Trump Vil. Section 3, Inc. v Kiselgof

[*1] Trump Vil. Section 3, Inc. v Kiselgof 2007 NY Slip Op 52439(U) [18 Misc 3d 1106(A)] Decided on November 27, 2007 Civil Court Of The City Of New York, Kings County Fiorella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2007
Civil Court of the City of New York, Kings County

Trump Village Section 3, Inc., Petitioner,

against

Ella Kiselgof, Respondent



58404/03

Anthony J. Fiorella, J.

Petitioner commenced this holdover proceeding seeking possession of Apartment 7E at 2935 West 5th Street. The premises are a "Mitchell Lama" moderate income housing cooperative subject to Article 2 of the Private Housing Finance law. As a " Mitchell Lama" cooperative the premises are subject to the rules and regulations promulgated by DHCR. Petitioner obtained a Certificate of No Objection from DHCR allowing it to commence eviction proceedings against the respondent based on breach of the rules and regulations governing Mitchell Lama cooperatives. Petitioner now moves for summary judgment on the grounds that the certificate of eviction issued by the DHCR is res judicata in this proceeding. Respondent just recently retained new counsel in this proceeding and opposes the motion and submits a late answer.

Procedural History

In September 2001 Petitioner asked DHCR to issue a " Certificate of No Objection" allowing Trump Village to commence eviction proceedings against the respondent on various

violations of the regulations regarding waiting lists and eligibility to occupy the premises. On June 4, 2002 DHCR held a hearing concerning Respondent's unauthorized occupancy of the premises. It should be noted that Respondent was represented by counsel during the administrative hearing. While the hearing officer did not find that Respondent committed any overt fraud to obtain the apartment or would have otherwise have been financially unqualified for occupancy of the premises, the hearing officer did find that Respondent's name never appeared on the DHCR mandated waiting list, and her application for the apartment was never approved by DHCR as required by the regulations. The hearing officer found respondent's testimony vague and contradictory. No corroborative testimony from her family was elicited, although they were present at the hearing. Accordingly on October 16, 2002 DHCR issued a "certificate of no objection" authorizing Petitioner to commence a holdover proceeding to obtain possession. In March 2003 Petitioner commenced this holdover proceeding seeking possession of the premises. The matter was subsequently marked off calendar pending Respondent's amended Article 78 that was ultimately transferred to the Appellate Division 2nd Dept.

By decision dated October 31,2005 the Appellate Division affirmed DHCR's findings and dismissed Respondents appeal. The Appellate Division found that there was substantial evidence in the record to support DHCR's determination. It denied the tenant's claim of equitable estoppel, as it cannot be raised against a government agency. The decision also [*2]dismissed the tenants's claim of violation of due process as the allegations were reasonably specific and sufficient to apprise her of the charges against her and allow her to prepare a defense. This holdover proceeding was restored to the court calendar in 2007 and adjourned several times in contemplation of settlement. Petitioner moved for summary judgment. Respondent opposes the motion and attempts to submit an answer.

Discussion

Petitioner's motion for summary judgment is simply that the DHCR decision and appeal thereof constitute res judicata and Petitioner is entitled to possession of the premises. Respondent opposes the motion on several grounds. Firstly, Respondent claims that a motion for summary judgment can be made only after issue is joined, and that since Respondent has only recently filed a written answer Petitioner's motion is premature. The Court disagrees. In a holdover proceeding, the time to answer the petition is at the time the petition is to be heard. RPAPL 743. Respondent answered on the first court date of March 7, 2003 or at the latest on April 2, 2003 when the matter was set down for trial.

Respondent also claims that Petitioner failed to attach all the pleadings to the motion for summary judgment. While Respondent's copy may be missing the pleadings, a perusal of the Court file shows that the notice of Petition, Petition and termination notice is attached to Petitioner's motion as exhibit 2.

Respondent further challenges the service of the Notice of Termination and Petition and Petition. At no point does the Court file show that the matter was ever marked for traverse, only trial. The Court finds that Respondent has waived her right to raise service issues four years later.

Respondent also challenges the notice of termination as vague and insufficient. The Court disagrees. The notice of termination clearly refers to and tracks the language of the Certificate of no Objection issued by the DHCR , a copy of which was attached to the termination notice.

Respondent further claims that Petitioner cannot proceed without obtaining a" certificate of eviction". However, certificates of eviction are issued by HPD in City supervised Mitchell- Lama housing. ( 28 RCNY 3.18.(a)). The subject premises in this case is a state supervised Mitchell Lama building governed by DCHR which issues certificates of no objection ( NYCRR 1727-5.3(A).)

Respondent contends that the authorization and execution of the notice of termination is insufficient in that it fails to notify Respondent that the signatory had authority to sign on behalf of the Landlord and fails to notify Respondent who she is. Barbara Escobar, the registered managing agent signed the notice of termination. Barbara Escobar signed the occupancy agreement with respondent dated Nov. 1, 2000. Barabara Escobar testified at the administrative hearing against Respondent in 2001. For Respondent to claim that she had no idea who Ms. Escobar is disingenuous.

Respondent further alleges that rent was accepted between the termination date of February 10th 2003 and first Court appearance March 7, 2003 but does not attach any documents in support of this claim. Respondent's claim that the building is not currently registered with HPD does not prevent Petitioner from bringing a holdover proceeding. See Czerwinski v Hayes 8 Misc 3rd 89, (AT2d dept 2005), Chan v Adossa 195 Misc 2d 590 ( AT 2d dept 2003). The Court is also not persuaded by Respondent's claim of laches. This proceeding has been delayed in part for Respondent to exhaust all her administrative channels prior to proceeding in Court. [*3]Moreover, this case was adjourned several times for Respondent to obtain counsel and in attempts to settle the proceeding. There is no justification for Respondent to have thrown away her documents when she knew that there was a dispute as to her residency going back to 2001.

Respondent claims that she has constitutional due process right to have a trial. However, it is well established that determinations of administrative agencies after a hearing and appeal are entitled to preclusive effect and are not subject to collateral attack in subsequent eviction proceedings. New Amsterdam Associates v Ames NYLJ 6/8/93 P. 22 col.1 ( AT1st dept). Parisi v Hines 131 Misc 2d 582, affd 134 Misc 2d 20 (AT1st dept 1986) aff'd 134 AD2d 972 ( 1st dept 1987). The issuance of a certificate of eviction cannot be collaterally attacked in the subsequent housing court summary proceeding. See Lindsay Park Housing Corp v Grant 190 Misc 2d 777, (AT1st dept 2001), Yorkville Towers Assoc.v Mourino NYLJ 6/9/97 ( AT 1st dept) Recently the Court held in Trump Village Sec.3 v Dashevsky 8 Misc 3d 777 ( Civ. Kings 2005) that the DCHR certificate of no objection has the same effect as a certificate of eviction issued by HPD. The Court noted " as all the underlying issues that form the basis of the proceeding have already been litigated in an administrative hearing, the Housing Court becomes merely the mechanism by which a judgment and warrant can be obtained in order to proceed with an eviction. At that juncture the court is functioning ministerially without discretion, as the only method of review of the certificate ... is by an Article 78". Respondent had a full administrative hearing, represented by counsel, and appealed by means of an Article 78 which was denied.

Accordingly Petitioners motion for summary judgment is granted. Final judgment of possession in favor of Petitioner. Warrant to issue forth, execution stayed to May 15th 2008 provided ongoing use and occupancy is timely paid.

This constitutes the decision and order of the Court

_______________________

Anthony J. Fiorella, Jr. J.H.C

Dated.