Hudson Riv. Hous. v Griffin

[*1] Hudson Riv. Hous. v Griffin 2020 NY Slip Op 51594(U) Decided on January 11, 2020 City Court Of Poughkeepsie, Dutchess County Volkman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 11, 2020
City Court of Poughkeepsie, Dutchess County

Hudson River Housing, Petitioner-Landlord,

against

Lydia Griffin, Respondent-Tenant.



LT-213-20



Law Office of Vincent Catalano

Attorneys for the Petitioner

4 Liberty Street, Suite 2

Poughkeepsie, NY 12601

Chianti Lewis, Esq.

Justin L. Haines, Esq.

Legal Services of the Hudson Valley

Attorneys for the Respondent

331 Main Street, Suite 200

Poughkeepsie, New York 12601
Scott L. Volkman, J.

This holdover matter proceeded to trial on March 3, 2020, October 23, 2020, and concluded on November 20, 2020 (both before and during the COVID-19 pandemic), at which time the Petitioner-Landlord was represented by Vincent J. Catalano, Esq., and the Respondent-Tenant was represented by Chianti Lewis, Esq. and Justin Haines, Esq. of Hudson Valley Legal Services. Petitioner called the following witnesses in support of its claim that it is entitled to judgment and a warrant of eviction: Douglas Otto, Phillip Russo, Ebony Parker, and Kim Cipriano, Hudson River Housing's Housing Manager. In opposition, respondent called Mary Linge, Director of Hudson River Housing, in defense of the eviction proceeding. The Respondent-Tenant, Lydia Griffin, appeared on March 2, 2020, but failed to appear for the continued trial on October 23, 2020, and November 20, 2020. The issues for trial were narrowed [*2]to 1) whether respondent's behavior constituted a material violation (serious or repeated violation of the terms and conditions of her lease, Paragraph XII(2) which gave petitioner the authority to terminate her tenancy if, in the judgment of the landlord, said tenant represents a threat to the safety and/or reasonable comfort of said tenant, staff, and/or the other tenants; and 2) whether the property was federally subsidized with HOME funds such that the petition needed to plead the regulatory status and provide respondent a 30-day termination notice pursuant to 24 C.F.R. 92.253(c) or not. Having heard the testimony of the witnesses, reviewed the evidence, considered the parties' post trial memorandums of law, and having duly deliberated upon same, the Court now finds and determines the matter as follows:

BACKGROUND

Petitioner personally served respondent with a Notice of Lease Termination on January 20, 2020,[FN1] on the grounds that respondent materially violated twenty-six (26) terms of her lease. See Trial Exhibit 1. On January 23, 2020, petitioner filed a holdover proceeding by Order to Show Cause seeking an immediate order granting petitioner judgment for possession of the subject premises, and granting petitioner a warrant of eviction to remove respondent from the subject premises. The Order to Show Cause was returnable January 29, 2020, at which time petitioner appeared to prosecute the action, and respondent failed to appear. A default judgment for possession only was entered against the respondent together with a warrant of eviction. Approximately two (2) weeks later, on February 13, 2020, respondent filed a pro se Order to Show Cause to stay the issuance or execution of the warrant, or alternatively, to vacate the judgment and warrant. The Order to Show Cause was returnable on February 20, 2020, at which time Legal Services of the Hudson Valley appeared for the first time on behalf of the respondent, and the parties consented to vacatur of the default judgment. Via written Decision and Order, dated February 25, 2020, the default judgment was vacated on consent, the matter was restored to the calendar, and the parties were ordered to appear ready for trial on March 4, 2020. Due to calendaring conflict, the trial was rescheduled for March 3, 2020. The day before the trial (3/2/2020), respondent's counsel sought an adjournment because respondent had a long standing medical appointment for March 3rd. Respondent's request was denied on the grounds that medical documentation was not provided. On the trial date, petitioner appeared ready to proceed with testimony of several witnesses, at which time respondent filed a motion for discovery and depositions of witnesses pursuant to C.P.L.R. § 408. Petitioner opposed the motion on the grounds that it was untimely, and argued that on the last court date (2/20/2020) respondent's counsel had been invited to inspect petitioner's records prior to the trial date, but counsel failed to avail himself and inspect the records. Petitioner contended that the property was not subject to HUD Regulations, and that even if it was funded by HUD, respondent materially violated the lease for which she is not entitled to additional notice prior to being removed. The Court granted the respondent's motion in part, via Decision and Order, dated March 6, 2020. Thereafter, [*3]respondent moved to be relieved as counsel and to have a guardian ad litem appointed. A hearing on this was held on September 2, 2020, and both respondent's applications (to be relieved and guardian ad litem appointed) were denied via Decision and Order, dated October 8, 2020. The trial that had commenced on March 3, 2020 (before COVID-19 pandemic), was continued on October 23, 2020 (during the COVID-19 pandemic), and concluded on November 20, 2020. Both parties submitted post-trial memorandums in support of their positions.

TRIAL FACTS

Mr. Douglas Otto testified that he lives in the same building as the respondent at 36 Bement Avenue, Apartment No.4, and has lived there for approximately four (4) years. He has experienced multiple incidents involving the respondent that has caused him to feel afraid and threatened. He testified that there were so many incidents that he could not recall them all, but testified that respondent would incessantly ring his doorbell at all hours of the day and night, screaming obscenities at him (i.e: "mother fucker; white welfare trash; I'm gonna kill you; you'll all be homeless"). Respondent would regularly threaten him, bang on the ceiling and wall so hard his clock would fall off the wall, throw kitchen trash bags into the hallway, toss things off the porch at him, and repeatedly slam the doors. On one particular occasion, he testified that when he confronted her about her behavior, she swung to punch him, grabbed his arm, and tried to force herself into his apartment. He had to physically move her away from his door to close it. As a result of her actions, Mr. Otto suffered visible bruises to his arm.

Phillip M. Russo testified that he has lived at 36 Bement Avenue, Apt. 1 for sixty years. The respondent moved in next to him approximately three years ago. On November 14, 2019, Mr. Russo testified that he witnessed the respondent throwing furniture, chairs, buckets, bags of garbage, and a broom into their common backyard where the children play. He testified that he has witnessed respondent exhibit this type of behavior on a number of occasions and at least six times within the past year. He also testified that he witnessed the respondent throw a frying pan at Douglas Otto and saw her destroy his garden in the backyard with her broom.

Ebony Parker testified that she has lived at 36 Bement Avenue, Apt. 2 for approximately one year and that the respondent lives on the same floor. On December 5, 2019, as she was returning home to her apartment with her seven-year-old daughter, the respondent was standing outside and started loudly cursing at her saying, "Fuck you; you bitch". Ms. Parker testified that she deals with this type of behavior by the respondent all the time, and that respondent also rings her doorbell at all hours of the day and night for no reason, throws garbage in front of her door, has thrown garbage at her niece and curses in front of her seven-year-old daughter and her friends. Ms. Parker testified that she has called the police on three or four occasions and reported these incidents with the police.Mrs. Kim Cipriano, Hudson River Housing's Senior Housing Manager, testified that respondent left numerous messages on her office machine all hours of the day and evening to lodge complaints about the unit using foul language and calling her a "bitch". Mrs. Cipriano testified that respondent was sent a 10-day notice and a 6-day notice terminating her tenancy based upon material non-compliance with the lease.

Ms. Mary Linge, Director of Hudson River Housing, testified that Hudson River Housing's mission is to provide affordable housing to people who need it. Hudson River Housing applied for and was awarded federal funds in 2017 to rehabilitate the premises in question. However, the process was slow and no money was ever put into 36 Bement Avenue. [*4]Instead it went to the Church Street property first, in or around January 2020, and then COVID-19 hit. As such, since Hudson River Housing never completed the rehabilitation that they intended to on 36 Bement Avenue, the project does not fall under the federal regulations. Ms. Linge made reference to the agreement Hudson River Housing entered into on February 7, 2019, with the Housing Trust Fund Corporation for the NYS Home Program Small Rental Development Initiative. Trial Exhibit B. Respondent's counsel reserved the right to recall Ms. Linge if the document did not confirm her testimony. At the continued trial of this matter, Ms. Linge had pneumonia and could not be produced. As such, the petitioner stipulated that the SDRI/HOME Regulatory Agreement could be entered into evidence. Trial Exhibit B.

LEGAL ANALYSIS AND CONCLUSION

Due process requires that a Court hold a hearing permitting the tenant to have a trial on the issues prior to reaching judgment. The petitioner bears the burden of proof, and must prove a prima facie case by a preponderance of the evidence. SCHERER, RESIDENTIAL LANDLORD AND TENANT IN NEW YORK, § 1:32, 2008-09 ed.Antillean Holding Co., Inc. v. Lindley, 76 Misc 2d 1044 (NY City Civ. Ct. 1973); Moss v. Hirshtritt, 60 Misc 2d 402 (NY City Civ. Ct. 1969). In turn, the respondent bears the burden of proof with respect to affirmative defenses. Id. Furthermore, the rules of evidence set forth in Article 45 of the C.P.L.R. apply in summary eviction proceedings and should be strictly adhered to in trials. SCHERER, RESIDENTIAL LANDLORD-TENANT LAW IN NEW YORK, 2008-2009 ed., § 14:41. Allegations in the petition that are part of the petitioner's prima facie case and are not admitted must be proven by the petitioner. Scott v. Christian, 60 AD2d 117 (2d Dept. 1977).

A. The Federal Regulations are inapplicable because the "Term" of the Regulatory Agreement had not commenced.

The Federal Regulations are inapplicable because the "Term" of the Regulatory Agreement had not commenced. Hudson River Housing sought funds from New York State to rehabilitate three (3) buildings, including respondent's (36 Bement Avenue) as part of the NYS Home program Small Rental Development Initiative (SRDI). The Agreement states that all federal laws and regulations for HOME funds described in 24 C.F.R. Part 92 must be complied with during the "Term" of the agreement. The "Term" or "POA" of the Agreement was not in effect at the time respondent was served with the "Notice of Lease Termination". This is made clear by virtue of the fact that the "Term" of the Agreement is set forth in its own designated paragraph within the Regulatory Agreement between the Housing Trust Fund Corporation and Hudson River Housing. Trial Exhibit B, ¶ 3. The Agreement provides as follows:

3. Term

The Regulations [FN2] required the HOME assisted rental dwelling units to remain under a Period of Affordability ("POA") for fifteen (15) years. This period represents the affordability restriction required by the U.S. Department of Housing and Urban Development ("HUD") for the use of the NYS HOME funds pursuant to 24 C.F.R. 92.252(e). The POA shall take effect upon [*5]project completion as defined by the Regulations and upon recordation of such completion in HUD's Integrated Disbursement and Information System ("IDIS") by HTFC. After the completion of the POA, this Agreement shall be of no further force or effect. Trial Exhibit B, ¶ 3.

It is undisputed by the parties that the project was never completed nor was it recorded as completed in IDIS by the Housing Trust Fund Corporation.[FN3] As such, the "Term" as set forth in the Regulatory Agreement [respondent's Exhibit B] had never commenced because the POA had not taken effect since rehabilitation at 36 Bement Avenue was never completed nor had HUD'S IDIS registered the project as completed. Since both conditions were not satisfied, the "Regulations" under 24 C.F.R. Part 92, including the requirement for a 30-Day Notice of Termination - which respondent relies pursuant to 24 C.F.R. § 92.253, are inapplicable. This Court is not persuaded by respondent's argument that there are two separate periods applicable to the Agreement. The POA is defined within the paragraph which sets forth precisely the "Term" of the Regulatory Agreement, and only contemplates one time frame: when the project is completed and is recorded as completed in HUD's Integrated Disbursement and Information System ("IDIS") by HTFC.

As such, since the subject premises do not have a regulator status, petitioner was not required to plead this in its petition, nor give respondent a 30-day Notice of Termination.

B.Petitioner established by a preponderance of the evidence serious or repeated violations of the respondent's lease warranting termination of the tenancy with less than 30 days notice.

Petitioner established by a preponderance of the evidence serious or repeated violations of the respondent's lease warranting termination of the tenancy with less than 30 days notice. The lease between the parties was for a term of one year commencing on June 1, 2019, and ending May 31, 2020 [Trial Exhibit 2, ¶ II(1)], which petitioner sought to terminate based upon respondent's material violations. In relevant part, the lease sets forth various obligations of the tenant, which include: keeping the unit and common areas clean and sanitary; not litter the grounds or common areas of the premises; not create any conditions on the premises that pose a threat to the health or safety of any person(s), refrain from verbal and physical aggression on other tenants within the property, demonstrating the ability to live harmoniously with others; not participate in any criminal activity. Trial Exhibit 2, ¶ VI (4),(9),(13),(24),(27).

The lease also reserves the right for the landlord to terminate the lease for any violation of material terms of the lease, and "to discharge the tenant immediately from the premises, if, in the judgment of the landlord, said tenant represents a threat to the safety and/or reasonable comfort of said tenant, staff and/or the other tenants." Trial Exhibit 2, ¶ XIII (1), (2). Importantly, it provides that the landlord must only provide 30 days notice of its intention to terminate the lease, when the basis for same does not constitute material noncompliance.

Here, the evidence introduced at trial demonstrates material noncompliance with the terms of the lease. Mr. Otto's testimony, Mr. Russo's testimony, Ms. Parker's testimony, and [*6]Mrs. Cipriano's testimony, together with the detailed accounting of the material violations set forth in the Notice of Termination [Trial Exhibit 1, pages 1-2], reasonably set forth, in the judgment of this Court, that the tenant represented a threat to the safety and/or reasonable comfort of the staff and other tenants. Indeed, within a five-month span, the respondent committed at least eighteen criminal acts against neighboring tenants within or on the premises. There was uncontroverted testimony that respondent attacked, assaulted, and threatened to kill Mr. Otto. She terrorized a minor child of another tenant. There was uncontroverted evidence that she disrupted the quiet enjoyment of other tenants by littering, cursing, throwing things, banging, slamming doors, and ringing doorbells all hours of the day and night for no legitimate purpose. Likewise, she would constantly call and verbally harass the staff by using foul and abusive language. Taken together, respondent's actions were both serious and repeated violations of the lease agreement which disrupted the quiet enjoyment of the other tenants to live peaceably.

The Court notes that before initiating this proceeding, the evidence introduced showed that the respondent was given multiple written warnings prior to ever being served with a Notice of Termination of the lease, dated January 17, 2020. Petitioner issued respondent her first written warning that she was in violation of various provisions of her lease. The notice was entitled, "Warning Notice October 4, 2019" and detailed a September 29, 2019 incident when she attempted to physically assault Mr. Otto and forced her way into his apartment; and that she was littering on the property by throwing items in the back and front yards. Trial Exhibit 1, pages 3-4. Respondent's first written warning was followed by a "Ten (10) Day Notice to Cure", dated December 9, 2019, and served upon respondent on December 11, 2019. Trial Exhibit 1, pages 5-6. The Notice to Cure highlighted continuing complaints about respondent's littering, her verbally abusing other tenants, ringing doorbells, and slamming doors. The Notice to Cure directed respondent to cease violating the terms of her lease and warned her that her failure to do so would result in the termination of her tenancy. Trial Exhibit 1, pages 5-6. Respondent was served with multiple written warnings to correct her behavior prior to ever being served with the instant petition.

This Court finds that petitioner has met its burden of proof in demonstrating a prima facie case of material noncompliance with the terms of the lease by a preponderance of the evidence, and that its "Notice of Lease Termination" was adequate - and a 30-day notice was not required. Respondent's conduct constituted "serious and repeated violations of material terms of the lease" that continued throughout her tenancy and were likely to continue in the future. Moreover, petitioner was not bound to plead the regulatory status of the property in the petition under R.P.A.P.L. § 741(4) because the Federal Regulations governing HOME Investment Partnership Programs was inapplicable at the time the "Notice of Lease Termination" was served. In turn, the respondent has failed to meet her burden of proof with respect to any affirmative defenses.

THEREFORE, based upon the foregoing, it is now,

ORDERED, that petitioner's application for an immediate judgment is GRANTED with an immediate warrant of eviction; and it is further

ORDERED, that the Clerk is directed to ensure that the warrant of eviction to be enforced by the Sheriff shall reflect the following language: "That the tenant is ineligible for a stay under the 'COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020' based upon this Court's finding that the tenant has engaged in persistent and unreasonable behavior that [*7]substantially infringes on the use and enjoyment of the other tenants or causes a substantial safety hazard to the other tenants residing on the premises, including the following: defendant repeatedly curses and verbally abuses other tenants and children in the building, physically assaults other tenants, rings other tenants' doorbells and slams doors repeatedly and at all hours of the day and night, destroys other tenants' property, regularly discards garbage into common areas, throws furniture and materials into the backyard.[FN4]

SO ORDERED.

Dated: January 11, 2020

_______________________________

Poughkeepsie, New York

SCOTT L. VOLKMAN

CITY COURT JUDGE

ENTERED this 11th day of January 2020 Footnotes

Footnote 1: Respondent was sent a warning notice on October 4, 2019, and a 10-day notice to cure, dated December 9, 2019, both of which included a warning to refrain from verbal and physical aggression on other tenants within the property, or be subject to a termination of her tenancy.

Footnote 2:The "Regulations" are referred to in the same Regulatory Agreement between the parties as the rules and regulations promulgated under 24 CFR Part 92 (Home Investment Partnerships Program regulating HUD). Trial Exhibit B,¶ 1.

Footnote 3:Instead, the respondent argues that the Regulatory Agreement contemplates two distinct time periods: 1) during the term of the Agreement which is dated February 7, 2019; and 2) the POA period. See respondent's Post Trial Memorandum, dated November 20, 2020, pages 5-6.

Footnote 4:Executive Order 202.66 extends the Tenant Safe Harbor Act to cases commenced before March 7, 2020, through January 1, 2021. It is within the court's judicial discretion as to whether the Executive Order extends the Tenant Safe Harbor Act to holdover proceedings.