Opinion
Index 43955/19
09-10-2021
Pri Villa Avenue, L.P., Petitioner, v. August Cocchia, Respondent.
Kellner Herlihy Getty & Friedman LLP, by Charles E. Krausche II, Esq., for Petitioner The Legal Aid Society, by Kayla Fonseca, Esq., for Respondent
Kellner Herlihy Getty & Friedman LLP, by Charles E. Krausche II, Esq., for Petitioner
The Legal Aid Society, by Kayla Fonseca, Esq., for Respondent
HON. KAREN MAY BACDAYAN Judge
Recitation, as required by CPLR 2219 (a), of the papers considered in review of this motion and cross-motion, listed by NYSCEF document number: 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22.
Upon the foregoing cited papers, the decision and order on this motion and cross-motion is as follows:
FACTS AND ARGUMENTS
Petitioner in this summary holdover proceeding, Pri Villa Avenue, LP ("Petitioner"), seeks to recover possession of the subject residential premises from respondent August Cocchia ("Respondent") on the basis that Respondent "[has] engaged in a course of objectionable conduct that interferes with the rights and comforts of others...." (NYSCEF Doc. No. 24 at 9, notice of termination.) The essence of Petitioner's allegation is that Respondent has maintained the premises in a cluttered and unsanitary manner and has refused its attempts to declutter and exterminate. It is not disputed that Petitioner is a recipient of funding through the Shelter Plus Care Program, and that Respondent, a rent stabilized tenant, is a participant in the program. It is also not disputed that the premises is further governed by a regulatory agreement between Petitioner and New York City and consequently subject to Low Income Housing Tax Credit ("LIHTC") regulations. If Petitioner prevails, Respondent will lose both his home and his assistance through the program.
Respondent, now represented by counsel, has moved to dismiss the petition pursuant to CPLR 3211 (a) (7) arguing Petitioner has failed to state a legal and factual basis for this proceeding as required by RPAPL 741 (4) in that Petitioner has "failed to properly plead the regulatory status of the subject premise and its compliance with the federal rules and regulations that govern the Shelter Plus Care Program...." (NYSCEF Doc No. 5, Fonseca affirmation ¶ 42.) Specifically, Respondent argues that Petitioner was required to and failed to allege in the petition that (1) the premises is subject to the federal regulations of the Shelter Plus Care program, (2) the premises is governed by a HOME Written Agreement and that the Petitioner receives subsidies pursuant to the federal HOME Investments Partnerships Program, and (3) the premises is subject to the LIHTC regulations. (NYSCEF Doc No. 5, Fonseca affirmation ¶ 50.) Respondent also moves to dismiss the petition on the grounds that Petitioner lacks standing to commence this proceeding because, contrary to the allegations in the petition, Petitioner is not the "owner of the premises." (NYSCEF Doc No. 5, Fonseca affirmation ¶¶ 17-18; see also NYSCEF Doc No. 24 at 6, verified petition ¶ 1.) Respondent contends instead that the proper party to the proceeding is Pri Villa Avenue Housing Development Fund Corporation ("the HDFC"), the entity that holds record title as indicated by the most recently recorded deed. (NYSCEF Doc No. 5, Fonseca affirmation ¶ 18.)
In the alternative, Respondent argues that Respondent has provided the court with a "hardship declaration" and the proceeding must accordingly be stayed pursuant to the COVID-19 Emergency Eviction and Foreclosure Act ("CEEFPA") as the grounds for this proceeding do not qualify Petitioner for an exception under CEEFPA to the stay provisions of same. (NYSCEF Doc No. 5, Fonseca affirmation ¶¶ 82-83.)
At the time this motion was marked submitted on August 31, 2021, enforcement of CEEFPA was enjoined by the Supreme Court in Chrysafis v Marks (594 U.S. __ 2021). Thereafter, the New York State Legislature revived and reiterated the sections of CEEFPA relevant to this argument. (See L 2021, ch 417, part C, subpart A.)
In opposition, Petitioner contends that it has standing to commence the proceeding under RPAPL 721 (1) as the "landlord or lessor" in the parties' lease agreement. (NYSCEF Doc No. 17 Krausche affirmation ¶ 3; NYSCEF Doc No. 19, Petitioner's exhibit A.) Petitioner clarifies that the Petitioner is the beneficial owner of the premises pursuant to a Declaration and Nominee Agreement with the HDFC (NYSCEF Doc No. 17, Krausche affirmation ¶ 4), and cross-moves to amend its petition to so state. (NYSCEF Doc No. 17, Krausche affirmation ¶ 25; NYSCEF Doc No. 21, Petitioner's exhibit C ¶ 1.) Petitioner also contends that there was no need to plead the existence of the HOME agreement as the premises is not governed by the HOME agreement (NYSCEF Doc No. 17, Krausche affirmation ¶ 14); that the LIHTC regulations do not provide Respondent with any substantive rights relevant to this holdover proceeding and therefore has not been prejudiced by the failure to plead same NYSCEF Doc No. 17, Krausche affirmation ¶ 17); that the Respondent's participation in the Shelter Plus Care program was adequately pleaded (NYSCEF Doc No. 17, Krausche affirmation ¶ 18), and that any due process protections in the governing federal regulations are exceeded and obviated by protections provided for in the Rent Stabilization Code (NYSCEF Doc No. 17, Krausche affirmation ¶ 18); and that eviction for nuisance behavior satisfies the Shelter Care Plus Program "requirement that the housing provider only terminate in the 'most severe case.'" (NYSCEF Doc. No. 17, Krausche affirmation ¶ 23.)
Petitioner's cross-motion also seeks to amend the petition to specify that the premises is subject to the LIHTC regulations found in Section 42 of the Internal Revenue Code, and requests that the amended Petition attached to its motion be deemed as served on all parties. (NYSCEF Doc No. 17, Krausche affirmation ¶ 25; NYSCEF Doc No. 21, Petitioner's exhibit C ¶ 9.) Conspicuously, Petitioner has not moved to amend its petition to plead the Shelter Plus Care regulations, or its compliance with the rules and regulations that govern the Shelter Plus Care Program.
Respondent replies to Petitioner's opposition and opposes its cross-motion on the basis that the premises is in fact subject to a HOME written agreement (NYSCEF Doc No. 22, Fonseca reply affirmation ¶¶ 21-38), that the Petitioner's cited cases are distinguishable (NYSCEF Doc No. 22, Fonseca reply affirmation ¶¶ 29-32), that amendment of the petition is futile because Petitioner has already failed to provide Respondent with due process rights afforded by the Shelter Plus Care program regulations (NYSCEF Doc No. 22, Fonseca reply affirmation ¶¶ 41-53), and that Petitioner has not adequately demonstrated that this proceeding falls within any "nuisance exception" to the filing of a hardship declaration. (NYSCEF Doc No. 22, Fonseca reply affirmation ¶¶ 54-60).
The court first considers Respondent's motion to dismiss.
DISCUSSION
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. (Matter of Volunteers of Am.-Greater NY, Inc.. Almonte, 65 A.D.3d 1155 [2d Dept 2009], affg 17 Misc.3d 57 [App Term, 2d 2007]; see Cintron v Pandis, 34 Misc.3d 152 [A], 2012 NY Slip Op. 50309[U] [App Term, 2d Dept 2012]). A petition which fails to satisfy this requirement is subject to dismissal. While a defect of this nature may be overlooked where no prejudice results to the tenant (see 17th Holding LLC v Rivera, 195 Misc.2d 531 [App Term, 2d Dept 2002]; see also Coalition Houses LP v Bonano, 12 Misc.3d 146 [A], 2006 NY Slip Op 51516 [U] [App Term, 1st Dept 2006]), for the following reasons it cannot be said that Petitioner's failure to make the required allegation was not prejudicial here.
The Shelter Plus Care Program "is designed to link rental assistance to supportive services for hard-to-serve homeless persons with disabilities (primarily those who are seriously mentally ill; have chronic problems with alcohol, drugs, or both; or have acquired immunodeficiency syndrome (AIDS) and related diseases) and their families." (24 CFR 582.1.) Recipients of funding through the program "must assure that adequate supportive services are available to participants in the program." (24 CFR 582.300 [c] [emphasis added].) "Eligibility includes documentation... that the client has a documented disability of indefinite duration and impedes the person's ability to live independently within the community." (NY Connects, Program Shelter Plus Care Housing, available at https://www.nyconnects.ny.gov/services/shelter-plus-care-housing-652 [last accessed August 31, 2021]; see also 24 CFR 582.5 [defining eligible disabilities].)
Consistent with the objective of the program, the governing regulations provide for termination of assistance to individuals in some circumstances, but "only in the most severe cases." (24 CFR 582.320 [a].) To ensure the integrity of the program, the regulations require that prior to termination of assistance to an occupant, recipients "examine all extenuating circumstances in determining when violations are serious enough to warrant termination." (Id.) In furtherance of this goal, recipients must "provide a formal process that recognizes the rights of individuals receiving assistance to due process of law." (24 CFR 582.320 [b].) "This process at a minimum must consist of
(1) Written notice to the participant containing a clear statement of the reasons for termination;
(2) A review of the decision, in which the participant is given the opportunity to present written or oral objections before a person other than the person (or a subordinate of that person) who made or approved the termination decision; and
(3) Prompt written notice of the final decision to the participant." (Id. [emphasis added].)
The predicate notice of termination served herein, as is relevant to the Shelter Plus Care subsidy, summarily states that Respondent's behavior constitutes "good cause for termination under the Shelter Plus Care Subsidy Program." (NYSCEF Doc. No. 24 at 9-11, termination notice.) Petitioner has neither pleaded the regulations requiring the formal termination process, nor compliance therewith.
Respondent cites to Westchester Gardens, L.P. v Lanclos, (43 Misc.3d 681 [Civ Ct, Bronx County 2014]), a persuasive case indiscernible from the one at bar. In Lanclos, a landlord who was also a recipient of a Shelter Plus Care subsidy sued a tenant who was a participant in the program alleging chronic nuisance. Upon the tenant's failure to remove from the premises after the expiration of the termination notice, the landlord commenced a summary holdover proceeding. The represented tenant argued that the petition failed to sufficiently plead the regulatory status of the Premises in accordance to RPAPL 741(4), "and that [the] Landlord additionally failed to comply with federal procedural due process protections and with other conditions precedent to commencing this proceeding as required by the Code of Federal Regulations (CFR), 24 CFR 582.320." (Lanclos, 43 Misc.3d at 684.) In Lanclos, as here, the petition was also silent as to a regulatory agreement with New York City, and that the premises was subject to the LIHTC regulations. (Id.) Such governmental entwinement, the court opined, "constitute[d] significant and meaningful governmental participation, triggering constitutional procedural due process guarantees." (Id. at 686.)
The Lanclos court pointedly rejected the landlord's argument that compliance with the CFR is not a condition precedent to commencing a summary proceeding to evict a tenant participating in the Shelter Plus Care Program, and specifically stated that the failure to include in its pleadings "the CFR rules and regulations governing the Shelter Plus Care Program of which tenant belongs" and failure to allege compliance with the regulations was "fatal to the proceeding because neither tenant nor the court were put on notice of the laws governing the tenancy or the substantive rights involved." (Id. at 685-686 ["Not only is the premises' regulatory status required, but landlord must also show its compliance with the applicable rent laws and regulations over the tenancy."] [emphasis added].)
More recently, in PCMH Crotona L.P. v Taylor (57 Misc.3d 1212 [A], 2017 NY Slip Op 51401[U] [Civ Ct, Bronx County 2017]), the landlord sought to evict a tenant residing in supportive housing. The court dismissed the petition pursuant not only to RPAPL 741 (4), but also because the landlord failed to "state its interest in the premises" pursuant to RPAPL 741 (1). (Taylor, 2017 NY Slip Op 51401[U] *3.) The court held that the landlord's failure to alert the court to the supportive housing nature of its relationship to the respondent, and the specific contracts and regulations relevant thereto, required dismissal of the proceeding. (Id.)
Petitioner mischaracterizes the supportive services and due process requirements of 24 CFR 582.320 (b) as "minimum requirements" to ensure due process prior to eviction (NYSCEF Doc. No. 17, Krausche affirmation ¶ 21), that are lesser than the "superior" protections from eviction provided by the Rent Stabilization Code. Petitioner maintains that because Petitioner opted in the regulatory agreement between it and the city to be subject to the rent stabilization law, Petitioner has provided a pre-eviction "judicial process" that exceeds the purported "minimum requirements [of the federal regulations]." (NYSCEF Doc. No. 17, Krausche affirmation ¶¶ 21-22.) The gravamen of Petitioner's argument is that it does not need to afford to Respondent the supportive services process that it is required by the Shelter Plus Care regulations to provide because it is adhering to the Rent Stabilization Code by seeking Respondent's eviction in court.
Regardless whether Petitioner had properly quoted the regulations as requiring "at a minimum" certain due process protections, the intent of the regulation is plain that the mandatory pre-termination process is a floor, not a ceiling, upon which other protections may lie.
By arguing this, Petitioner has eroded its own argument that it was not required to plead compliance with CFR 582.320, because "the due process procedures cited by respondent apply to a cutoff of 'assistance' and not termination of a tenancy." (NYSCEF Doc. No. 17, Krausche affirmation ¶ 20.) Petitioner casts the regulation as providing due process prior to eviction to occupants who do not have the protection of the Rent Stabilization Code, as Respondent does here. Regardless, Petitioner makes a distinction without a difference: Termination of Respondent's assistance would result in her removal from the premises, just as her removal from the premises would terminate her assistance.
In the context of the relationship between Petitioner and Respondent, where Respondent is sheltered by Petitioner who receives federal funding to provide both shelter and care to Respondent, the federal regulations and state law are not exclusive of each other and can exist in harmony. The Rent Stabilization Code does not require that recipients of funding for supportive housing provide for "adequate supportive services" or special procedures when evicting a supportive housing resident (see 24 CFR 582.300 [c]), or provide a formal process to ensure that a resident's rights to adequate services have been protected prior to termination. (24 CFR 582.320.) These are additional protections that Petitioner has contracted to provide. (See Minick v Park, 217 A.D.2d 489, 490 [1st Dept 1995] ["[T]he [Rent Stabilization Code] simply establishes the minimum rights to be accorded tenants, and does not preclude a contract that gives a tenant greater rights"].)
Thus, under the circumstances herein, pleading that this premises is subject to the relevant supportive housing rules and regulations, and compliance therewith, alerts the court and the parties to additional protections intended to safeguard vulnerable, formerly-homeless occupants from needless displacement or premature eviction. Requiring a landlord who receives government funds through the Shelter Plus Care Program to plead its contractual interest in a premises, and its compliance with governing supportive housing regulations and procedures, also ensures that such recipients are meeting the program's interrelated goals and obligations to house dispossessed and compromised individuals, prevent their displacement except in "only the most severe cases," and support them to live harmoniously and safely within a community. It further ensures that the court does not inadvertently trample on the due process rights afforded to participants in the program.
As the Respondent's motion to dismiss this proceeding pursuant to RPAPL 741 and 3211 (a) (7) is GRANTED, the court need not reach the other branches of Respondent's motion. Petitioner's cross-motion is denied as moot.
This constitutes the decision and order of this Court.