501 W. 41st St. Assoc. v Annunziata

[*1] 501 W. 41st St. Assoc. v Annunziata 2013 NY Slip Op 51922(U) Decided on November 20, 2013 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Schoenfeld, Hunter, Jr., JJ
570875/12.

501 West 41st Street Associates, LLC, Petitioner-Landlord-Respondent,

against

Frank Annunziata, Respondent-Tenant-Appellant, -and- "John Doe" and/or "Jane Doe," Respondents-Undertenants.

Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (Peter M. Wendt, J.), entered June 19, 2012, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding. The appeal brings up for review so much of an order of the same court (Brenda Spears, J.), dated June 24, 2010, as denied tenant's pretrial motion to dismiss the petition for failure to state a cause of action.

Per Curiam.

Final judgment (Peter M. Wendt, J.), entered June 19, 2012, affirmed, with $25 costs.

Giving due deference to the trial court's detailed factual findings and its negative assessment of the credibility of tenant and his witness, we sustain the possessory judgment awarded in favor of landlord on the holdover petition. A fair interpretation of the evidence supports the court's express finding that tenant was in "material noncompliance" with the lease since he failed to disclose tens of thousands of dollars in funds in joint accounts (held with his mother in a New Jersey bank) on his initial 2002 application for the low income, subsidized tenancy at issue, as well as income from these assets on his 2003-2006 annual income certifications. Pursuant to the relevant federal regulations (see HUD Handbook 4350.3 REV-1, § 5-7[D]) and New York law (see Banking Law § 675), tenant is deemed to own one-half of the money deposited in these accounts, and the result would be the same if, as tenant argues, New Jersey Law is applied (see NJSA §§ 17:16I-3; 17:16I-4[a]; see also Derman v Dreznick, 227 NJ Super 264, 268 n 1 [1988]). The trial evidence firmly established that had tenant's assets been properly disclosed on his initial 2002 application, he would have been ineligible for the housing [*2]accommodation here at issue.

The underlying notice of termination was facially sufficient, as it fairly stated the nature of landlord's claim and the facts necessary to establish the existence of grounds for eviction (see Oxford Towers Co. v Leites, 41 AD3d 144 [2007]). A notice to cure was not required, since
tenant's failure to disclose assets in an amount which would have rendered him ineligible for the tenancy is not capable of cure.

We have considered tenant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ODER OF THE COURT.
Decision Date: November 20, 2013