Joint Approach, HDFC v Mahoney

[*1] Joint Approach, HDFC v Mahoney 2007 NY Slip Op 52254(U) [17 Misc 3d 1134(A)] Decided on November 29, 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 As corrected in part through December 3, 2007; it will not be published in the printed Official Reports.

Decided on November 29, 2007
Civil Court of the City of New York, Kings County

Joint Approach, HDFC, Petitioner-Landlord

against

Lamontia Mahoney, Respondent-Tenant "John Doe" and "Jane Doe" Respondents-Undertenants



L & T 90148/07



Gerald M. Pigott, Esq

Attorney for Petitioner

4127 Gloria Road

Bethpage, New York 11714

(516) 731-0009

South Brooklyn Legal Services, Inc

Attorneys for Respondent

By: John C. Gray

Daniel S. Anisfeld ,of counsel

105 Court Street,

Brooklyn NY 11201

(718) 237-5500

Sabrina B. Kraus, J.

This summary holdover proceeding was commenced by JOINT APPROACH, HDFC,("Petitioner") seeking to recover possession of apartment 4 at 649 Classon Avenue, Brooklyn, New York, 11238 ("Subject Premises") based on allegations that LAMONTIA MAHONEY, the proprietary lessee, ("Respondent") was committing a nuisance by maintaining her apartment in an unsanitary condition and other related allegations.

PROCEDURAL HISTORY

The proceeding was originally returnable on September 26, 2007. The Respondent appeared herein through her attorneys South Brooklyn Legal services, Inc. And interposed a written answer through counsel asserting various defenses and counterclaims.

The first five affirmative defenses assert that Petitioner has failed to state a cause of action based on defects in the manner in which the proceeding was commenced and the predicate notice. Respondent has moved for an order dismissing the underlying petition based on these defenses, or in the alternative for discovery.

On the date of oral argument Petitioner's counsel stipulated on the record that the cause of action in this proceeding was not based on a breach of lease, or on the proprietary lease between the parties. Rather counsel stated the cause of action was based on "nuisance". Similarly Petitioner's opposition papers to the motion state in pertinent part "(t)he notice of termination does not cite any lease violation because this proceeding was commenced as a nuisance proceeding and not base (sic) upon any particular lease violation."

At argument, the Court inquired as to what other statutory or legal basis existed for a nuisance cause of action, given that the nuisance provisions of rent regulation where admittedly not applicable herein. Petitioner's counsel stated he could not respond, and requested time to submit such authority to the Court. The Court granted the request and provided that Counsel could submit any statute or case law supporting his position the next day, but that no further arguments would be considered on the already fully briefed motion. No such further authority [*2]was submitted by counsel.[FN1]

THE MOTION

For the reasons' stated below Respondent's motion to dismiss the proceeding is granted..

The underlying petition alleges that the subject premises is not subject to Rent Regulation, because the building of which it forms a part, is owned and operated by a cooperative corporation and Respondent and the terms of her occupancy are governed by a Proprietary Lease agreement. The petition further alleges that Respondent's tenancy expired on August 31, 2007 based on the Notice of Termination dated July23, 2007.

The Notice of Termination states in pertinent part:

The grounds under your proprietary lease and the laws of the State of New York upon which the landlord relies for your removal or eviction and the termination of your tenancy is the fact that you, members of your household and/or guests are committing a nuisance in the subject premises, in that:

1. There are noxious odors emanating from your apartment;

2. Said odors are cause (sic) by an unreasonable amount of garbage and waste materials being stored in your apartment and outside the door of your apartment;

3. The garbage and waste material have caused an influx of cockroaches and other vermin in the subject building creating unsanitary and unhealthy conditions for other tenants and occupants of the subject building;

4. You and your family members and/or guests in the subject premises are engaging in a course of conduct, the primary purpose of which is intended to, and which in fact does, harass the owner and/or other tenants and occupants of the building, by interfering with their comfort and/or safety.

The notice concludes by stating that Respondent's tenancy was terminated as of August 31, 2007, and that the thirty day notice of termination was "in satisfaction of your proprietary lease and New York State Law."

There is no basis independent of the Proprietary Lease for the termination of Respondent's tenancy based on nuisance, which can be supported by even the most liberal [*3]reading of the termination notice and petition herein. A nuisance proceeding can be brought pursuant to RPAPL 711 (1) against a proprietary lessee if the lease contains a limitation of the term, by reason of objectionableness of the tenant. However, in the case at bar, Counsel has stipulated on the record and argued in his opposition papers that this proceeding is not based on any such lease provision.

"Absent such a provision, there (is) no authority to terminate the tenancy and no authority to maintain a summary proceeding based upon the improper termination. Nor are the nuisance provisions of rent control or rent stabilization regulations implicated in this case since, as pleaded in landlord's petition the premises are not subject to rent regulation. Since there (is) no holdover, there is no jurisdictional basis for a possessory proceeding under Article 7 of the RPAPL. This legal defect (is) fatal to the proceeding...." Gonzalez v. Peterson, 177 Misc 2d 940, 941 (App. Term, 1st Dept., 1998)(citations omitted).

The cases cited by Petitioner in its opposition papers are not applicable to this proceeding. For example, Petitioner's reliance on Lexington Ave. Properties v. Charrier, N.Y.L.J. Jan. 29., 1986 (App. Term, 1st Dept.) is misplaced as that was a holdover proceeding commenced under the New York City Rent and Evictions Regulations, and as noted above Petitioner acknowledges that the subject premises are not subject to rent regulation.

Additionally, assuming arguendo that the Court ignored counsel's stipulation and position of record that this proceeding were not based on breach of lease, and instead looked at the predicate notice and the petition in the light most favorable to Petitioner, the result of dismissal for failure to state a cause of action would still be the same.

Even ignoring the fact that the predicate notice herein fails to identify any specific statute or lease provision on which this proceeding is based, if the Court deemed this to be a proceeding brought in accordance with RPAPL 711(1), the proceeding would be defective on its face.

Article 28 of the Proprietary Lease provides in subsection (f) that a tenancy may be terminated for objectionable conduct. However, the proprietary lease specifically provides that same may only be accomplished "... upon the affirmative vote of a majority of its board of directors at a meeting duly called for that purpose ...".

In the case at bar, the Petitioner's sole response to Respondent's statement that there is no evidence nor allegation that any such procedure occurred is the following statement in counsel' affirmation in opposition "your affirmant would not have proceeded with the instant proceeding without the direction of the Board. Therefore, it is obvious that the Board is fully behind the instant proceeding". This falls far short of even alleging compliance with the requirements of the proprietary lease.

Based on the foregoing the Court finds that there had been no proper termination of Respondent's tenancy either pursuant to statute or pursuant to the written agreement between the parties and as such the instant proceeding must be dismissed as it is defective on its face and fails to state a cause of action.CONCLUSION

In conclusion the Respondent's motion for dismissal of the proceeding is granted for the reasons stated above. The request for discover y is thus moot. This constitutes the decision and order of this Court.

Dated: November 29, 2007

Brooklyn, New York [*4]

_______________________

Hon. Sabrina B. Kraus

J.H.C.

To: Footnotes

Footnote 1:The following day Counsel for Petitioner appeared in the part, approached the Court without permission and sought to conduct an ex parte communication with the Court on further provisions in the Proprietary Lease that he alleged supported his position. On the record the Court stated that the matter was not on the Court's calendar on said date, and the only authorized additional submission was for either case law or statutory authority. The Court noted that Petitioner's counsel had admittedly provided neither, but was instead asking that the Court consider a particular portion of the Proprietary Lease (which seemed to contradict the prior stipulated position that the cause of action was not based on the lease). Despite repeated warnings by the Court to cease such improper ex parte arguments counsel for Petitioner attempted to persist and only left the Courtroom when ordered by Court and upon repeated threats of being held in contempt.