1691 Fulton Ave. Assoc., LP v Watson

[*1] 1691 Fulton Ave. Assoc., LP v Watson 2017 NY Slip Op 50697(U) Decided on May 30, 2017 Civil Court Of The City Of New York, Bronx County Lutwak, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 30, 2017
Civil Court of the City of New York, Bronx County

1691 Fulton Avenue Associates, LP, Petitioner (Landlord),

against

Sharon Watson, Respondent (Tenant), "JOHN DOE" and "JANE DOE", Respondents (Undertenants).



58639/2016
Diane E. Lutwak, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Petitioner 1691 Fulton Avenue Associates, LP's motion to strike Respondent's Answer in its Entirety; to Strike Respondent's Defenses Pursuant to CPLR 3211(b); and to Compel Respondent's Compliance With Stipulations Dated October 19, 2016 and December 21, 2016:

Papers/Numbered

Petitioner's Notice of Motion, Attorney's Affirmation in Support & Exhibits A-N 1

Respondent's Attorney's Affirmation, Affidavit & Exhibit A in Opposition 2

Petitioner's Attorneys' Affirmations, Affidavit & Exhibits A-B in Further Support 3

Upon the foregoing papers, and for the reasons set forth below, Petitioner's motion is decided as follows.

BACKGROUND & PROCEDURAL HISTORY

This is a holdover eviction proceeding based upon Respondent-Tenant Sharon Watson's alleged violation of a substantial obligation of her tenancy. Petitioner-Landlord 1691 Fulton Avenue Associates, LP asserts that Respondent's apartment is Rent Stabilized and subject to Regulatory Agreements with the New York State Housing Finance Agency ("HFA") and the New York City Department of Housing Preservation and Development ("HPD"), respectively dated October 31, 2006 and October 10, 2006. Petition at ¶ 5. Petitioner also alleges that Respondent's apartment is a "tax credit apartment" restricted to occupancy by tenants with eligible household incomes. Petitioner terminated Respondent's tenancy by "Ten (10) Day Notice of Termination" dated September 6, 2016 (attached to the Petition and incorporated therein by reference at ¶ 4) because of Respondent's alleged failure to recertify and timely supply information pertaining to her 2016 family income, family composition and other eligibility requirements in violation of paragraph 3 of her Low Income Lease Rider and the Regulatory Agreements with HFA and HPD. Before commencing this proceeding, Petitioner gave Respondent a further opportunity to recertify by "10-Day Notice to Cure" dated August 1, 2016 (attached to the Petition and incorporated therein by reference at ¶ 4).

Respondent also has a Section 8 Housing Choice Voucher administered by the New York City Housing Authority ("NYCHA"). Attached to the Petition is a "Certification of Basis for Eviction Proceeding", with proof of service upon Respondent and NYCHA by mail on August 8, 2016, asserting Petitioner's intention to commence a holdover proceeding against Respondent for "Failure to recertify with landlord for annual tax credit re-certification, in violation of the Lease and Regulatory Agreement with NYS HFA and NYC DHPD."

The Notice of Petition and Petition, dated September 22, 2016 and noticed for October 19, 2016, were served on Respondent, according to the process server's Affidavit of Service, by conspicuous place ("nail and mail") service. The predicate 10-Day Notice to Cure and 10-Day Notice of Termination, attached to and incorporated by reference in the Petition at ¶ 4, were also both served on Respondent, according to the process servers' Affidavits of Service, by conspicuous place service.

On October 19, 2016, Petitioner through counsel and Respondent pro se adjourned the proceeding for trial or settlement to December 21, 2016 by written Stipulation under which Respondent agreed to sign all recertification documents from 2008 to the present and to provide all required income verification within 30 days. Respondent paid Petitioner $2680.70 in court, and the parties also agreed that, "When all certification and income verification are completed within 30 days, Respondent to sign her new lease offered."

On December 21, 2016 Petitioner through counsel and Respondent pro se again adjourned the proceeding for trial or settlement to February 9, 2017 by written Stipulation under which Respondent agreed to "certify today before 2 pm or tomorrow 12/22/17 [sic] @ 9:45 am." The first numbered paragraph of the Stipulation states, verbatim: "1) Respondents to jurisdiction of the Court." On February 9, 2017, due to inclement weather, the court adjourned the case to [*2]March 16, 2017. On that date Respondent appeared for the first time by counsel, who served and filed a Notice of Appearance and Verified Answer.

In her Verified Answer Respondent admits that she resides in the apartment but otherwise denies every other allegation of the Petition. Further, she asserts the following seven "Affirmative Defenses":

(1) Lack of personal jurisdiction due to defective service of process in that no reasonable application was made to serve the papers by personal delivery, no copy was left with a person of suitable age and discretion, no copy was left in a conspicuous place at the apartment, certified mail was not effectuated and Respondent received only one copy of the Notice of Petition and Petition by regular mail;(2) Lack of subject matter jurisdiction and/or failure to state a cause of action because service of the predicate Notice to Cure did not comply with Real Property Actions and Procedures Law ("RPAPL") §§ 711 and 735 and she did not receive any copies of that notice;(3) Lack of subject matter jurisdiction and/or failure to state a cause of action because service of the predicate Notice of Termination did not comply with RPAPL §§ 711 and 735 and she did not receive any copies of that notice;(4) Improper termination of her Rent Stabilized tenancy because Petitioner did not offer her a renewal lease;(5) Petitioner's recovery of any monies claimed in the Petition must be limited to a money judgment, not a possessory judgment;(6) The Petition fails to state a cause of action;(7) Breach of the warranty of habitability.

PETITIONER'S MOTION

Petitioner filed a motion returnable March 28, 2017 asking the court to strike Respondent's Answer, to strike her defenses[FN1] and to compel her compliance with the Stipulations dated October 19 and December 21, 2016. Petitioner supports its motion with its attorney's affirmation and copies of various documents[FN2] including a "Rider to Lease" dated in 2009[FN3] which [*3]its cover page indicates applies:

In a Mixed Income, Acquisition/Rehabilitation Section 236 Decoupling ProjectFinanced by Tax Exempt Bond Proceeds,and Low-Income Housing Tax Creditswith a Section 420(c) Real Property Tax Law Exemption(certain Units may be subject to certain Section 8 requirements)for an (check the appropriate box):/ / Low Income Unit Tenantor a/ x / Section 236 Unit Tenant(as respectively defined below)with respect to the Crotona Estates Apartments Project

The Rider, which references, inter alia, the October 31, 2006 Regulatory Agreement between Petitioner and the HFA, notes at ¶ 2(e) that at least 98% of the Project's 56 apartments €" 55 units - are to be rented to households with incomes at the time of initial occupancy up to 60% of the Area Median Income ("AMI") adjusted for family size, as described and defined in ¶¶ 3(a) and 3(c). All other Project apartments are to be rented to households with incomes up to 80% of AMI adjusted for family size, as described and defined in ¶¶ 3(b) and 3(c).[FN4] Apartments are designated either as "Low Income Units" or "Section 236 Units", and tenants are designated as either "60% AMI Eligible Tenants" or "80% AMI Eligible Tenants". Rider at ¶ 3(f). The Rider designates Respondent as a "60% AMI Eligible Tenant" assigned to a "Section 236 Unit". Id.

A provision of the Rider called "Maximum Rents" (¶ 4) references the applicable formulas and authorities for calculating rents to be charged to tenants of "Low Income Units" and "Section 236 Units". The Rider also includes a provision called "Certification of Income [*4]and Household Composition", ¶ 5, which requires the tenant to recertify income and provide verifying materials "annually or at such other times as HFA or Landlord shall require," and authorizes the landlord to terminate the lease and recover possession of the apartment if the tenant falsely certifies household income "on any of the screening, application or certification documents."

Petitioner argues that Respondent's Answer should be stricken as it is "utterly meritless", lacking "any factual foundation" and comprised of "bare legal statements". Affirmation in Support at ¶¶ 11-19. Regarding Respondent's first affirmative defense of lack of personal jurisdiction due to defective service of process, Petitioner argues that it was not plead with sufficient particularity, id. at ¶¶ 20-23; that Respondent waived this defense both explicitly in the December 21, 2016 Stipulation and "by her conduct in actively participating on the merits of this proceeding", id. at ¶¶ 24-32; and that the process server's affidavit conclusively establishes proper service, id. at ¶¶ 33-49. Regarding Respondent's second and third affirmative defenses of lack of subject matter jurisdiction and/or failure to state a cause of action due to defective service of the predicate Notice to Cure and Notice of Termination, Petitioner argues that a defect in service of the predicate notices does not affect the Court's subject matter jurisdiction, id. at ¶¶ 50-56; that they were not plead with sufficient particularity, id. at ¶¶ 57-59; and that the process servers' affidavits conclusively establish proper service, id. at ¶¶ 60-75. Petitioner argues that Respondent's fourth, fifth and seventh affirmative defenses (failure to renew lease; recovery of money claimed must be limited to a money judgment; breach of the warranty of habitability) should all be stricken as "meritless, irrelevant and insufficient". Id. at ¶ 97; and see id. at ¶¶ 77-96.

Finally, Petitioner asserts that Respondent "has still failed to recertify or provide any documentation to verify her income", Affirmation in Support at ¶ 102, and argues that Respondent's "blatant failure to comply with the two Stipulations, and her utter refusal to recertify or verify her income, is in violation of two court orders." Id. at ¶ 103. Petitioner requests that the Court issue an order compelling Respondent to comply with the so-ordered Stipulations of October 19 and December 21, 2016. Id. at ¶ 107.

Respondent opposes Petitioner's motion with her own Affidavit and her Attorney's Affirmation. Her attorney asserts that Respondent has lived in her apartment for approximately twenty years, that she has had a Section 8 Voucher since prior to the 2006 Regulatory Agreement, and that "her apartment is not a tax credit unit." Attorney's Affirmation in Opposition at ¶ 7.

Respondent points out as an initial matter that the motion should be denied as Petitioner failed to annex a copy of the Answer as an exhibit to the motion, Affirmation in Opposition at ¶ 16, and argues that the prong of Petitioner's motion which requests that the Answer be stricken in its entirety should be denied as it "lacks any analysis" warranting the requested relief. Id. at ¶ 18.

Respondent argues that she sufficiently plead and did not waive her first affirmative defense of lack of personal jurisdiction. Id. at ¶¶ 21-22. The sentence in the Stipulation of December 21, 2016 in which she purportedly waived the defense was "an ambiguous and incomplete sentence that is unenforceable" as it "does not contain a verb such as 'consents' or 'objects.'" Id. at ¶ 27. Further, Respondent argues that her participation in the case by signing two Stipulations, without counsel, prior to serving and filing her Answer should not be construed as a waiver of her objection to personal jurisdiction. Id. at ¶¶ 28-30. Respondent refutes [*5]Petitioner's claim that the process server's affidavit conclusively establishes proper service by describing her usual schedule and presence in her home at the times when the process server allegedly attempted personal service, Respondent's Affidavit at ¶¶ 6-8, pointing out that the process server failed to indicate that he complied with regulations requiring the use of an electronic global positioning device ("GPS"), Affirmation in Opposition at ¶¶ 37-38, and arguing that Petitioner has asserted the wrong legal standard, id. at ¶¶ 39-40.

Respondent contends that she has properly pleaded her second and third affirmative defenses challenging service of the two predicate notices. Affirmation in Opposition at ¶ 42. Again, Respondent refutes Petitioner's claim that the process servers' affidavits conclusively establish proper service by pointing to Respondent's "work schedule and daily routine of leaving for work and returning home," id., and pointing to discrepancies in the US Postal Service's tracking information for the certified mailings, id. at ¶¶ 43-45.

Regarding her fourth affirmative defense that "petitioner has not offered a renewal lease as required," and that, "[a]ccordingly, respondent's tenancy was not terminated properly," Respondent argues that this defense "challenges the purported rider to the lease". Affirmation in Opposition at ¶ 49. Regarding her fifth affirmative defense that "monies claimed in the petition must be limited to a money judgment, not a possessory judgment," Respondent asserts: "Inasmuch as petitioner's only objection to the fifth defense is the erroneous assumption that the petition does not seek a judgment for any money, petitioner's motion should be denied." Id. at ¶ 52. Regarding her seventh affirmative defense, Respondent argues that breach of the warranty of habitability is a permissible defense to Petitioner's claim for use and occupancy.

Finally, regarding compliance with the two Stipulations, Respondent argues both that she "already complied with the provisions of the stipulations relating to recertification," Respondent's Affidavit at ¶¶ 9-11, and that she should not be required to comply because she "disputes that her apartment is a tax credit unit" and that the question of whether she is required to recertify her income "is the central disputed issue in this case" to which she "is entitled to her day in court". Affirmation in Opposition at ¶ 59.

On reply Petitioner's attorney asserts that Respondent's apartment is "unquestioningly a tax-credit unit, as proven by the documentary evidence," Danescu Affirmation in Further Support at ¶ 15, and that Respondent "must follow the appropriate rules and guidelines including the provision that 'Tenant is obligated to provide such subsequent recertifications of income and verifying materials annually or at such other times as HFA or Landlord shall require' ." Id. Petitioner disputes Respondent's assertion that she did comply with the Stipulation. Affidavit in Further Support of Paola Baez at ¶¶ 8-17; Danescu Affirmation in Further Support at ¶¶ 17-29.

Petitioner attaches a copy of Respondent's Answer as Exhibit A to its reply papers and argues that the failure to attach it to the moving papers is a technical defect which should be disregarded. Danescu Affirmation in Further Support at ¶¶ 30-37.

Regarding its claim that Respondent consented to personal jurisdiction in the Stipulation of December 21, 2016, Petitioner argues that while its attorney "mistakenly omitted the word 'consents' from the text of the Stipulation", nevertheless the court allocuted the Stipulation and Petitioner's attorney Mr. Robalino, "reviewed and explained the Stipulation to Respondent at that time and it was explicitly understood that Respondent consented to the jurisdiction and Mr. Robalino explained the meaning of such consent to Respondent." Danescu Affirmation in Further Support at ¶ 43; Robalino Affirmation in Further Support at ¶¶ 1-12. Petitioner reiterates [*6]its argument that Respondent's participation in the proceeding constitutes a waiver of any challenge to personal jurisdiction, Danescu Affirmation in Further Support at ¶¶ 52-59.

Regarding Respondent's first, second and third affirmative defenses, Petitioner further defends its process servers' actions, Danescu Affirmation in Further Support at ¶¶ 60-65, and argues that Respondent's attempts to remedy her pleading defects with allegations about her work schedule and daily routine are improper, id. at ¶¶ 69-87, as are her attorney's attempts to discredit the certified mailings, id. at ¶¶ 88-95. Petitioner also asserts that "Respondent does not bother to address Petitioner's extensive caselaw stating that a process server's affidavit constitutes prima facie evidence of proper service, and bald, conclusory allegations that a party has not received process is insufficient to dispute the veracity or content of such affidavits." Id. at p. 14, ¶ 13[FN5] . Petitioner argues that "any attempt to distinguish certain caselaw of Petitioner because the motions in those cases are not motions to strike must fail as the court's holding does not hinge upon the type of motion and/or its standard of review, but rather than sufficiency of the allegations attempting to rebut the presumption of service." Id. at ¶ 68. Regarding Respondent's fourth, fifth and seventh affirmative defenses, Petitioner reiterates and elaborates on its earlier arguments that these are meritless defenses. Id. at ¶¶ 96-116.

DISCUSSION

As an initial matter, the court exercises its discretion under CPLR § 2001 to overlook Petitioner's failure to attach a copy of Respondent's Answer to its moving papers. It cannot be said in this case that a substantial right of a party has been prejudiced due to this omission; a notation on the court file jacket dated March 16, 2017 indicates that the Answer was served and filed in court that day, and that "Pet's atty accepts service of answer w/o prejudice to right to move to strike defenses". See generally Patrician Plastic Corp v Bernadel Realty Corp (25 NY2d 599, 256 NE2d 180, 307 NYS2d 868 [1970]).

CPLR § 3013 requires statements in a pleading to "be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." As noted in the Practice Commentaries, "(t)he four corners of the pleading must contain a factual basis for each of the legal elements of the claim or defense . The practitioner is cautioned to plead facts, not conclusions." David L. Ferstendig, Practice Commentaries (2017).

On a motion to dismiss affirmative defenses pursuant to CPLR 3211(b), the moving party bears the burden of demonstrating that the defenses are without merit as a matter of law. See, e.g., Vita v New York Waste Servs, LLC (34 AD3d 559, 559, 824 NYS2d 177 [2nd Dep't 2006]); Town of Hempstead v Lizza Indus (293 AD2d 739, 740, 741 NYS2d 431 [2nd Dep't 2002]). On such a motion, "defenses that consist of bare legal conclusions without supporting facts will be stricken." Robbins v Growney (229 AD2d 356, 645 NYS2d 791 [1st Dep't 1996]). However, "a defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed." Warwick v Cruz (270 AD2d 255, 255, 704 NYS2d 849 [2nd Dep't 2000][internal citation omitted]). A defense should not be stricken where there are questions of fact requiring trial. See, e.g., Atlas Feather Corp v Pine Top Ins Co (128 AD2d 578, 578-579, 512 NYS2d 844 [*7][2nd Dep't 1987]); Martense v O'Leary (40 Misc 3d 1201[A]), 972 NYS2d 144 [Dist Ct Nassau Co 2013])(denying landlord's motion to strike affirmative defense of retaliatory eviction "since issues of fact exist that can be best resolved by a full trial").

Respondent has sufficiently plead her first affirmative defense of lack of personal jurisdiction. A statement that, "The Court has not jurisdiction of the person of the defendant" has been found to be sufficiently particular to withstand a motion to strike a defense of lack of personal jurisdiction. Charbonneau v State (148 Misc 2d 981, 561 NYS2d 876 [Ct of Claims 1990], aff'd, 178 AD2d 815, 577 NYS2d 534 [3rd Dep't 1991], aff'd, 81 NY2d 721, 609 NE2d 111, 593 NYS2d 758 [1992]). See also, e.g., Noel F Caraccio, PLLC v Thomas (29 Misc 3d 1230[A], 920 NYS2d 242 [City Ct Rye 2010])(on defendant's motion to dismiss for lack of personal jurisdiction, setting case down for a traverse hearing where defendant's affidavit "specifically denies that any papers were affixed to her door"). Compare 157 Broadway Assoc, LLC v Edouard (28 Misc 3d 140[A], 958 NYS2d 62 [App Term 1st Dep't 2010])(in reversing lower court's denial of landlord's motion to strike tenant's affirmative defense of lack of personal jurisdiction, finding that "Tenant's conclusory assertions that service of the rent demand and notice of petition and petition did not comply with RPAPL § 735 were insufficient to warrant a traverse"); ST Owner LP v Adams (27 Misc 3d 139[A], 911 NYS2d 696 [App Term 1st Dep't 2010])(in affirming lower court's post-trial judgment awarding possession to landlord in a holdover proceeding, noting that the tenant's "unsworn and conclusory assertions that he was not properly served were insufficient to rebut the affidavit of petitioner's process server").

Here, while Respondent's defense begins with a conclusory assertion that "service of the notice of petition and petition was improper in that it did not comply with the provisions of Section 735 of the Real Property Actions and Proceedings Law," Answer at ¶ 3, which would be insufficient under 157 Broadway Assoc, LLC v Edouard, supra, Respondent goes on to assert that, "no reasonable application was made to serve the notice of petition and petition upon respondent by personal delivery, no copy was left with a person of suitable age and discretion, no copy was left in a conspicuous place at the apartment, and respondent did not receive a copy by certified mail," Answer at ¶ 3, and also that she "received only one copy of the petition which was sent by regular mail", Answer at ¶ 4. These sworn allegations in Respondent's Verified Answer contradict those of Petitioner's process server, thereby raising issues of fact for a traverse hearing.

The additional factual allegations presented by Respondent, Affidavit in Opposition at ¶¶ 6-8, and the arguments made by both sides about those factual allegations and the process server's affidavit, Affirmation in Opposition at ¶¶ 33-38; Danescu Affirmation in Further Support at ¶¶ 69-84, only highlight the need for a hearing at which the credibility of the witnesses can be fairly evaluated and a determination then made as to whether or not service was effectuated as required by RPAPL § 735. See P & J Hous Partners LLC v Richere (8 Misc 3d 17, 19, 797 NYS2d 687, 688 [App Term 1st Dep't 2005]).

Petitioner argues that "a process server's affidavit constitutes prima facie evidence of proper service, and bald conclusory allegations that a party has not received process is insufficient to dispute the veracity or content of such affidavits." Affirmation in Support at ¶ 35; Affirmation in Further Support at p. 14, ¶ 13[FN6] . In making this argument, however, Petitioner [*8]incorrectly cites the legal standard which applies to a CPLR 5015 motion to vacate a default judgment, not to the legal standards that apply to the pre-trial procedural posture of this case, namely CPLR Sections 3013 (statements in a pleading must be "sufficiently particular") and 3211(b) (defenses may be stricken only when they are "without merit as a matter of law", see, Vita v New York Waste Servs, LLC, supra). See, e.g., 3103 Realty LLC v Kirboy (42 Misc 3d 1205[A], 983 NYS2d 206 [Civ Ct Kings Co 2013])(noting the distinction between a tenant moving post-judgment who "must make a prima facie showing of their right to relief" and a landlord moving for pre-trial relief).

Of the eleven cases Petitioner cites in support of its position, seven are inapposite as they arise in the context of motions to vacate defaults under CPLR 5015:

€¢ Mortgage Elec Registration Sys, Inc v Schotter (50 AD3d 983, 857 NYS2d 592 [2nd Dep't 2008]) €" affirms lower court's denial of motion to vacate judgment of foreclosure and sale and finds that "[t]he affidavit of the process server constituted prima facie evidence of proper service pursuant to CPLR 308[4] and the defendant's conclusory allegations were insufficient to rebut the presumption of proper service";

€¢ 425 E 26th St Owners Corp v Beaton (50 AD3d 845, 858 NYS2d 188 [2nd Dep't 2007]) €" affirms lower court's denial of motion to vacate judgment and sale and finds that "defendant's bare denial of service was insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308[4] created by the process server's affidavit and no hearing was required";

€¢ Slimani v Citibank, NA (47 AD3d 489, 849 NYS2d 541 [1st Dep't 2008]) €" affirms lower court and finds that third-party defendant "was unable to demonstrate a reasonable excuse for his multiple and acknowledged defaults" and that "[m]ere denial of service would not rebut the presumption of proper service created by a properly executed affidavit of service," citing Fairmount Funding v Stefansky, infra;

€¢ Fairmount Funding v Stefansky (235 AD2d 213, 652 NYS2d 14 [1st Dep't 1997]) €" affirms lower court's denial of motion to vacate default judgment for lack of personal jurisdiction and notes that "the process server's affidavits, which indicate that appellants were each served in accordance with CPLR 308[4], constituted prima facie evidence of proper service, and appellants' bald assertion that they never received process was insufficient to dispute the veracity or content of the affidavits";

• Manhattan Sav Bank v Kohen (231 AD2d 499, 647 NYS2d 256 [2nd Dep't 1996]) €" affirms lower court's denial of motion to vacate judgment of foreclosure and sale without a hearing based on lack of personal jurisdiction under CPLR 5015(a)(4) and finds that "the appellant's conclusory denial of service was insufficient to dispute the veracity or content of the [process server's] affidavit";

• Pinpoint Tech, LLC v Egan (42 Misc 3d 146[A], 988 NYS2d 525 [App Term 2nd Dep't 2014]) €" affirms lower court's denial of motion to vacate default judgment for lack of personal jurisdiction under CPLR 5015(a)(4) and finds that defendant's statement "that [*9]the summons and complaint had not been properly served and that he had never received any court papers jurisdiction claim was wholly conclusory"; further, relief under CPLR 5015(a)(1) was not warranted as defendant "also proffered no reasonable excuse for his default";

• 148 Hillside, LLC v Zhong Meng Dai (244 Misc 3d 1213[A], 897 NYS2d 671 [Sup Ct Qns Co 2009]) €" motion to vacate default judgment denied under both CPLR 5015(a)(4) and 5015(a)(1) as defendant's mere denial of receipt was insufficient both to rebut the veracity of the process server's affidavit and to show that his default was excusable.

As for the other four cases Petitioner cites and discusses, none of them warrant the striking of Respondent's affirmative defense of lack of personal jurisdiction:

€¢ The critical language of the jurisdictional defense stricken in 157 Broadway Assoc, LLC v Edouard (28 Misc 3d 140[A], 958 NYS2d 62 [App Term 1st Dep't 2010]), is significantly different; while in Edouard the "[t]enant's conclusory assertions that service did not comply with RPAPL § 735 were insufficient to warrant a traverse", here, Respondent has gone well beyond a conclusory assertion of noncompliance with RPAPL § 735;€¢ In ST Owner LP v Adams (27 Misc 3d 139[A], 911 NYS2d 696 [App Term 1st Dep't 2010]), the court found the tenant's "unsworn and conclusory assertions that he was not properly served" to be insufficient to rebut the affidavit of petitioner's process server; here Respondent raises her claim of lack of personal jurisdiction in her sworn, Verified Answer and her assertions are more than conclusory;€¢ In 1106 Coll Ave, HDFC v Farmer (30 Misc 3d 1204[A], 958 NYS2d 647 [Civ Ct Bx Co 2010]), the court granted Petitioner's motion to strike Respondent's affirmative defense of improper service of a predicate notice €" not a challenge to personal jurisdiction - where Respondent acknowledged receipt by mail but denied receipt of conspicuous place delivery). This court respectfully declines to follow that non-binding ruling which relies on Fairmount Funding Ltd v Stefansky, supra, and 650 Fifth Ave Co v Travers Jewelers Corp, infra. As discussed above, the court in Fairmount Funding decided a motion to vacate a default judgment, not a pre-trial motion to strike a personal jurisdiction defense. As discussed below, the 650 Fifth Ave Co decision only discusses the question of when a traverse hearing is required in dicta, and further relies on Fairmount Funding. €¢ 650 Fifth Ave Co v Travers Jewelers Corp (29 Misc 3d 1215[A], 918 NYS2d 400 [Civ Ct NY Co 2010]), is a decision in which the court granted summary judgment to the respondent-tenants based on a defective rent demand. It is only in dicta that the court also addressed respondents' claim of defective service of process: In finding that a traverse hearing would have been required - if the court had not granted summary judgment to respondents on their claim of defective rent demand €" the court discussed Fairmount Funding, supra, noting that the competing affidavits of the process server and one of the respondents could not both be true [*10]and finding that, accordingly, a hearing would be required on respondents' claim of improper service "to determine whether what the process server swore to is true". To the extent Petitioner argues that 650 Fifth Ave Co stands for the proposition that the legal standard applicable to a post-judgment motion to vacate a default under CPLR 5015 also applies to a pre-trial motion to strike a defense of lack of personal jurisdiction due to defective service of process, this court respectfully declines to follow such reasoning.

Further, Respondent did not waive her personal jurisdiction defense in the Stipulation of December 21, 2016 that was drafted by Petitioner's counsel and which she signed at a time when she was not represented by counsel. The critical sentence in that Stipulation that Petitioner claims contains Respondent's consent to the court's jurisdiction does not include any word or phrase indicating such consent and instead states, verbatim, merely: "Respondents to jurisdiction of the Court." Petitioner's attorney acknowledges that a word is missing but asserts in his Affirmation dated May 2, 2017 that when he "reviewed and explained the Stipulation to Respondent at that time, it was explicitly understood that Respondent consented to the jurisdiction and [he] explained the meaning of such consent to Respondent." Robalino Affirmation in Further Support at ¶ 7. To the extent Petitioner is arguing that its own attorney's review of the agreement with its unrepresented adversary sufficiently compensates for the omission of a key word in the sentence under scrutiny, the argument is rejected. Further, while Petitioner's attorney also asserts that the Court in its allocution of the Stipulation "explained to her what it meant to consent to the jurisdiction of the court, and made sure that Respondent agreed to do so," Robalino Affirmation in Further Support at ¶ 9, he failed to include a transcript of that allocution, which perhaps would have shed further light on the issue. While Petitioner does correctly point out that "Respondent herself never claims in her affidavit that she did not intend to consent to jurisdiction, that she did not understand what it meant to consent to jurisdiction, or that the Stipulation was somehow ambiguous," Danescu Affirmation in Further Support at ¶ 47, based on the evidence presented on this motion the court declines to find a waiver of personal jurisdiction.

Respondent also did not waive her personal jurisdiction defense by her two court appearances prior to retaining counsel who served and filed an Answer on her behalf at the third appearance. The circumstances herein are very different from those of the first two of the three cases cited by Petitioner. In Rubino v New York (145 AD2d 285, 538 NYS2d 547 [1st Dep't 1989]), a personal injury action against the City of New York and the Board of Education, the Appellate Division found that the defendant Board of Education waived its personal jurisdiction defense where "the Corporation Counsel conducted itself as representing both the city and the Board of Education," and the Board of Education had "proceeded to trial and appeal, represented by the Corporation Counsel, without ever raising the defense of personal jurisdiction". In Taveras v City of New York (108 AD3d 614, 618, 969 NYS2d 481, 485 [1st Dep't 2013]), a wrongful death action against the City of New York, two individual lifeguards and a detective, the court found that, although it was undisputed that the lifeguards were never served with process, the City's attorney appeared on their behalf at their depositions and "their counsel's statements confirming that he was appearing on their behalf subsequent to the substitution constituted an informal appearance on their behalf and a waiver of any objection to personal jurisdiction." By comparison, here, all that happened before Respondent served and filed an Answer raising her personal jurisdiction defense were two appearances by Respondent pro se. On those first two court dates, the stipulations which Petitioner's attorney drafted adjourned the proceeding for "trial or settlement", indicating that the matter had not yet been resolved and would go to trial if it could not be settled. Respondent's conduct does not approach that of the defendants and their City government attorneys in Rubino and Taveras and does not warrant a finding that she waived her right to challenge personal jurisdiction.

Finally, Professional Billing Resources, Inc v Haddad (183 Misc 2d 829, 705 NYS2d 204 [Civ Ct NY [*11]Co 2000]), the third case cited by Petitioner on the topic of waiver, does not support its argument. Petitioner quotes from that decision for the general proposition that, "A defendant may also confer personal jurisdiction upon the court by an 'informal appearance,' which is made 'when a defendant participates in the lawsuit as a genuine actor, thereby indicating his intention to submit to the court's jurisdiction over the action.'" Id. (183 Misc 2d at 835; 705 NYS2d at 209). However, Petitioner fails to mention that the court in that case found that the defendant had not waived its objection to personal jurisdiction, even though his participation included making a pre-answer motion under CPLR Article 85 seeking security for costs to be posted by the plaintiff, a foreign corporation not licensed to do business in the State, without a contemporaneous objection to personal jurisdiction.

Respondent's second and third affirmative defenses allege that "the court lacks subject matter jurisdiction over this proceeding and/or the petition fails to state a cause of action" due to defective service of the predicate Notice to Cure and Notice to Terminate for failure to comply with RPAPL §§ 711 and 735. These defenses are stricken, for several reasons.

First, any defect in the service of predicate notices is not a matter of subject matter jurisdiction; the subject matter of this holdover proceeding lies within the court's jurisdiction, and is not undermined by any defect in the service of requisite predicate notices. 433 West Assocs v Murdock (276 AD2d 360, 715 NYS2d 6 [1st Dep't 2000]); 170 West 85th Street Tenants Ass'n v Cruz (173 AD2d 338, 569 NYS2d 705 [1st Dep't 1991]); OLR, MM, LP v Bracero (43 Misc 3d 1215[A], 988 NYS2d 524 [Civ Ct Bx Co 2014]); Katz Park Ave Corp v Olden (158 Misc 2d 541, 601 NYS2d 757 [Civ Ct NY Co 1993]).

Second, in a holdover proceeding against a Rent Stabilized tenant based upon the ground that the tenant is "violating a substantial obligation of his or her tenancy", 9 NYCRR § 2524.3(a), service of a notice to cure, id., and service of a termination notice, 9 NYCRR § 2524.2, are conditions precedent which Petitioner must plead and prove along with the other elements of its case. Respondent's denial of all allegations of the Petition except for her residency in the subject premises, see Answer at ¶ 1, is all that is needed to require Petitioner to prove these elements of its case. Second & E 82 Realty LLC v 82nd St Gily Corp (192 Misc 2d 55, 745 NYS2d 371 [Civ Ct NY Co 2002])("noncompliance with a prerequisite or the failure to plead compliance by incorporating a defective predicate notice in the petition indisputably constitutes a defense, but not one that must be pleaded affirmatively, other than by denying the petition's allegations of compliance").

Finally, the "Termination Notices" section of the Rent Stabilization Code, 9 NYCRR § 2524.2, establishes the procedures a landlord must follow before commencing an eviction proceeding, and there is no requirement that predicate notices to cure a lease violation, or terminate a tenancy for failure to so cure, be served pursuant to the RPAPL. "The Rent Stabilization Code does not specify how the notice must be served, and case law provides that either personal delivery or regular mail is sufficient." Passolo v Youssef (2007 NYLJ LEXIS 3268, NYLJ, May, 30, 2007 at p 20, col 3 [Civ Ct Kings Co], citing Mauro v Thorsen, NYLJ, Dec 4, 1991, at p 25, col 5]). See also, e.g., Shimko v Chao (28 Misc 3d 1212[A], 958 NYS2d 63 [Civ Ct NY Co 2010]); Trojan v. Wisniewska (8 Misc 3d 382, 797 NYS2d 833 [Civ Ct Kings Co 2005]).

Respondent's fourth affirmative defense that Petitioner failed to terminate her tenancy properly in that Petitioner failed to offer her a renewal lease is not a defense to this proceeding and is stricken. While landlords are required to renew the leases of Rent Stabilized tenants (except in certain limited circumstances not applicable herein), see Rent Stabilization Law § 26-511(c)(9) and Rent Stabilization Code § 2522.5(b), a landlord's failure to do so does not deprive the tenant of any rights under the Rent Stabilization Law and Code. "If a landlord fails to offer a renewal lease, the tenant does not need to take any action. The tenancy is governed by the terms and conditions of the prior lease, in addition to the protections of the Rent Stabilization Law and Rent Stabilization Code, and rent cannot be increased until [*12]a valid lease renewal is offered and has been accepted." (Andrew Scherer, Esq. & Hon. Fern A. Fisher, Residential Landlord-Tenant Law in New York, § 4:196 [2016-17 ed.]).

Respondent's fifth affirmative defense that Petitioner's use and occupancy claim is only enforceable by a money judgment, not a possessory judgment, is also stricken. One of the remedies in the event of a respondent's failure to comply with an order to pay use and occupancy is a judgment of possession. RPAPL § 745(2)(c). "The award of use and occupancy during the pendency of an action or proceeding 'accommodates the competing interests of the parties in affording necessary and fair protection to both' and preserves the status quo until a final judgment is rendered ." MMB Assoc v Dayan (169 AD2d 422, 564 NYS2d 146 [1st Dep't 1991])(citations omitted).

Finally, Petitioner's motion is denied as to Respondent's seventh[FN7] affirmative defense of breach of the warranty of habitability. Petitioner seeks use and occupancy as one of its requests for relief, and Respondent is entitled to raise a defense of breach of the warranty of habitability in response to that claim. Ruradan Corp v Natiello (21 Misc 3d 1129[A], 873 NYS2d 515 [Civ Ct NY Co 2008]). See also, e.g., 47 Thames Realty, LLC v Robinson (6 Misc 3d 1105[A], 841 NYS2d 826 [Sup Ct Kings Co 2007])(where landlord sought use and occupancy in addition to possession in ejectment action based on lease violation, tenant's counterclaim for use and occupancy permitted); King Enterprises v Mastro (2001 NY Misc LEXIS 1246, 2001 NY Slip Op 40162[U] (Civ Ct NY Co June 1, 2001)(in licensee holdover proceeding brought after death of rent controlled tenant of record, motion to strike counterclaim for breach of warranty of habitability denied where landlord sought use and occupancy); Evens v Charap (1991 NY Misc LEXIS 881 [Civ Ct NY Co Dec. 18, 1991])(in holdover proceeding against tenant who moved in after building was converted to condominium ownership, motion to strike counterclaim of breach of warranty of habitability denied where landlord sought use and occupancy). While some courts have stricken a breach of warranty of habitability defense to a holdover, see, e.g., 25 Jay St LLC v Dias (51 Misc 3d 1215[A], 38 NYS2d 833 [Civ Ct Kings Co 2016])(striking breach of warranty of habitability defense raised by respondent in a licensee holdover proceeding claiming succession rights); 129th St Cluster Assoc LP v Levy (2012 NY Misc LEXIS 5756, 2012 NY Slip Op 32988[U][Civ Ct NY Co Dec 19, 2012]); Shoshany v Goldstein (20 Misc 3d 687, 860 NYS2d 908 [Civ Ct NY Co 2008])("Breach of the warranty of habitability is not a defense that allows respondents to withhold use and occupancy over a five-year period."), even under that authority Respondent nevertheless would be permitted to "present evidence that the rent reserved should be discounted to reflect the allegedly less than habitable conditions at the premises." 25 Jay St LLC v Dias, supra. See also 129th St Cluster Assoc LP v Levy, supra (in holdover proceeding based on alleged nuisance, while striking affirmative defense of breach of the warranty of habitability, noting that "the court may consider the condition in the Subject Premises in determining fair market use and occupancy").

Petitioner in its motion also seeks to compel Respondent's compliance with the Stipulations of October 19 and December 21, 2016, specifically the provisions in which Respondent agreed to "sign all certification documents", Stipulation of October 19, 2016 at ¶ 2, and to "certify today before 2 pm or tomorrow 12/22/17 [sic] @ 9:45 am," Stipulation of December 21, 2016 at ¶ 2. However, neither [*13]Stipulation provides any clear mandate or other consequences in the event of Respondent's failure to comply. Rather, both Stipulations include provisions adjourning the case to a future date "for trial or settlement." Compare, e.g., Hotel Cameron, Inc (35 AD3d 153, 827 NYS2d 13 [1st Dep't 2006])(in a nuisance holdover proceeding, finding that lower court correctly denied tenant's motion to stay execution of warrant of eviction where tenant, after a hearing, was found to have failed to comply with two-attorney stipulation of settlement); 1029 Sixth, LLC v Riniv Corp (9 AD3d 142, 146, 777 NYS2d 122, 125 [1st Dep't 2004])(in reinstating lower court's order denying tenants' motion to compel landlord's compliance with the payment provision of a stipulation of settlement, despite their own breach of other provisions, court noted that, "The stipulation under consideration here is a lengthy and detailed document, resulting from extensive negotiation. It includes provisions advantageous to both sides. Included among those provisions are strict requirements as to the vacate date, in particular, that the failure to timely vacate would forfeit the right to payment; indeed, it specified that no delay in vacating would be considered to be de minimis."); Cates v Pivonski (50 Misc 3d 130[A], 29 NYS3d 846 [App Term 1st Dep't 2015])("In light of respondent Pivonski's undisputed failure to comply with the unambiguous payment terms of the two-attorney, so-ordered stipulation settling the underlying nonpayment summary proceeding, the court should have awarded petitioner a money judgment consistent with the stipulation's terms"); Thomas v Brown (50 Misc 3d 130[A], 29 NYS3d 850 [App Term 1st Dep't 2015])(finding that lower court should have "awarded the landlord a money judgment consistent with the stipulation's terms" in light of the tenant's "violation of the clear mandate" of the agreement).

Accordingly, and given Respondent's claim through counsel that her apartment is not subject to the Low Income Housing Tax Credit program and that she therefore is not required to recertify her income annually, Affirmation in Opposition at ¶¶ 7, 50, 55, 59, Petitioner's remedy for Respondent's alleged non-compliance with the Stipulations is simply to have the case proceed to a resolution of the case on a motion for summary judgment, see OLR, MM, LP v Bracero (43 Misc 3d 1215[A], 988 NYS2d 524 [Civ Ct Bx Co 2014]), or, if there are disputed issues of fact, at trial.

CONCLUSION

As set forth above, Petitioner's motion is granted to the extent of striking Respondent's second, third, fourth and fifth affirmative defenses and otherwise is denied. This proceeding is restored to the court's calendar for settlement or traverse and trial on July 5, 2017.

This constitutes the Decision and Order of this Court, copies of which are being mailed out to the parties' attorneys.

Diane E. Lutwak, Hsg. Ct. J.

Dated: Bronx, New York

May 30, 2017 Footnotes

Footnote 1: Although the Notice of Motion does not use the word "or", presumably Petitioner requests the relief of striking Respondent's defenses as an alternative to striking Respondent's Answer in its entirety.

Footnote 2: The documents attached as exhibits other than the "Rider to Lease" are the following: "Regulatory Agreement for the Crotona Estates Apartments Project" dated October 31, 2006 between Petitioner, HFA and 1691 Fulton Avenue Housing Development Fund Corporation ("the HDFC"), described on its cover page as a "Regulatory Agreement for HFA Multi-Family Housing Project - Section 8 Housing Assistance Payment Agreement - State of New York Mortgage Agency Insured Mortgage - Section 236 Interest Rate Reduction Payments - Additional Funds Transaction - and Low Income Housing Tax Credits"; Regulatory Agreement between Petitioner, the HDFC and HPD dated October 10, 2006, as amended by a "First Amendatory Agreement" dated September 8, 2009; Holdover Notice of Petition and Petition with predicate "10-Day Notice to Cure" and "Ten (10) Day Notice of Termination"; Stipulation dated October 19, 2016; Stipulation dated December 21, 2016; Affidavits of Service of the Petition and both predicate notices; Rent Stabilized Lease for a term commencing April 1, 2012 and ending March 31, 2015, signed on February 25, 2013 by both parties, with a monthly rent of $1641.94; Rent Stabilized Lease for a term commencing April 1, 2015 and ending March 31, 2017, unsigned, with a monthly rent of $1641.94; Resident Ledger dated March 15, 2017 for the period of December 30, 2007 through March 1, 2017, reflecting a current tenant share of the rent of $536.94 and current rent arrears of $2147.76; a NYCHA Section 8 "Tenant Profile" for the period of September 2007 through March 2017, reflecting a current "Contract Rent" of $1641.94, "Tenant Share" of $536.94, "NYCHA Share" of $1105.00, "Last Apartment Inspection Date" of December 2, 2016 and "Last Apartment Inspection Result" of "Pass"; and an HPD Multiple Dwelling Registration for 1691 Fulton Avenue in the Bronx, printed from the internet on March 24, 2017, reflecting there to be "No Violations" found at Apartment 6G and 71 "A" units in the building.

Footnote 3: The date filled in on the last page of the Rider is clear as to the day of the month ("8") and the year ("2009") but unclear as to the month.

Footnote 4: The First Amendment to the Regulatory Agreement between Petitioner and HPD reduced the fraction of the 56 Project apartments to be leased to families with household incomes up to 60% of AMI from 98% to 90.33%, that is from 55 to 51 apartments, with the remaining 5 Project apartments to be leased to families with household incomes up to 80% of AMI.

Footnote 5: This paragraph 13 on page 14 of Petitioner's Affirmation in Further Support appears to be misnumbered, as it is sandwiched between paragraphs numbered 66 and 67.

Footnote 6: See fn 4, supra.

Footnote 7: Neither party addresses Respondent's sixth affirmative defense that, "The petition fails to state a cause of action;" in the First Department, the assertion in an Answer of the defense of failure to state a cause of action, "while surplusage, as it may be asserted at any time even if not pleaded, 'should not be subject to a motion to strike'." ESRT 250 W 57th St, LLC v 13D/W 57th LLC (2016 NY Misc LEXIS 669, 2016 NY Slip Op 30353[U], aff'd, 148 AD3d 621 [1st Dep't 2017]), quoting Riland v Todman & Co (56 AD2d 350, 353, 393 NYS2d 4 [1st Dep't 1977]).