80th Inc. v Witter

[*1] 80th Inc. v Witter 2015 NY Slip Op 51258(U) Decided on August 21, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 21, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Shulman, Ling-Cohan, JJ.
570011/15

80th Inc., Petitioner-Landlord-Appellant,

against

Nellie Witter, Respondent-Tenant, -and- Lisa Knight, Respondent-Undertenant-Respondent, -and- "John Doe" and "Jane Doe," Respondents-Undertenants.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Cheryl J. Gonzales, J.), entered on or about April 12, 2012, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Cheryl J. Gonzales, J.), entered on or about April 12, 2012, reversed, without costs, petition reinstated and matter remanded for further proceedings consistent with this decision.

Following a six-day trial on the merits of this illegal use holdover proceeding, premised upon allegations of illegal drug activity in the rent controlled apartment premises, the court, sua sponte, dismissed the petition on the sole ground that petitioner-landlord failed to serve a notice of termination upon respondent-undertenant Witter (the only appearing respondent) and the DHCR. The court reached this determination despite expressly noting that "[r]espondent did not raise this issue in her answer; or at any time prior to the end of the trial."

The dismissal order, premised solely on the unraised and unbriefed notice of termination issue, unfairly deprived landlord of notice and an opportunity to be heard on that issue, thereby offending traditional notions of fair play. Courts are "not in the business of blindsiding litigants, who expect us to decide their [cases] on rationales advanced by the parties, not arguments their [*2]adversaries never made" (Misicki v Caradonna, 12 NY3d 511, 519 [2009]). In the circumstances, we vacate the dismissal and remand the matter to Civil Court for a hearing to afford landlord an opportunity to address the notice of termination issue, and for such other proceedings as may be necessary to render a final judgment. In doing so, we do not pass upon the merits of the dismissal, or such issues as whether respondent waived any potential defense of noncompliance with the notice of termination requirement and whether the court had the authority to dismiss, sua sponte, on this ground (see 433 W. Assoc. v Murdock, 276 AD2d 360 [2000]; 170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338 [1991]; see also Matter of Fry v Village of Tarrytown, 89 NY2d 714 [1997]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: August 21, 2015