitioner with an answer interposing a succession defense. The following day, Respondent's counsel prepared a formal request to Findlay House on behalf of Respondent that she be recognized as a successor tenant to the subject premises and mailed it to Petitioner's attorney. The proceeding was adjourned several more times for motion practice, and to conference the case with the Court.
The procedure for a remaining family member to seek succession to an apartment in state-assisted Mitchell-Lama housing is set out at 9 NYCRR 1727-8.4. The tenant first applies to the housing company for permission, and if her application is denied, she may appeal at DHCR from that denial. (9 NYCRR 1727-8.4 [b].) At the conference on August 2, 2018, Petitioner indicated that it had accepted Respondent's request for succession to the apartment, and that a package had been sent by Petitioner in mid-July 2018 to DHCR requesting that DHCR approve a lease in her name. This approval, over which DHCR has exclusive jurisdiction, would be dispositive of the proceeding. (Bedford Gardens Co., LP v. Jacobowitz , 29 A.D.3d 501, 815 N.Y.S.2d 149 [2d Dept. 2006].) The Court made a request of DHCR to expedite the proceeding. There was no response from DHCR prior to the adjourned argument date.
Respondent moves for a stay of this proceeding pending the outcome of Respondent's application to remain in occupancy as the lawful tenant of the apartment, and Petitioner cross-moves for the use and occupancy that has accrued since the commencement of this proceeding, as well as ongoing use and occupancy during the pendency of this proceeding pursuant to RPL 220, RPAPL 749 (3) and RPAPL 745 (2). Petitioner alleges several procedural infirmities on the part of Respondent over the course of the proceeding, but does not oppose Respondent's motion for a stay. Oral argument was heard on August 23, 2018.
The Procedural Infirmities
The Answer
Petitioner argues that Respondent's Answer should be disregarded because it was served impermissibly late. However, an answer in a holdover proceeding may be filed "at the time when the petition is to be heard." ( RPAPL 743.) Moreover, Respondent served her Answer immediately upon retaining counsel. (See City of New York v. Candelario , 156 Misc.2d 330, 601 N.Y.S.2d 371 [App. Term, 2d Dept. 1993], affd in part, revd in part on other grounds 223 A.D.2d 617, 637 N.Y.S.2d 311 [1996] [an adjournment for tenant to retain an attorney extends tenant's time to file an answer].)
The Verification
Petitioner further argues that Respondent's Answer is improper because it contains a verification from Respondent in English only, and Respondent has requested a Mandarin interpreter each time she is in court. However, Respondent is entitled to an interpreter in court (Uniform Rules for Trial Cts [22 NYCRR] § 217.) Moreover, Petitioner, who accepted service of the Answer personally on June 6, 2018, waited more than five weeks to make any objection as to the form of the Answer and has thus failed to timely object to the form of the verification. ( CPLR 3020.) Respondent also correctly points out that Petitioner failed to attach a copy of the Answer to which it objects as required by CPLR 2101 (f).
Short Service
Section 406 of the CPLR, which states "[m]otions in a special proceeding, made before the time at which the petition is noticed to be heard, shall be noticed to be heard at that time," shortens the time for notice of any motion made prior to the hearing in a special proceeding. ( PCMH Crotona L.P. v. Taylor , 57 Misc.3d 1212 [A], 2017 N.Y. Slip Op. 51401 [U], 71 N.Y.S.3d 924 [Civ. Ct., Bronx County 2017].) Little or no notice is permitted by CPLR 406. ( Goldman v. McCord , 120 Misc.2d 754, 756, 466 N.Y.S.2d 584 [Civ. Ct., N.Y. County 1983]. Any prejudice to the opposing party caused by truncated service of a motion can be cured by an "ad hoc adjournment procedure." ( Id. )
In this case, Petitioner was served with the Respondent's motion, returnable on July 18, 2018, by regular mail on July 14, 2018. This is permissible pursuant to CPLR 406. Respondent also sent Petitioner a courtesy email to ensure that Petitioner would have notice of the motion and would not be surprised. On July 18, 2018, Petitioner requested an adjournment to oppose Respondent's motion and to cross-move for use and occupancy and the parties stipulated to a briefing schedule. Thus, any prejudice to Petitioner has been cured by the additional time to oppose Respondent's motion, time to which Petitioner consented, and is necessarily obviated by the fact that Petitioner does not oppose Respondent's motion for a stay.
This is clear from Petitioner's opposition papers and was unequivocally confirmed by Petitioner's attorney at oral argument.
The Stay
Respondent's motion for a stay pending the determination at DHCR is unopposed; thus, this proceeding is stayed pending the outcome of the administrative proceeding at DHCR.
In any event, the Court notes that CPLR 2201 provides this Court with the discretion to stay this proceeding "upon such terms as may be just." A stay of a proceeding is appropriate "where the decision in one action with determine all the questions in the other action, and the judgment on one trial will dispose of the contrary in both ...; this requires a complete identity of the parties, the causes of action and the judgment sought." ( 952 Assoc., LLC v. Palmer , 52 A.D.3d 236, 236-37, 859 N.Y.S.2d 138 [1st Dept. 2008].)The parties and issues in both the holdover proceeding and the proceeding initiated by Respondent with the housing company are identical. In both proceedings Respondent should be recognized as a successor tenant to the Mitchell-Lama apartment in which she resided with her deceased husband. Respondent has applied to Petitioner for permission to remain in occupancy as a successor tenant and permission has been granted by Petitioner. The parties await DHCR's determination which will be dispositive of this proceeding.
DHCR is vested with exclusive jurisdiction to determine remaining family member claims in state assisted Mitchell-Lama housing. ( Bedford Gardens Co., LP , 29 A.D.3d 501, 815 N.Y.S.2d 149 [holding that DHPD has exclusive jurisdiction over succession claims in city-assisted Mitchell-Lama housing]; Rochdale Vil., Inc. v. Goode , 16 Misc.3d 49, 842 N.Y.S.2d 142 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2007] [holding that "in view of the similarity between the two sets of regulations, the same rule of exclusivity of jurisdiction that is applied in City-assisted Mitchell-Lama housing should be applied in State-assisted Mitchell-Lama housing."]; St. Marks Place Housing Company, Inc. v. Moultrie , 34 Misc.3d 140 [A], 943 N.Y.S.2d 794 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2012] [holding that occupant's succession-rights defense cannot be entertained in this [licensee] summary proceeding as DHCR has exclusive jurisdiction over that claim]; see also Starrett City, Inc v. Smith , 25 Misc.3d 42, 889 N.Y.S.2d 362 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2009].
Use and Occupancy
In this case, an award of use and occupancy pursuant to RPAPL 745 (2) is not appropriate. Section 745 (2) of the RPAPL provides in relevant part:
"In a summary proceeding upon the second of two adjournments at the request of the respondent, or, upon the thirtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner, the court shall direct that the respondent, upon an application by the petitioner, deposit with the court within five days sums of rent or use and occupancy accrued from the date the petition and notice of petition are served upon the respondent, and all sums as they become due for rent and use and occupancy, which may be established without the use of expert testimony."
Under RPAPL 745 (2), if the Respondent fails to make the deposit, or makes an initial deposit but not subsequent deposits, the consequences are dire. In the first instance, the Answer and all defenses will be stricken. ( RPAPL 745 [2 ] [c] [i].) In the second instance, the parties will be sent for an immediate trial. ( RPAPL 745 [2 ] [c] [ii].)
The remedies provided by RPAPL745 (2) are antithetical to the facts and posture of this proceeding. This proceeding is being stayed in order for Respondent's succession claim, which was raised in her Answer as a defense to the proceeding, to be determined by DHCR as is required by law given that DHCR has exclusive jurisdiction over Respondent's claim. Were Respondent to be required to pay use and occupancy pursuant to RPAPL 745 (2), her defense of succession would be stricken if she failed to make the initial deposit, or she would be required to go to an immediate trial if she failed to pay use and occupancy after an initial deposit. Such remedies conflict with the requirement that her succession claim lies within the exclusive jurisdiction of DHCR.
Section 749 (3) of the RPAPL, which is entitled "Warrant," contemplates a post-judgment posture of a summary proceedings and is therefore inapplicable to the instant proceeding at its current posture. Moreover, this Court does not view RPL 220 to require that use and occupancy be paid to a landlord during the pendency of summary holdover proceedings. Section 220 of the Real Property Law authorizes actions which seek to "recover a reasonable compensation for the use and occupation of real property, by any person, under an agreement, not made by deed." (See e.g. 230 Park Ave Assocs. v. State , 165 Misc.2d 920, 927, 630 N.Y.S.2d 855 [Ct. Cl. 1995] [recognizing RPL 220 as a codification of the common law rule that a landlord could recover reasonable use and occupation from a tenant who went into possession under an invalid lease].)
However, this Court possesses the broad discretionary authority to grant payment of use and occupancy during the pendency of the proceeding as is necessary to balance equitably the parties competing interests long recognized by the Appellate Division in the First Department. ( Alphonse Hotel Corp. v. 76 Corp. , 273 A.D.2d 124, 710 N.Y.S.2d 890 [1st Dept. 2000] ["[T]he court has broad discretion in awarding use and occupancy pendente lite."] ) In upholding the lower court's decision to stay an ejectment action pending administrative decision of the New York City Loft Board, the Court wrote:
"However, we find error in the failure of Special Term to direct defendants to pay use and occupancy at the rate currently provided for as rent on each rental due date and, accordingly, modify the order to that extent. Such a result, in our view, accommodates the competing interests of the parties in affording necessary and fair protection to both parties , to the tenant through possession, pending determination of the issue by the Loft Board, and, at the same time, to the landlord by requiring the tenant to pay the landlord for use and occupancy."
( Eli Haddad Corp. v. Cal Redmond Studio , 102 A.D.2d 730, 731, 476 N.Y.S.2d 864 [1st Dept. 1984] [internal citations omitted] [emphasis added]; see MMB Assoc. v. Dayan , 169 A.D.2d 422, 422, 564 N.Y.S.2d 146 [1st Dept. 1991] [noting that award of use and occupancy during proceeding "accommodates parties' competing interests by preserving status quo until final resolution," and that it would be "manifestly unfair that defendant herein should be permitted to remain in possession of the subject premises without paying for their use"]; Shoshany v. Goldstein , 20 Misc.3d 687, 860 N.Y.S.2d 908 [Civ. Ct., N.Y. County 2008] ["This court has the broad discretion to award use and occupancy pendente lite "].)
In an Appellate Term, Second Department case, Quality Ruskin Assocs. v. London, 8 Misc,3d 102 at 106, 800 N.Y.S.2d 259 [App. Term, 2d Dept., 2 & 11th Judl. Dists. 2005], Justice Patterson filed a partially dissenting opinion articulating such a position: "In my view, the court below retains the discretionary authority to grant interim use and occupancy as necessary to balance equitably the parties' competing interests, particularly where the proceedings are delayed by such motion practice as the parties may require."
Here, like in Eli Haddad Corp. , the equities require that Respondent pay for its use and occupancy of the subject premises pending the determination by the administrative agency with both the expertise and jurisdiction to decide the facts at issue. The Court is guided by the regulations governing City-assisted Mitchell-Lama housing recognize this need and require that pending HPD's determination of succession rights "the applicant may continue in occupancy and shall be required to pay for the use and occupancy of the apartment in an amount equal to the monthly rental/carrying charge paid by the vacating tenant/cooperator." (28 RCNY § 3-02 [p] [8] [iii].)
At oral argument, Respondent did not disagree with this position, and, in fact, has indicated a willingness throughout the proceeding to pay use and occupancy pendente lite and had previously agreed by stipulation on four occasions to pay use and occupancy at the amount that was paid by her deceased husband.
Accordingly, within 20 days of the service of a copy of this order with Notice of Entry, the Court orders Respondent to pay use and occupancy of $751.00 per month from July 2018 (the month that Petitioner interposed its cross-motion for use and occupancy) for the pendency of this proceeding, which shall include any months during which Respondent's request remains at DHCR and any months during which any appeal from DHCR's determination denying of succession remains pending. In addition, within in 30 days of the Petitioner providing Respondent with a lease agreement following approval of her succession claim at DHCR, Respondent shall pay any outstanding use and occupancy. On default in either payment, Petitioner may restore this proceeding to the calendar on notice to Respondent for entry of a monetary judgment only.
The parties agreed at oral argument that $7,502.00 is outstanding through August 2018. Subtracting from that amount the July and August 2018 use and occupancy due within 20 days of the service of a notice of entry of this order, the amount to be paid will be $6,000.00.
This constitutes the Decision and Order of this Court.
SO ORDERED: