Walton Ave. Senior HDFC v Santana
Annotate this CaseDecided on November 25, 2016
Civil Court of the City of New York, Bronx County
Walton Avenue Senior HDFC, Petitioner-Landlord,
against
Hiran Santana, "JOHN DOE and/or JANE DOE", Respondents-Tenants.
23920/2016
Attorney for Petitioner:
Thomas S. Fleishell & Associates, PC
561 Seventh Avenue, 19th Floor
New York, New York 10018
(212) 972-1355
Attorney for Respondent:
Stephen M. Apollo, Esq.
405 Lexington Avenue, 26th Floor
New York, New York 10174
(212) 980-2055
Diane E. Lutwak, J.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Motion to Dismiss or for Summary Judgment:
Papers Numbered
Respondent's Notice of Motion with Affidavit and Exhibits A-C 1
Respondent's Memorandum of Law in Support 2
Affirmation in Opposition with Exhibits A-D 3
Reply Affirmation 4
Upon the foregoing papers, the Decision and Order on this Motion are as follows:
This is a Holdover Proceeding brought by Petitioner Walton Avenue Senior HDFC against Respondent Hiran Santana based upon a predicate termination notice alleging substantial violation of the tenancy and lease due to Respondent's failure to obey House Rules, specifically Rule #1 which states that overnight guests "are not encouraged" and requires tenants to secure advance permission from the landlord prior to having any overnight visitors.
For the reasons set forth below, Respondent's motion is granted and this proceeding is [*2]dismissed.
PROCEDURAL HISTORY
Petitioner's attorney prepared and served on Respondent a three-and-a-half page notice, dated February 25, 2016, entitled "Thirty (30) Day Notice of Termination of Rent Stabilized and Federally Subsidized Tenancy and Notice of Material Non-Compliance with Lease and State Law". The core language of this notice, beginning at the bottom of the first page and continuing onto the second page, advises Respondent:
PLEASE TAKE NOTICE, that the undersigned, your Landlord, deems you to be in material compliance [FN1] and in substantial violation of your tenancy and your lease, specifically, Article 14 of your lease commencing March 1, 2011, as renewed, in that you have failed to obey the House Rules annexed to and made a part of your lease. Specifically, you are in violation of House Rule number 1 which reads as follows:
"1. All apartments are subsized [FN2]. Therefore only the persons whose names appear on the lease are permitted to reside in the apartment. Overnight guest are not encouraged. If for some reason you need to have an overnight guest, you must obtain permission from management at least one (1) week prior to the visit. Permission will only be given for a total of fourteen (14) days per Year"1. Upon information and belief, you have failed on not less than nine (9) occasions to obtain permission form management, at least one week in advance, to have unauthorized overnight guests in your residential unit.
2. Upon information and belief, pursuant to the nine (9) "Visiting Violation" reports, annexed hereto and made a part hereof, you have engaged in a pattern of allowing your guests to stay in your apartment past the hours outlined for guests of the residents, which is 11:00 p.m.
The notice goes on in two paragraphs towards the bottom of page two to advise Respondent that his conduct places him in violation of New York State Real Property Law § 226-b and §§ 2525.6 and 2524.3(a) of the New York City Rent Stabilization Code (RSC), that the notice was being served on him pursuant to § 2524.3(a) of the RSC, and that his conduct constitutes grounds for eviction pursuant to RSC § 2524.3(a) and (b) as well as the rules and regulations of the HUD Handbook and other federal laws governing the Section 8 Program.
Page three of the notice starts with a paragraph beginning "PLEASE TAKE FURTHER NOTICE", which advises Respondent that he was being given until March 31, 2016 "to discuss the specifics of this material non-compliance with your lease, substantial violations of your tenancy and local law and to attempt to reach an accord with your landlord and cure your default, failing which, the Landlord will seek to terminate your lease in accordance with federal and state law and the terms of your lease agreement." The next paragraph then advises Respondent that he has "until the TENTH (10th) DAY following the service of this Notice upon you to contact your Landlord to discuss your material non-compliance of your obligations as set forth herein." [*3]The next paragraph also begins with the words "PLEASE TAKE FURTHER NOTICE", and demands that Respondent vacate the premises on or before March 31, 2016 and, if he does not, summary eviction proceedings will be brought against him.
Attached to the notice are nine "Visiting Violation" report forms, each of which includes 14 fields of information to be provided: the building address, the name of the "Reporting Staff member", the date, the visitor's name, the "Sign-in Time", the tenant's name and apartment #, the "Pass Color" and "Pass #", the option of answering either "Yes" or "No" to the statements "Visitor exit the building by 11:00 PM" and "Visitor exited the building but did not return the pass", a comments section, the signature of the reporting staff member and a place to "Please indicate how many offences this tenant has in visitors Violation book" followed by the numbers 1 through 10.
The nine forms were all completed by hand, they all list Respondent as the tenant and they reflect visits by four different people on various dates. The earliest one of the nine "Visiting Violation" report forms was dated October 28, 2015 and the last one was dated December 22, 2015. Seven of the forms include specific sign-in times: 7:56 am, 3:07 pm, 3:24 pm, 7:28 pm, 8:40 pm, 9:39 pm and 10:10 pm. One form lists the sign-in time as 7:49 with no indication of am or pm. The last form, dated December 22, 2015, has a dash (" — ") for the sign-in time and in the comments section states: "Tenant permitted his visitor to go up at 12:55 AM In the morning. Tenants Excuse: Death in family."
All nine of the forms have "no" checked off after the statement "Visitor exit the building by 11:00 PM", only two indicate, in the comments section, the time (although not the date) when the visitor left (form dated 10/28/15 states: "[visitor] exited site @ 10:23 AM"; form dated 12/11/15 states: "visitor exited building at 2:25 AM"), and none of the forms includes the date and time when the reporting staff member completed the form.
The Holdover Petition was filed on April 18, 2016 with a return date of April 29, 2016. Paragraph 4 of the Petition references the Thirty Day Termination Notice, a copy of which is annexed to and incorporated by reference in the Petition. Paragraph 5 of the Petition states the grounds for the eviction proceeding: "Respondent-tenant failed to discuss with the landlord or vacate by March 31, 2016 and now holds over." Paragraph 6 of the Petition asserts that the premises are not subject to Rent Control or Rent Stabilization "because it is in a building owned and operated by a cooperative corporation. This is a cooperative apartment and the last tenant of record took occupancy pursuant to a sublease agreement subsequent to the effective date of the cooperative corporation."
On the initial return date of the Petition, Respondent appeared by counsel who then, after several adjournments, served and filed an Answer on June 21, 2016. The parties' counsel set up a briefing schedule for a motion to be filed by Respondent, which was fully submitted on November 2, 2016. In this motion, Respondent seeks dismissal of the Petition pursuant to either CPLR § 3211(a)(7) or CPLR § 3212(b) on the ground that there is no provision in the House Rules at the Walton Avenue Senior HDFC that requires guests to leave the building by 11:00 pm. Respondent also alleges that he has received no notice of any alleged violations subsequent to December 22, 2015 and that he tried on a number of occasions to meet with the building's managing agent after receiving the notice "to reach an accord in accordance with the Notice", Respondent's Affidavit at ¶¶ 13-17.
In its opposition papers, Petitioner argues that it has established a prima facie cause of action "that the Respondent violated the violating House Rules that were annexed to and made part of [*4]the lease, in particular House Rule 1 which enforces the HUD regulation that only eligible persons reside in the subject premises by requiring tenants to receive advance permission for overnight visitors, by regularly allowing visitors to stay past 11 pm and not seeking advance permission for overnight visitors, allowing visitors to remain after 11 pm and not checking visitors in." Affirmation in Opposition at ¶¶ 7 and 11. Petitioner also argues that the question of whether Respondent's or Petitioner's allegations are correct raises issues of credibility and a material question of fact that should not be considered on a motion for summary judgment. Petitioner's opposition papers also make clear that the subject premises are a not-for-profit, federally subsidized housing project for the elderly governed by Section 202 of the Housing Act of 1959 (12 USC § 1701q et seq), as amended, developed with assistance from the United States Department of Housing and Urban Development (HUD). Affirmation in Opposition at ¶ 5 and Exhibit B.
On reply, Respondent's counsel reiterates that the House Rules do not prohibit tenants from allowing their visitors to stay past 11:00 pm, and that the only reference to a visitor departure deadline of 11:00 pm appears in the "Visiting Violation" forms.
Both sides attach identical copies of the House Rules as an Exhibit to their papers, and there is no dispute as to the language of House Rule #1, which is quoted verbatim above.
DISCUSSION
On a CPLR 3211(a)(7) motion to dismiss a petition for failure to state a cause of action, "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." Guggenheimer v Ginzburg (43 NY2d 268, 275, 401 NYS2d 182, 185 [1977]). The court must accept all of the factual allegations as true, and draw all inferences favorably to the petitioner. Leon v Martinez (84 NY2d 83, 87-88, 614 NYS2d 972, 974 [1994]).
Having carefully examined all four corners of the Petition, including the predicate notice which is attached thereto and incorporated therein by reference, this Court finds no cause of action for eviction cognizable at law to have been stated. Petitioner's core claim is that Respondent has violated an alleged rule requiring tenants to ensure that their visitors leave the premises by 11:00 pm or be found in violation of its rule requiring prior approval for overnight guests. Petitioner has identified the rule to have been violated as House Rule #1, quoted it in its papers and annexed a copy of the full set of House Rules. An examination of Petitioner's House Rules reveals that they contain no specific cut-off time by which visitors must leave the building.As in Chinatown Apartments v Chu Cho Lam (51 NY2d 786, 4343 NYS2d 86 [1980]), the leading case governing the sufficiency of predicate notices, given that neither House Rule #1 nor any other authority cited by Petitioner in its predicate notice requires tenants to have their visitors leave by 11:00 pm, the predicate notice cannot serve as the basis for termination of Respondent's tenancy. In the Chinatown Apartments case, the landlord had alleged that the tenant had breached his lease by erecting a partition in his apartment in violation of certain specific clauses in his lease. However, "respondent had not in fact erected a 'partition', but rather had constructed a freestanding, cube-like structure which stood in the center of one of his rooms." In dismissing the holdover petition, the Court of Appeals held that, "Since respondent could not be expected to take remedial action by removing the 'cube' unless his landlord first demonstrated that such remedial action was required by the lease, the omission in the notice must be considered a fatal defect. Inasmuch as service of a proper notice of intention to terminate occupancy was a condition precedent to the termination of the tenancy under the lease, the deficiency in the notice [*5]deprived petitioner of a predicate for reclaiming possession of the premises." (Id., 51 NY2d at 788, 433 NYS2d at 88). The Chinatown Apartments decision dictates the outcome in this case. [FN3] Here, similarly, Respondent could not be expected to take remedial action by requiring his visitors to leave by 11 pm "unless his landlord first demonstrated that such remedial action was required by the lease" (id.).
CONCLUSION
As petitioner has failed to demonstrate that Respondent's lease forbids him from allowing his visitors to stay past 11:00 pm, the predicate notice is defective, there is no basis for this proceeding and it is dismissed. This constitutes the Decision and Order of this Court.
/s/
_________________________
Diane E. Lutwak, Hsg. Ct. J.
Dated: Bronx, New York
November 25, 2016 Footnotes
Footnote 1:This is the exact text of the notice. It is likely that Petitioner meant to say "material non-compliance".
Footnote 2:This word "subsized" is spelled and quoted here in the same manner as it appears in both the predicate notice and Rule #1 of Petitioner's House Rules, a copy of which both parties' counsel attached as exhibits to their papers (Exhibit C to Respondent's Notice of Motion and Exhibit A to Petitioner's Affirmation in Opposition). This word cannot be found in any dictionary available to the court. See fn 3, infra.
Footnote 3:If the court were not dismissing this proceeding for failure to state a cause of action due to the absence of any House Rule limiting visitors to an 11 pm curfew time, the court would dismiss it based upon the numerous defects in the Petition and predicate termination notice, incorporated by reference in the Petition. The erroneous, conflicting and confusing references in the predicate notice to (1) provisions of the Rent Stabilization Code, which does not apply to this HUD-subsidized, Section 202 housing project for the elderly; and (2) Section 226-b of the Real Property Law which governs a tenant's "Right to sublease or assign"; and the description in the Petition of the premises as "a building owned and operated by a cooperative corporation"; as well as the conflicting provisions on page three of the notice with regard to the time frame within which Respondent was required to contact Petitioner to discuss the allegations and try to reach an accord, all result in a Petition which is dismissible as it is based upon a termination notice that is "not sufficiently unambiguous to serve to trigger the applicable termination provision," Ellivkroy Realty Corp v HDP 86 Sponsor Corp (162 AD2d 238, 556 NYS2d 339 [1st Dep't 1990]), and fails to comply with Section 741(4) of the RPAPL which requires that the Petition state the facts upon which the proceeding is based. The court is also troubled by the use of the word "subsized" in House Rule #1 itself, which is quoted verbatim in the predicate notice. The word "subsized" does not appear in any dictionary available to the court and the meaning intended is unclear. It could be that Petitioner meant to use the word "subsidized"; it also could be that Petitioner meant to convey that these are "micro-apartments", whose size is less than standard.
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