50 W. 112th St. HDFC v Ali

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[*1] 50 W. 112th St. HDFC v Ali 2006 NY Slip Op 52150(U) [13 Misc 3d 1237(A)] Decided on November 15, 2006 Civil Court Of The City Of New York, New York County Wendt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 15, 2006
Civil Court of the City of New York, New York County

50 West 112TH Street HDFC, Petitioner,

against

Malkatelder Ali, Respondent, -and- "JOHN DOE" and "JANE DOE", Respondents.



L&T 70652/06



Michael R. Cohen, Esq., Green & Cohen, New York City, for Petitioner; Steven Banks, Esq., The Legal Aid Society, New York City, (Cristina Romero, of Counsel), for Respondent.

Peter M. Wendt, J.

This holdover eviction proceeding was commenced by petitioner in May, 2006. The petition, verified by petitioner's attorney on May 2, 2006, originally alleged that the subject premises is subject to the Rent Stabilization Law. The petition was based on a thirty day notice of termination which merely alleges that landlord elects to terminate respondent's tenancy which continued on a month-to-month basis after expiration of her lease on August 31, 2005. Clearly, this would not be sufficient ground for termination of a rent stabilized tenancy. Thus, respondent, through counsel, moved to dismiss the petition pursuant to CPLR 3211(a)(7) because a rent stabilized tenancy cannot be terminated for no reason beyond expiration of a lease or termination of a subsequent month-to-month tenancy. Petitioner cross-moved for leave to amend the petition to reflect that the apartment is exempt from the Rent Stabilization Law of 1969 [*2]because tenant entered possession after a co-operative conversion. On August 2, 2006, Judge Jackman-Brown denied tenant's motion to dismiss and granted petitioner's cross-motion to amend the petition and gave tenant leave to file her answer within 10 days of that decision. Respondent's attorney served the answer on or about August 8, 2006 and filed same on August 9, 2006 (see affirmation of service by respondent's attorney and stamp of the Clerk's Office annexed to respondent's answer).

Respondent now moves for summary judgment dismissing the petition on the ground that the subject premises in located in an HDFC that obtained the building from the City of New York, subject to a deed that requires continuing City oversight and regulation through 2029, and that the government is sufficiently entwined with the subject premises to trigger constitutional due process protections before petitioner may terminate respondent's tenancy. As basis for her motion, respondent's attorney cites 512 East 11th Street HDFC v Grimmet, 181 AD2d 488 (1st Dept 1992) and 157 West 123rd St. Tenants Assn v Hickson, 142 Misc 2d 984 (App Term, 1st Dept 1989).

Respondent alleges, without contradiction, that the subject building was previously owned by the City of New York and managed by tenants through the Tenants Interim Lease Program. Paragraph 4 of the deed from the City to petitioner (see exhibit "B" to respondent's motion) specifically states that the HDFC "...shall operate the Disposition Area solely as a housing project for persons or families of low income, in accordance with Article XI of the Private Housing Finance Law." Respondent also states that the building's transfer was approved by both the Mayor's Office and the Department of Housing Preservation and Development, that the sale of the property was approved by the City Council, and that the City retains an interest in the property until July 1, 2029. Respondent's counsel argues that because of these facts, state action is involved, and consequently the government is sufficiently entwined with the subject premises to trigger constitutional due process protections.

In opposition to respondent's motion, petitioner does not deny any of the facts asserted by respondent in support of her motion for summary judgment. It merely submits its attorney's affirmation arguing that although 512 East 11th Street HDFC v Grimmet, supra, held that government involvement was sufficiently present therein to trigger due process requirements, "...that is not to say that any and all HDFC's require this pleading mandate," and that "[t]he involvement of the HDFC with the government is fact specific issue [sic] and one that is not ripe for summary dismissal or adjudication." Petitioner's counsel also asserts that this matter is not ripe for summary judgment because respondent has not yet filed her answer. This last statement is demonstrably false, as exhibited by respondent's answer in the court file stamped by the Clerk of the Court on August 9, 2006, and containing an affidavit of service dated August 8, 2006, upon petitioner's counsel.

Pursuant to CPLR 3212, a grant of summary judgment is permissible in cases where there is clearly no material and triable issue of fact presented. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957); Di Menna & Sons, Inc. v City of New York, 301 NY 118 (1950). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue, Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223 (1978).

To obtain summary judgment, the moving party must make a prima facie showing [*3]to the court that as a matter of law it is entitled to judgment in its favor. Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 (1979); CPLR 3212 (b). Once the moving party has done so, to defeat a motion for summary judgment, the burden shifts to the opposing party who now must show sufficient facts to require a trial on any issue. DiSabato v Soffes, 9 AD2d 297 (1st Dept 1959). Both parties must lay bare their evidentiary proof in admissible form. Friends of Animals v Associated Fur Mfrs., supra; Zuckerman v City of New York, 49 NY2d 557 (1980).

The role of the motion court is merely one of issue finding, not issue determination. Rose v Da ECIB USA, 259 AD2d 258 (1st Dept 1999); Pirrelli v Long Island RR, 226 AD2d 166 (1st Dept 1996). The court must view the evidence in light most favorable to the opposing party and draw all reasonable inferences in the opposing party's favor. Assaf v Ropog Cab Corp., 153 AD2d 520 (1st Dept 1989). However, mere conclusory allegations regarding the existence of questions of fact are insufficient to defeat a motion for summary judgment. Dillenberger v. 74 Fifth Avenue Owners Corp., 155 AD2d 327 (1st Dept., 1989).

Here, petitioner presents no evidence or documents disputing respondent's assertions. Rather, it merely submits its attorney's affirmation, which essentially fails to dispute any of respondent's allegations, and simply argues that the HDFC's involvement with the government "is fact specific". He presents no affidavit on anyone's personal knowledge or any documentation disputing any facts shown by respondent's supporting papers. This is entirely insufficient to defeat respondent's motion for summary judgment. Zuckerman v City of New York, 49 NY2d 557 (1980).

Respondent has abundantly shown, without contradiction, that the government is sufficiently entwined with the operation of petitioner HDFC so that constitutional due process protections are triggered before respondent can be deprived of her home. Thus, mere expiration of respondent's lease or a thirty-day notice of termination alleging no cause for eviction is insufficient as a basis for this holdover proceeding. In 512 East 11th Street HDFC v Grimmet, 181 AD2d 488, 489 (1st Dept 1992), the certificate of incorporation of the HDFC there involved stated as its purpose, "... the development of a housing project for persons of low income." The deed from the City of New York to petitioner herein, restricts the use of the premises to "...a housing project for persons or families of low income...". (See respondent's exhibit "B", paragraph 4). As in Grimmet, the HDFC may not sell or otherwise dispose of the property without prior written approval of DHPD. (See respondent's exhibit "B", paragraph 3). Indeed, this matter is indistinguishable from the very facts and circumstances involved in 512 East 11th Street HDFC v Grimmet. The subject premises in this proceeding, like the premises in 157 West 123rd St. Tenants Assn v Hickson, 142 Misc 2d 984, 985 (App Term, 1st Dept 1989), is so "entwined" with city oversight that it falls within the scope of Fourteenth Amendment due process protection. Thus, landlord must articulate a good cause basis for eviction before terminating respondent's tenancy. Notice of such reasons for eviction is required, [*4]and mere expiration of a lease is insufficient.

Here, the notice of termination states no good cause for respondent's eviction from her apartment in petitioner HDFC's building, as required by the due process clause of the Fourteenth Amendment. Rushie v Simms, NYLJ, Dec 31, 1988, p 23 col 4 (Civ Ct, Bronx Co). This predicate notice cannot be amended after commencement of the proceeding to include grounds that may constitute good cause, even if such grounds may have existed. Chinatown Apartments v Chu Cho Lam, 51 NY2d 786 (1980). Since the notice of termination herein states no good cause basis for respondent's eviction other than the expiration of her lease, and the government is so entwined with the operation of the subject building that due process protections are triggered, the notice cannot support the within holdover petition, which also states no such basis for eviction. 512 East 11th Street HDFC v Grimmet, supra; 157 West 123rd St. Tenants Assn v Hickson, supra; Rushie v Simms, supra. Accordingly, the petition must be dismissed.

For all of the above stated reasons, respondent's motion for summary judgment pursuant to CPLR 3212 is granted, and the petition is dismissed. Such dismissal is without prejudice to a new proceeding based on a notice of termination stating a good cause for respondent's eviction that satisfies the due process protection of the Fourteenth Amendment.

The foregoing constitutes the Decision and Order of this Court.

Dated: New York, New York___________________________

November 15, 2006PETER M. WENDT, J.H.C.

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