Clinton Manor Assoc., L.P. v Santiago
Annotate this CaseDecided on September 9, 2005
Civil Court of the City of New York, New York County
Clinton Manor Associates, L.P., Petitioner,
against
Wanda Santiago, Respondent (Tenant), -and- "JOHN and/OR "JANE DOE", Respondents (Undertenants)
L&T 75046/05
Agins, Siegel & Reiner, LLP, New York City (Jason D. Boroff, Esq., of counsel) for petitioner. The Law Project, Inc., Tracy L Welsh, Executive Director, New York City (Marc A. Rivlin, of counsel) for respondent.
Peter M. Wendt, J.
This is a proceeding commenced pursuant to RPAPL 711(5) and 715(1). In its petition petitioner claims that respondents have been or are using the premises for an illegal activity and/or immoral purpose by using the demised premises in the distribution and sale of controlled substances in violation of law. The petition refers to the annexed Property Clerk's invoice and other documents alleging the presence of various materials at the property constituting evidence of narcotics possession and means of committing a narcotics crime. Respondent moves pursuant to CPLR 3211(a)(2) and (7) for an order dismissing this proceeding on the ground that admittedly no notice to vacate or surrender possession was served prior to commencement of the proceeding. [*2]
The petition alleges that the premises are subject to the Section 8 Regulations of the Department of Housing and Urban Development governing the New Construction Program. The federal regulations governing such premises require a notice of termination prior to eviction based on drug related activity. 24 CFR 880.607(b)(iii) authorizes termination of the tenancy based on drug related activity as described in 24 CFR 5.858. 24 CFR 5.858 describes such acts as follows: The lease must provide that drug-related criminal activity on or near the premises by any tenant, household member or guest, or any such activity engaged in on the premises by any other person under the tenant's control, is grounds to terminate the tenancy. In addition, the lease must allow you to evict a family when you determine that a household member is illegally using a drug or when you determine that a pattern of illegal use of a drug interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents.
24 CFR 880.607(c) requires that "the owner give the family written notice of the proposed termination of tenancy, stating the grounds and that the tenancy is terminated on a specified date and advising the family that it has an opportunity to respond to the owner." The applicable HUD occupancy handbook provisions and Model Family Lease required in Section 8 New Construction housing also require a notice of termination prior to termination of the tenancy. HUD Occupancy Handbook, pps. 8-484-485.
The same reasoning applied by the Appellate Term First Department in NYC Housing Authority v Harvell, 189 Misc 2d 295 (2001) applies here. Harvell involved a Housing Authority tenancy governed by federal regulations. The Court held that the federal regulations applicable therein (24 CFR 966.4) requiring a termination notice prior to a proceeding for eviction based on drug related activity takes precedence over the general rule that a notice of termination is not required. The Court in Harvell held that, "[W]hile 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 termination of a lease (RPAPL 711[5]; RPAPL 715[1]; Real Property Law §231[1]; see Murphy v Relaxation Plus Commodore, 83 Misc 2d 838), this rule gives way where a governing regulatory scheme requires a pre-eviction notice ... ." See also 2312-2316 Realty Corp v Font, 140 Misc 2d 901 (Civ Ct, Bronx Co, 1988, Wendt, J) and NYC Housing & Development, LLC v Arias, 2 Misc 3d 232 (Civ Ct, NY Co, 2003, Bedford, J). Those cases held that the applicable Rent Stabilization Code provision requiring a notice to surrender prior to commencing a proceeding for possession takes precedence over the general rule that a termination notice in proceedings under RPAPL 711[5] or RPAPL 715[1] is not required. The reasoning is that where specific [*3]statutory or regulatory provisions apply to a particular situation, they take precedence over a general rule that applies to all cases. In addition, where apparently different rules can both be applied in harmony, they should be applied in pari materia. 2312-2316 Realty Corp v Font.
The Court in Harvell distinguished the Appellate Term Second Department holding in Jackson Terrace Associates v. Howard, NYLJ April 7, 1993, p 26, col 2, wherein that Court had held that a notice of termination was not a required prerequisite in RPAPL 711[5] proceedings involving Section 8 subsidized housing projects, because the federal regulations at that time did not specifically require a termination notice. At the time of the Jackson decision, the applicable regulations did not specifically list criminal drug related activity as among the categories of termination grounds requiring a termination notice prior to termination of the tenancy. However, the Court in NYCHA v Harvell noted the regulations (24 CFR 247.4) were thereafter amended in 1996 to provide that a notice of termination is required for evictions based on drug related activity. The Appellate Term thus distinguished Jackson Terrace Associates v Howard, and citing 2312-2316 Realty Corp v Font, supra, dismissed the petition for landlord's failure to serve the required notice. The decision cited by petitioner, Jackson Terrace Association v Paterson,159 Misc 2d 637 (App. Term 2nd Dept, 1994), is similarly distinguishable as the premises therein were governed by the same regulations as in Jackson Terrace Associates v. Howard, supra., which applied before the 1996 amendment to the regulations requiring a predicate notice.
In the case at bar, the premises, which are a federally subsidized tenancy under the Section 8 New Construction program, are governed by a regulatory scheme similar to that in NYCHA v Harvell, including the requirement of a notice of termination prior to eviction based on drug related activity. Following the reasoning in NYCHA v Harvell, a notice of termination must also be required prior to eviction for drug related activity in Section 8 New Construction housing under the regulations applicable herein. Accordingly, this Court holds that a notice of termination pursuant to 24 CFR 880.607(c) is required before landlord seeks to evict the tenant for criminal activity under 24 CFR 880.607(b)(iii). Admittedly, no notice of termination was served in this case. Accordingly the respondent's motion is granted. The proceeding is dismissed without prejudice to a new proceeding instituted after service of the required predicate notice. Since this proceeding has been dismissed, respondent's motion for alternate [*4]relief of a stay pending the prosecution of a criminal action need not be dealt with.
The foregoing constitutes the decision and order of the Court.
Dated:New York, New York_____________________________
September 9, 2005Peter M. Wendt, J.H.C.
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