Opinion
July 9, 2001.
Jeffrey Schanback, General Counsel, New York City (Elyse Hilton, Steven J. Rappaport and Nancy Hartnett of counsel), for appellant.
Legal Aid Society, Bronx (Jack Stoller and Marshall Green of counsel), for respondent.
Before: Stanley Parness, P.J., William P. McCooe, Phyllis Gangel-Jacob, JJ.
Order dated May 31, 2000 (Pierre B. Turner, J.) affirmed, with $10 costs.
While it has been stated that a termination notice is not generally required to maintain an illegal use proceeding, since such a proceeding is founded upon statutory authority and not the termination of a lease (RPAPL §§ 711, 715; RPL § 231; see, Murphy v. Relaxation Plus Commodore, Ltd., 83 Misc.2d 838), this rule gives way where a governing regulatory scheme requires pre-eviction notice (see, e.g., 2312-2316 Realty Corp. v. Font, 140 Misc.2d 901; 9 NYCRR §§ 2524.3[d], 2524.2[c][2]). The federal regulations governing this Housing Authority tenancy, under the heading "Termination of tenancy and eviction", specifically provide that "any drug-related criminal activity on or near [the] premises" shall be cause for termination of a tenancy, and require a written termination notice of 30 days ( 24 C.F.R. § 966.4[l][2][ii][B]; § 966.4[l][3][i][C]). Jackson Terrace Associates v. Howard, NYLJ, April 7, 1993, at 26, col 2 [App Term, 2d Dept], is not to the contrary, since at the time of that decision, the federal regulations did not expressly require a termination notice in such a case. Accordingly, this summary proceeding premised upon the Housing Authority's allegations that the premises were being utilized for illegal trading in drugs, was properly dismissed for lack of compliance with the procedural requisites for eviction.
The modification of the Escalera Decree (see Escalera v. New York Housing Authority, 924 F. Supp. 1323 [SDNY 1996]). allowing the Housing Authority to proceed directly against drug-trafficking tenants under Article 7 of the Real Property Actions and Proceedings Law, does not relieve the Housing Authority from its duty to serve predicate notices mandated under the Code of Federal Regulations.