777 NY Realty Inc. v Ducos

[*1] 777 NY Realty Inc. v Ducos 2007 NY Slip Op 51942(U) [17 Misc 3d 1112(A)] Decided on October 12, 2007 Civil Court Of The City Of New York, Kings County Kraus, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 25, 2007; it will not be published in the printed Official Reports.

Decided on October 12, 2007
Civil Court of the City of New York, Kings County

777 NY Realty Inc., Petitioner-Landlord

against

Mercedes Ducos, et al. Respondents



51404/2007



Eliezier B. Kraus, Esq.

Attorney for Petitioner

2405 Avenue U

Brooklyn, New York 11237

(718) 677-9523

Bushwick Housing & Legal Assistance

Attorney for Respondent

By: Stephen S. Burzio, Esq.

217 Wyckoff Avenue

Brooklyn, New York 11207

(718) 366-3800

Sabrina B. Kraus, J.

BACKGROUND

This summary holdover proceeding was commenced by 777 NY Realty Inc., (hereinafter "Petitioner") seeking to recover possession of apartment 2R at 747 Park Avenue, Brooklyn, New York, 11206 (hereinafter "subject premises") based on allegations that Respondent and occupants of her apartment have created a nuisance at the subject building based on the manner in which they dispose of and keep garbage and other specified allegations of anti-social behavior. The respondent is an 84 year old rent controlled tenant .

PROCEDURAL HISTORY

The proceeding was first on the Court's calendar on January 26, 2007. Bushwick Housing and Legal Assistance appeared on behalf of Respondent in February 2007, and served and filed a written answer dated February 28, 2007, which answer set forth two affirmative defenses and a general denial.

By Notice of Motion dated June 26, 2007, Respondent moved for the dismissal of the instant proceeding, based on the allegations, in the second affirmative defense, that the Notice of Termination was not filed with the District Rent Office in accordance with 9 NYCRR § 2204.3(c).

9 NYCRR § 2204.3(c) governs notices required prior to the commencement of a holdover proceeding against a rent controlled tenant. The section provides in pertinent part that within 48 hours of the service of the Notice of Termination upon the tenant "... an exact copy thereof, together with an affidavit of service, shall be filed with the district rent office. In computing such 48 hour period, any intervening Saturday, Sunday or legal holiday shall be excluded." Id. (Emphasis added).

The Affidavit of Service for the Notice of Termination indicates that it was served by personal delivery on Mercedes Ducos on December 27th, 2006 at 7:09 p.m.. The affidavit further alleges that " a mailing was mailed on December 28th, 2006 to DHCR..." and sets forth the [*2]address for that mailing. Therefore, under the regulation, Petitioner's time to file the Notice of Termination and Affidavit of Service with the District Rent Office, expired on December 29th, 2006, which fell on a Friday.

Respondent's motion is supported by the stamped received copy of the Notice of Termination by DHCR indicating that it was received on January 3, 2007. There is no indication at all that the Affidavit of Service for the Notice of Termination was ever served or filed with DHCR, nor is such an allegation made by Petitioner in its pleadings, or even in the cursory affirmation in opposition submitted by Petitioner's counsel to the instant motion.

Moreover, Counsel for respondent affirms that he made an inquiry of DHCR under the Freedom of Information Act, and that the results of said inquiry produced no record of any affidavit of service being attached to or enclosed with the Notice of Termination which was mailed on December 28, 2006 and received by the District rent Office on January 3, 2007.

Respondent's moving papers also underscore that the Affidavit of Service, for the Notice of termination filed with the Court in this proceeding, is dated and notorized on January 3, 2007, and thus can not possibly have been filed within the time frame provided by law.

Petitioner argues that a certified mailing of the Termination Notice on December 28, 2007 was sufficient to comply with the regulations. Petitioner cites absolutely no legal authority for this proposition.

It is a long and well established rule that the landlord's failure to allege and prove compliance with section 2204.3(c) of the New York City Rent and Eviction regulations is a fatal defect requiring dismissal of the underlying proceeding. Grant v. Morris, 18 AD2d 896 (1st Dept., 1963); Garvin v. Cole, 53 Misc 2d 647 (App. Term, 1st Dept., 1967 ); Kent-Equities Corp. v. Paez, 17 Misc 3d 127(A), 2007 NY Slip Op. 51846(U), (App. Term, 1st Dept.); Shahid v. Carillo, 8 Misc 3d 134(A), 2005 NY Slip Op. 51169(U), (App. Term, 2nd & 11th).

Given that the regulation by its plain meaning does not speak to "service" or "mailing" but specifically requires a filing at the District Rent Office within 48 Hours, the Court finds that mailing within 48 hours is not sufficient to meet the standard set out by the regulations.

Moreover, even if mailing within the 48 hour period were sufficient, given that Petitioner has failed to even allege that the affidavit of service was filed on any date, with the District Rent Office, it appears clear that Petitioner has failed to meet the necessary pre-requisites for this proceeding.

As such Respondent's motion is granted and the proceeding is dismissed.

This constitutes the decision and order of this Court.

Dated: October 12, 2007

Brooklyn, New York

_______________________

Hon. Sabrina B. Kraus

J.H.C. [*3]

Eliezier B. Kraus, Esq.

Attorney for Petitioner2405 Avenue U

Brooklyn, New York 11237

(718) 677-9523

Bushwick Housing & Legal Assistance

Attorney for Respondent

By: Stephen S. Burzio, Esq.

217 Wyckoff Avenue

Brooklyn, New York 11207

(718) 366-3800