Sultanik v Byrd

[*1] Sultanik v Byrd 2007 NY Slip Op 51087(U) [15 Misc 3d 1141(A)] Decided on May 29, 2007 Justice Court Of Town Of Ossining, Westchester County Connolly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2007
Justice Court of Town of Ossining, Westchester County

Johnnie Sultanik, Petitioner,

against

Elaine Price Byrd, Respondent.



85/07



Penelope W. Morgan, Esq.

Attorney for Petitioner

75 South Highland Avenue

Ossining, New York 10562Judith Studebaker, Esq.

Legal Services of the Hudson Valley

Attorney for Respondent

4 Cromwell Place

White Plains, New York 10601

Francesca E. Connolly, J.

Petitioner/landlord, Johnnie Sultanik, commenced this holdover proceeding to recover possession of the Section 8 leasehold premises from respondent/tenant, Elaine Price Byrd, seeking to terminate the month-to-month tenancy. Tenant moves to dismiss the petition in lieu of answering upon grounds that the notice to terminate and petition are legally insufficient and that petitioner's acceptance of rent after the notice to terminate was sent nullified the effect of the notice. Landlord opposes the motion to dismiss and maintains that it is untimely pursuant to Justice Court Act §1002.

For the reasons set forth herein, the Court finds that under the terms of the Section 8 lease between the parties and the governing federal rules and regulations, the notice to terminate is invalid because it was never provided to the Public Housing Agency (PHA) and was signed by an attorney without proof of her authority to bind the landlord in such matters. In addition, by accepting rent after the notice to terminate was sent, the landlord nullified the effect of the notice.

PROCEDURAL AND FACTUAL BACKGROUND

The relevant facts are undisputed. The parties entered into a lease under the Section 8 Tenant Based Assistance Housing Choice Voucher Program, which was executed in October of 2003. Under paragraph 6 of Part A of the lease, the initial term ended on October 31, 2004, at which time the lease automatically renewed on a month-to-month basis. The lease provides that all notices made by owner or tenant must be in writing and makes no reference to landlord's attorney or agent.

The litigants are known to this Court for more than a year as parties to several holdover and non-payment summary proceedings. In each prior proceeding, landlord's counsel represented the petitioner landlord, and the respondent appeared pro se. Each prior proceeding was [*2]resolved and the tenancy continued.

In September and October of 2006, the Director of the Village of Ossining Section 8 Program sent letters to the landlord giving notice that the Section 8 Housing Assistance Payments would be suspended because the leased unit did not comply with the minimum Housing Quality Standards for the program. From the Section 8 Payment History List, payments to the landlord were suspended from November 1, 2006 through January 31, 2007. The Section 8 payments resumed on February 1, 2007, and continued thereafter.

The tenant sent a letter to the landlord on November 1, 2006 indicating her intention to vacate the premises in thirty days, and that she was looking for other premises in which to live. This letter was never sent to the Public Housing Agency. Once the thirty-day period expired, the tenant never moved from the premises. She continues to reside in the premises and the Section 8 payments to the landlord resumed on February 1, 2007.

By letter dated January 30, 2007, landlord's attorney sent a letter to tenant terminating the month-to-month tenancy effective February 28, 2007. Landlord never provided the Public Housing Agency with a copy of the termination notice.

Landlord commenced this holdover proceeding by serving a Notice of Petition and Petition upon the tenant on March 28, 2007. The petition contains a demand that the answer be served at least three days before the petition is noticed to be heard. Neither the Notice of Petition nor the Petition alleges the regulatory status of the tenancy or compliance with applicable federal regulations. The parties adjourned the initial court date on consent from April 5, 2007 to April 23, 2007, at which time the tenant filed a motion to dismiss in lieu of answering.

DISCUSSION/ANALYSIS

Timeliness of the Motion to Dismiss

The Court finds that the motion to dismiss is timely under CPLR §§404(a) and 3211(e). A motion to dismiss may be made even after the time to answer has expired. See Kirschenbaum v. Gianelli, 63 AD2d 1057, 405 NYS2d 820 (3d Dept. 1978). The abbreviated time period under Uniform Justice Court Act §1002(a) cited by landlord is inapplicable to the facts of this case, as it only applies to a motion to dismiss a pleading where no response is required. Moreover, under the circumstances presented here, by consenting to the adjournment without limitation, landlord waived any objection to the timeliness of the motion to dismiss.

The motion to dismiss was made on the adjourned date, eighteen days after the initial noticed date. Landlord consented to the adjournment and first raised the issue of timeliness in opposition to the tenant's motion to dismiss. While jurisdictional defenses, such as the landlord's failure to plead and comply with Section 8 federal regulations, may be waived by the tenant, there [*3]was no waiver here. cf. 433 West Associates v. Murdock, 276 AD2d 360, 715 NYS2d 6 (1st Dept. 2000) (where the Court found the tenant waived any objections to the adequacy of the petition and Section 8 regulatory compliance when the motion to dismiss was filed nearly one year after entry of judgment.)

Sufficiency of the Termination Notice under the Lease and

Section 8 Tenant Based Assistance Housing Choice Voucher Program

Notice to the Public Housing Agency

Under paragraph 6 of Part A of the lease, once the initial lease term expired, the lease automatically renewed on a month-to-month basis on the same terms as the original lease. Therefore, the lease provisions remain in effect and are binding upon the parties, except for the lease term, which is changed to a month-to-month tenancy. See Greenwich Garden Associates v. Pitt, 126 Misc 2d 947, 951, 484 NYS2d 439, 442 (Dist. Ct. Nassau Co. 1984); Beneficial Capital Corp. v. Richardson, 1995 WL 324768 (S.D.NY 1995) (a holdover tenancy is presumed to continue on the same terms as the original lease unless one of the parties proves that the parties intended to change them.)

Termination of the tenancy by the owner is governed by paragraph 8 of Part B of the lease, as well as HUD requirements under 42 U.S.C. 1437f and 3535(d) and 24 C.F.R §982. Under paragraph 8(f)(1) and (2) of the lease and 24 C.F.R. §982.310(e), at or before the beginning of a court action to evict, "[t]he owner must give the tenant a written notice that specifies the grounds for termination of [the] tenancy," which notice must also be served upon the Public Housing Agency.[FN1] [*4]

A valid notice of termination is a condition precedent to the commencement of a Section 8 eviction proceeding. Homestead Equities v. Washington, 176 Misc 2d 459, 462, 672 NYS2d 980, 983 (Civ. Ct. Kings Co. 1998); Chinatown Apts. v. Chu Co Lam, 51 NY2d 786, 788, 433 NYS2d 86, 88 (1980). Unlike defects in pleadings, "defects in the notice of termination may not be cured by amendment nunc pro tunc." Id.

"It is essential that the PHA be given timely notice of the commencement of proceedings to terminate the tenancy, not only so that it does not continue to make housing subsidy payments on behalf of a tenant who is no longer in possession, but also to enable it to monitor the actions of the landlord and to afford it the opportunity to intervene if it deems it necessary to protect the interests of the Section 8 tenant." Lamlon Development Corp. v. Owens, 141 Misc 2d 287, 294, 533 NYS2d 186, 191 (Dist. Ct. Nassau Co. 1988). "[A] landlord seeking to terminate a Section 8 tenancy must serve a copy of the termination notice (or equivalent notice) on the public housing authority at the same time that such notice is served on the tenant. Failure to do so is a jurisdictional defect which precludes the maintenance of a summary proceeding." Id.

Here, the landlord never provided the Public Housing Agency with a copy of the termination notice. Since federal regulations and the terms of the lease require such notice, the petition must be dismissed.

Nor can the landlord rely upon the letter she received from the tenant on November 1, 2006 indicating her intention to vacate the premises in thirty days as a predicate for the holdover proceeding. Since the tenant never moved from the premises, and the Section 8 payments resumed, these actions signified her intention to remain in the premises. The tenant never terminated the lease and therefore, the landlord was required to commence a court action in order to evict.

Moreover, under 24 C.F.R. §982.309(c)[FN2], the tenant is also obligated to provide the Public Housing Agency with a copy of any termination notice for the same reasons the landlord is so required. Since the tenant's purported termination notice was never sent to the Public Housing Agency, it is also legally insufficient.

Notice by Attorney [*5]

The tenant also objects to the sufficiency of the termination notice because it was signed by an attorney without proof of her authority to bind the landlord. Landlord urges the Court to consider the parties' recent dealings before this Court, where the same attorney represented landlord in each prior termination proceeding against the pro se tenant, which dealings "established the tenant's knowledge of and acquiescence in the agency." White Angel Realty v. Asian Bros. Corp., 183 Misc 2d 674, 677, 706 NYS2d 583, 585 (Dist. Ct. Nassau Co. 2000). Although this argument has appeal, the regulatory authority governing termination of Section 8 tenancies by the landlord requires the termination notice to be in writing directly from the landlord. 24 C.F.R. §982.310(e)(1)(i). This regulation is the overriding consideration for the Court in assessing the sufficiency of the termination notice in this Section 8 tenancy.

In Siegel v. Kentucky Fried Chicken, 108 AD2d 218, 488 NYS2d 744 (2d Dept. 1985), aff'd 67 NY2d 792, 501 NYS2d 317 (1986), the Court of Appeals held that a notice of termination not signed by the owner or the attorney named in the lease as authorized to act for the landlord in such matters, but by another attorney with whom the tenant had never previously dealt, and which is not accompanied by proof of the attorney's authority to bind the landlord in such matters, is insufficient to terminate the tenancy. In so ruling, the Court noted the importance of a tenant being entitled "to know with safety whether the notice to terminate emanates from a person with the requisite authority, for if he acts upon such notice to vacate the premises, he may later be found to have acted at his peril should landlord prevail in a claim that the notice was unauthorized." Id. 108 AD2d at 222, 488 NYS2d at 747

Some Courts have interpreted Siegel as being limited to cases involving "the interpretation of a specific lease clause restricting the service of notice upon the tenant to the landlord alone." Zirinsky v. Violet Mills, Inc., 152 Misc 2d 538, 539, 578 NYS2d 88, 89 (Civ. Ct. Queens Co. 1991). Therefore, "[i]n the absence of a specific lease provision requiring notices from the landlord personally, Siegel does not apply, and the attorney for the landlord may sign a three-day rent demand on behalf of the landlord without the accompaniment of proof of authorization by the landlord." Id; See also Kwong v. Eng, 183 AD2d 583 NYS2d 457 (1st Dept. 1992) (three-day demand notice for past-due rent sent by landlord's attorney was legally sufficient where there was no statute or written lease between the parties requiring that the demand be signed by the landlord.)

Even where a lease provision requires notices from the landlord personally, Courts have interpreted Siegel to require "proof of authority in a notice signed by the landlord's attorney only if the attorney is a total stranger to the transaction or if the attorney is one with whom the tenant had never previously dealt." Zirinsky v. Violet Mills, Inc., supra , 152 Misc 2d at 539, 578 NYS2d at 89; See also White Angel Realty v. Asian Bros. Corp., 183 Misc 2d 674, 706 NYS2d 583 (Dist. Ct. Nassau Co. 2000) (in assessing the sufficiency of a default notice served as a necessary predicate to terminate a commercial lease, the Court may consider extrinsic evidence beyond the four corners of the notice); Brooks Drug, Inc. v. 279 Sunrise Highway, Inc., 2002 WL 1969248 (Dist. Ct. Nassau Co. 2002) (where sublandlord's attorney signed the default notice in violation of the sublease which required written notice of default from the sublandlord personally, subtenants were equitably estopped from asserting a lack of notice where they contacted sublandlord's attorney on several occasions after receiving the default notice to negotiate an extension of time to remain on the [*6]premises.)

While a tenant may be equitably estopped from raising an objection to the sufficiency of a predicate notice signed by the landlord's attorney based upon their prior conduct even where a lease provision requires notice directly from the landlord, when a statute or regulation requires such notice, there can be no estoppel.

In Wertentiel v. Coe, 132 Misc 2d 216, 503 NYS2d 692 (Civ. Ct. NY Co. 1986), the Court held that where the rent control statute required notice from the owner or lessor, a termination notice signed by the landlord's attorney unaccompanied by proof of the attorney's authority to bind the landlord was legally insufficient. In Wertentiel, the Court noted that there was no lease between the parties and Real Property Law §232-a, which governed termination of the month-to-month tenancy, permitted the termination notice to be sent by the landlord's agent. Unlike the present case, the landlord made no claim that the tenant knew the attorney that signed the notice. Nevertheless, the overriding factor for the Court was the Rent Law governing rent control leaseholds, which required notice emanating only from the "owner" or "lessor."

Real Property Law §232-b, which governs notification to terminate month-to-month tenancies outside the City of New York, has no prescribed form to terminate a tenancy. "The notice can be oral or written, and may be served personally or otherwise, all that is required is that the notice be timely, definite and unequivocal." Dell v. Latouche, 2 Misc 3d 1007, 784 NYS2d 920 (Dist. Ct. Nassau Co. 2004) "The true test of the sufficiency of such notice is: Has the landlord or the tenant notified the other at least one month before the expiration of the term of his election to terminate. The evidence that establishes such notification could be any logically probative evidence." Monaghan v. Kane, 186 Misc. 698, 59 NYS2d 892 (NY Co. Ct. 1946).

Although the notice sent here by the landlord's attorney may be sufficient under Real Property Law §232-b, the tenancy is also governed by Section 8 federal rules and regulations and a corresponding written lease, which are much more restrictive in their notice requirements. Neither the Section 8 federal rules and regulations nor the written lease between the parties gives an attorney or agent authority to bind the landlord in matters relating to termination. Under the terms of the lease and 24 C.F.R. §982.310(e), the "owner must give the tenant a written notice that specifies the grounds for termination of tenancy during the term of the lease." The regulation further states that "the tenancy does not terminate before the owner has given this notice."

Where a regulatory statute governing notice speaks only of notice emanating from the "owner," a termination notice signed by an attorney without accompanying proof of authority to bind the landlord in the giving of such notice is legally insufficient, even where the tenant had prior dealings with the landlord's attorney. Accordingly, in the present case, the termination notice sent by landlord's attorney unaccompanied by proof of her authority to bind the landlord was legally insufficient and the petition must be dismissed.

Acceptance of Rent after the Expiration of the Termination Notice

"[A] landlord who accepts rent during the period after the effective date of the notice [*7]of termination and before the commencement of a holdover proceeding waives his or her right to evict the tenant based on the grounds as stated in the notice of termination." 2657 East 68th Street Corp. v. Bergen Beach Yacht Club, 161 Misc 2d 1031,1032, 615 NYS2d 858, 859 (Civ. Ct. Kings Co. 1994). In Associated Realties v. Brown, 146 Misc 2d 1069, 1070, 554 NYS2d 975, 976 (NY City Civ. Ct. 1990), the Court stated:

The acceptance of rent for a period after expiration of the notice sends the tenant a message contrary to that contained in the notice. . . . On the one hand landlord requires tenant to leave, and on the other, accepts rent for a period after surrender is demanded. This can easily imply to tenant that she need not surrender the premises, but may continue in possession. By such acceptance of rent for the period between the expiration of the notice and commencement of the proceeding, landlord therefore nullified the effect of the notice.

Here, the termination notice was sent on January 30, 2007, and the holdover proceeding was commenced on March 28, 2007. The Section 8 Payment History List indicates that although the payments were suspended from November 1, 2006 through January 31, 2007, they resumed on February 1, 2007 and continued thereafter. Section 8 housing assistance payments are considered rent (Greenwich Garden Associates v. Pitt, supra , 126 Misc 2d at 954-955, 484 NYS2d at 444-445) and there is no indication that petitioner rejected these payments. Thus, by accepting these rental payments in between the time the notice was sent and the commencement of the holdover proceeding, petitioner nullified the effect of the notice, requiring dismissal of the petition.

CONCLUSION

Under the terms of the Section 8 lease between the parties and the governing federal rules and regulations, the notice to terminate is invalid because it was never provided to the Public Housing Agency (PHA) and was signed by an attorney without accompanying proof of her authority to bind the landlord in such matters. In addition, by accepting rent after the notice to terminate was sent, the landlord nullified the effect of the notice.

Respondent's motion to dismiss is granted and the petition is dismissed.

The foregoing constitutes the Decision and Order of the Court.

Dated:May 29, 2007

________________________________

Hon. Francesca E. Connolly

Town Justice

To: Footnotes

Footnote 1: 24 C.F.R. §982.310(e) provides:

Owner notice(1) Notice of grounds.

(i) The owner must give the tenant a written notice that specifies

the grounds for termination of tenancy during the term of the lease. The

tenancy does not terminate before the owner has given this notice, and

the notice must be given at or before commencement of the eviction

action.

(ii) The notice of grounds may be included in, or may be combined

with, any owner eviction notice to the tenant.

(2) Eviction notice. (i) Owner eviction notice means a notice to

vacate, or a complaint or other initial pleading used under State or

local law to commence an eviction action.

(ii) The owner must give the PHA a copy of any owner eviction notice

to the tenant.

Footnote 2: 24 CFR §982.309 (c) provides:

Family responsibility. (1) If the family terminates the lease on

notice to the owner, the family must give the PHA a copy of the notice

of termination at the same time. Failure to do this is a breach of

family obligations under the program.

(2) The family must notify the PHA and the owner before the family

moves out of the unit. Failure to do this is a

breach of family obligations under the program.