Cadillac Leasing L.P. v Kamara

[*1] Cadillac Leasing L.P. v Kamara 2023 NY Slip Op 51307(U) Decided on November 30, 2023 Civil Court Of The City Of New York, Queens County Nembhard, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2023
Civil Court of the City of New York, Queens County

Cadillac Leasing L.P., Petitioner,

against

Fatu Kamara, John Doe, Jane Doe, Respondent(s).



Index No. LT-310161-22/QU

Clifton A. Nembhard, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers/Numbered/NYSCEF Doc. No.
Notice of Motion 1 9
Exhibits/Affirmations in Support of Motion 2 9
Affirmation in Opposition to Motion 3 10
Affirmation in Reply 4 12
NYSCEF Court File 1 - 14

Upon the foregoing cited papers, the Decision/Order on Respondent's motion (Seq. 01) to dismiss the instant proceeding is as follows:

This summary holdover proceeding was commenced by Notice of Petition and Petition dated July 11, 2022, where Cadillac Leasing L.P. ("Petitioner") sought to recover possession of the subject premises located at 123-60 83rd Avenue, Apt. 5H, Kew Gardens, New York 11415. The pleadings, electronically filed on July 12, 2022, incorporate a notice pursuant to Real Property Law ("RPL") 226-C ("Notice") by reference. The Notice informed Fatu Kamara ("Respondent") that Petitioner did not intend to renew her tenancy, any prior offer(s) to extend her lease are withdrawn, and that unless Respondent removes herself from the subject premises on or before June 30, 2022, Petitioner will commence a summary proceeding. Respondent failed to surrender possession of the subject premises pursuant to the Notice.

Respondent filed a request for adjournment on September 21, 2022, asking that the matter be postponed for her attorney to appear. The appearance first scheduled on September 27, 2022, was adjourned to November 3, 2022. On November 3, 2022, Respondent filed an Answer (NYSCEF Doc. No. 7) and Queens Defenders filed a Notice of Apperance on her behalf (NYSCEF Doc. No. 8). Despite several court appearances, the parties were unable to resolve the matter. On March 21, 2023, Respondent filed a Notice of Motion (Seq. 01) seeking dismissal of the proceeding based on Petitioner's commencement of a holdover within twelve (12) months of accepting Emergency Rental Assistance Program ("ERAP") payments on Respondent's behalf. Petitioner filed opposition to the motion and Respondent filed reply. After argument on August 24, 2023, the court reserved decision on the motion.

The instant motion (Seq. 01) seeks dismissal because it is undisputed that ERAP payments were accepted on behalf of Respondent in November 2021 and it is also undisputed that this proceeding was commenced sometime in September 2022, within 12 months of acceptance of the payment. Respondent seeks dismissal but does not cite to a specific provision of the Civil Practice Law and Rules ("CPLR"). A motion to dismiss pursuant to CPLR 3211 would not be proper at juncture as it would be filed post answer after issue joined. As such, the court will treat this as a motion for summary judgment pursuant to CPLR 3212. A motion for summary judgment under CPLR 3212 "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence." Abdenbi v. Walgreen Co., 197 AD3d 1140, 151 N.Y.S.3d 368 (2nd Dept. 2021). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility". Torres v. Jeremias, 283 AD2d 484 (2nd Dept. 2001), Id. Thus, the evidence must be viewed in "the light most favorable to the nonmoving party." Stanger v. City of New York, 190 AD3d 776 (2nd Dept. 2021); Nash v. Port Washington Union Free School District, 83 AD3d 136 (2nd Dept. 2011).

It is Respondent's contention that Petitioner violated the terms of acceptance of ERAP funds as the ERAP statute states, in pertinent part, "acceptance of payment for rent... arrears under the ERAP program shall constitute agreement by the recipient landlord or property owner: ....(iv) not to evict for reason of expired lease or holdover tenancy any household on behalf of whom rental assistance payment is received for 12 months after the first rental assistance payment is received." See, L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 9 [2] [d] [iv], as amended by L 2021, ch 417, § 2, part A, § 5). See also, Ami v. Ronen, NY Slip Op 50456(U) (Appellate Term, 2nd Dep't 2023). In further support, Respondent attaches a copy of the ERAP contract between the parties, sent by letter dated November 17, 2021 (attached as Exhibit A — NYSCEF Doc. No. 9), which reads "by accepting this payment, I, the property owner, acknowledge and accept the following terms: [ . . . ] I agree not to evict for reason of expired lease or holdover tenancy any household on behalf of whom rental assistance is received for 12 months after the ERAP rental assistance payment is received [ . . . ] I agree to notify the tenant of the protections listed in this section."

Respondent states the subject premises is located within a building with more than 4 units and as such, could not be subject to an exception on eviction restriction as discussed by the Appellate Term in the Ronen decision (where a landlord allegedly sought possession of the premises for his disabled wife to occupy as her primary residence, the Appellate Term found that circumstance would "only affect the application of the ERAP statute after landlord has accepted ERAP payments"). Id.

Respondent's counsel goes on to say that Petitioner attempted to violate another provision of the ERAP agreement by attempting to raise the rent one month after accepting ERAP monies. As part of the ERAP award issued on or around November 17, 2021, Petitioner agreed not to "increase the monthly rental amount greater than the amount due at the time of the application for this program for a period of one year after the ERAP rental assistance was received." Specifically, ERAP was paid at a monthly rate of $1,650.00 and the new lease offered an option for a one- or two-year lease in December 20, 2021. See, Exhibit C — NYSCEF Doc. No. 9. The [*2]one-year lease would raise the rent by $165.00 to $1,815.00. While this case is not about rent, Respondent argues this is further proof of Petitioner's disregard of the ERAP program and its terms which has caused Respondent a lot of stress and instability.

In opposition, Petitioner vehemently disagrees with Respondent that acceptance of ERAP requires dismissal. Petitioner cites to Feuerman v. Hugo, 176 N.Y.S.3d 897 (Civ. Ct. NY Co. 2022) and The Park Cent. I LLC v. Price, 2022 WL 2317182 (Civ. Ct. NY Co. 2022), which are not binding on this court, but can be persuasive authority on this legal issue. Feuerman cites to the Price decision. Price is a licensee holdover proceeding where ERAP funds were issued to petitioner on behalf of alleged licensor-respondent and the Hon. Omer Shahid found that eviction protections upon acceptance of ERAP funds apply to all holdover proceedings, and a party can maintain a proceeding but is only prohibited from evicting for 12 months.

Petitioner questions Respondent's intentions given that she was offered a renewal lease and elected not to sign it. Petitioner avers that nothing in the ERAP statute relieves Respondent of her obligation to "accept a lease offer," and as such, Petitioner proceeded correctly by commencing this holdover. As to the increase in the rent, Petitioner defends its right to continuity of leases and rent increases even though admittedly "the rent charged" would be frozen for 12 months post ERAP.

In reply, Respondent's counsel attacks Petitioner's "plain language interpretation" of the ERAP statute as contrary to its legislative intent. Respondent points to the definitions section of the statute that established ERAP which states, in relevant part, "eviction proceeding means a summary proceeding to recover possession of real property." This, respondent argues, means agree "not to evict" is referring to commencement of an eviction proceeding, not a "stay" of execution on a warrant of eviction. Additionally, the statute delineates that "eviction proceedings for a holdover or expired lease" [ . . . ] shall not be commenced against a household until a determination of "ineligibility" is made. (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 8, as amended by L 2021, ch 417, § 2, part A, § 4). Therefore, Respondent reaches the conclusion that the legislature intentionally left out determinations of "eligibility" because if a household is eligible, an eviction proceeding would not be commenced. Lastly, Respondent disputes the facts around the offer of a renewal lease. Respondent alleges that she attempted to countersign the lease but altered the rent amount to reflect the "ERAP" terms.

The court disagrees with Respondent's contention that acceptance of ERAP completely prohibits a party from commencement of a summary proceeding. If the legislature intended that to be the case, the legislature had the opportunity to write it in the statute. The statute only prohibits commencement of a proceeding while a tenant's application is pending. Youngstar Irrevocable Trust v. Paetz, 78 Misc 3d 135(A) (Appellate Term, 2nd Dep't 2023). The court also disagrees with Respondent's assertion that the language "agree not to evict" is interchangeable with "eviction proceeding" and its definition in the statute. The legislature included the definition for eviction proceeding but chose not to use those exact terms when drafting the part of the legislation that set forth consequences of accepting ERAP funds. Accordingly, "where statutory language is clear and unambiguous, the court should give effect to its plain meaning." Overton v. Town of Southhampton, 50 AD3d 1112 (Appellate Division, 2nd Dep't 2008). A stay [*3]of execution of the warrant of eviction satisfies the plain meaning of "agree not to evict."

Petitioner does not plead this case as an owner's use holdover, nor would it qualify under that ERAP exception as the building where the subject premises is located contains more than four units. The court finds the facts of this case like those in Henry v. Murphy, 80 Misc 3d 1221(A) (Civ. Ct. Kings Co. 2023), where landlord's commencement of a holdover proceeding within 12 months of accepting ERAP warranted dismissal. The court in Murphy opined that Petitioner's acceptance of ERAP rendered their predicate notice defective because it did not apprise the respondent-tenant of the 12-month stay pursuant to acceptance of ERAP. Instead, the predicate notice in Murphy demanded that the premises be vacated within 90 days, before the 12 months expired. Murphy relies on a similar Kings County Decision, Herzl Realty LLC v. Almodovar, 79 Misc 3d 1223(A) (Civ. Ct. Kings Co. 2023), where the court applied general principles of reasonableness to the notice of termination and found it failed to include necessary information to enable respondent to frame a defense by not mentioning ERAP or the 12-month prohibition on actual "eviction" or removal by reason of holdover or expired lease.

Here, the termination notice Petitioner served on Respondent stated that unless Respondent "remove from the said premises on June 30, 2022, the Landlord will commence summary proceedings under the statute to remove you [ . . . ] for holding over after the expiration of your term." The Notice demands Respondent vacate even though Respondent should be protected from eviction and removal for "holding over" or lack of lease until November 2022. The purpose of a notice of termination is to terminate the tenancy and notify the tenant of the consequences of failure to vacate. Plainly stated, the Notice is inaccurate, misleading and overlooks the terms of acceptance of the ERAP payment. It is well established that defective predicate notices are unamendable and warrant dismissal. See, Chinatown Apts Inc v. Chu Cho Lam, 51 NY2d 786, 412 NE2d 1312, 433 NYS2d 86 (1980); London Terrace Gardens, LP v. Heller, 40 Misc 3d 135[A], 975 NYS2d 710 (Appellate Term 1st Dep't 2009). While there are issues of fact surrounding the offer of a renewal lease, the court is not convinced by Petitioner's position that offering a renewal lease, once "rejected" or not executed, changes the terms under which ERAP was paid. There is nothing in the statute that suggests such an exception, despite its "practicality." Ami v. Ronen, NY Slip Op 50456(U) (Appellate Term, 2nd Dep't 2023). The record supports a finding that the predicate notice relied upon in this proceeding is fatally defective for the reasons set forth above.

Accordingly, it is ORDERED that Respondent's motion (Seq. 01) is granted to the extent of dismissing the case, without prejudice. Respondent is directed to serve and file a notice of entry along with a copy of this Decision/Order within 3 days from the date of this Decision/Order and upload proof thereof.

This constitutes the Decision/Order of the court, a copy of which shall be uploaded to NYSCEF.

Date: November 30, 2023
So Ordered
Clifton A. Nembhard, J.H.C.