Capital Green Apts. v De Rosier

[*1] Capital Green Apts. v De Rosier 2010 NY Slip Op 52116(U) [29 Misc 3d 1232(A)] Decided on December 10, 2010 Albany City Ct Stiglmeier, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2010
Albany City Ct

Capital Green Apartments, Petitioner,

against

Patrick De Rosier, Respondent.



LT 3961-10



Edward S. Haddad, Esq.

Attorney for Petitioner

810 Madison Avenue

Albany , New York 12208

Paul A. Tighe, Esq.

Legal Aid Society of NENY

Attorney for Respondent

55 Colvin Avenue

Albany, New York12206

Gary F. Stiglmeier, J.

In this non-payment summary proceeding, petitioner landlord seeks, inter alia, a judgment of possession of respondent's section 8 apartment (see, 42 USC §1437f). Respondent appeared and moved for an order dismissing this summary proceeding based upon several alleged service and pleading defects. Petitioner opposed respondent's motion, and the matter now comes before the Court for a decision.

Respondent's first two grounds for dismissal are related: that petitioner violated RPAPL § 741(2) by failing to plead respondent's section 8 status and petitioner failed to serve the Albany Housing Authority with either a copy of the demand for rent or the notice of petition and petition in violation of 24 CFR §982.310(e)(2)(ii). There is no doubt that the within petition failed to plead that it and the predicate three day rent demand were served on the Albany Housing Authority, as required by Federal consent decree and regulation [Williams v New York City Hous. Auth., 81 Civ 1801 (SD NY 1995); 24 CFR 982.310(e)(2)(ii)]. Nor has petitioner, in opposition to respondent's motion to dismiss, submitted an affidavit showing such service upon the Albany Housing Authority. Moreover, petitioner failed to plead the tenancy's section 8 status, as required by RPAPL §741. See, Homestead Equities v Washington, 176 Misc 2d 459, 462 (Civ Ct, Kings Cnty 1998). Nor has petitioner moved to amend its petition to include such a pleading. While these requirements are not [*2]jurisdictional in nature ( UCCA §204 provides this court with "jurisdiction of summary proceedings to recover possession of real property located in whole or in part within the city" of Albany), these requirements have been found to be "essential elements" to the landlord's prima facie case. 433 West Associates v Murdock, 276 AD2d 360, 715 NYS2d 6 (1st Dept 2000) citing Jennie Realty Co. v Sandberg, 125 Misc 2d 28, 29 (App Term, 1st Dept 1984). Non-compliance with these requirements constitute defenses to the non-payment proceeding, and are grounds for dismissal if raised and not waived. 433 West Associates v Murdock, 276 AD2d at 360-361. Accordingly, the within petition is dismissed without prejudice.

So ordered.

Dated at Albany, New York

December 10, 2010

____________________________________

Gary F. Stiglmeier

Albany City Court Judge