175 BROADWAY LLC v. GONZALEZ (2026)

This matter is a summary no-cause holdover proceeding in which petitioner 175 Broadway LLC (hereinafter, "Petitioner") seeks to recover possession of residential premises described in the petition as 175 Broadway, Apt. 203 a/k/a 202, Haverstraw, New York (hereinafter, "Premises") from respondent Christina Gonzalez (hereinafter, "Respondent"). The grounds for the proceeding are that Respondent continues to occupy the Premises despite having been served with a ninety-day notice terminating her tenancy as of September 30, 2025.

This matter duly came on for trial before the Court on April 27 and June 1, 2026. Petitioner appeared through counsel, Desiree Weisz-Epstein, Esq., and Respondent appeared pro se.¹

The following witnesses testified at trial. Petitioner called Les Debel, a process server, Tzvi Leifer, the sole member of the Petitioner limited liability company, and Respondent. On Respondent's case, the Respondent herself testified and additionally called her mother, Antoinette Gonzalez, as a witness.

The following exhibits were offered by Petitioner and admitted into evidence by the Court:

One exhibit was offered by Respondent, a notice of decision relating to Home Energy Assistance Program ("HEAP") benefits applied for by Respondent, but was not admitted into evidence by the Court for lack of a proper foundation.

At trial, Petitioner, without opposition as to any essential element, established a prima facie case for entitlement to the relief sought. Initially, the Court observes that the Town of Haverstraw has not opted into the Good Cause Eviction Law (GCEL). Accordingly, a landlord seeking to recover possession through a no-cause holdover proceeding must satisfy several essential elements: (1) proper service of a predicate notice of non-renewal or termination that complies with the tiered notice periods of RPL § 226-c; (2) expiration of the notice period and the tenancy term; (3) continued possession by the tenant without the landlord's permission; (4) a verified petition containing all required statutory contents under RPAPL § 741; and (5) proper service of the notice of petition and petition in accordance with RPAPL §§ 733 and 735. Petitioner has established each and every one of the above elements by a preponderance of the credible evidence.

Respondent relies instead on certain affirmative defenses raised in her pleading. In her pro se written answer to the petition, Respondent asserted the following affirmative defenses: (1) the Premises are not properly described in the petition, specifically, that while the petition describes the Premises as "175 Broadway Apt. 203 AKA 202, Haverstraw, NY 10927", Respondent claims to have always resided in Apt. 203; (2) the Premises are used for residential purposes and it would cause Respondent extreme hardship to her and her minor children if a stay pursuant to RPAPL 753 were not granted; (3) that Petitioner accepted housing benefit payments made on behalf of Respondent pursuant to a Emergency Housing Voucher in the window between the termination date and the return date of the notice of petition, thereby vitiating the termination notice; (4) that Petitioner is discriminating against Respondent based upon her source of income, evidenced by a statement alleged to have been made by Petitioner's principal to the effect that "the paperwork for Respondent's Emergency Housing Voucher 'takes too long to do;' " and, (5) that the instant proceeding is "retaliatory" in that it was brought because Respondent refused Petitioner's request to sign a "superseding lease for Apt. 202."

The Court will address the evidence adduced by Respondent at trial with respect to each affirmative defense ad seriatim.

First Affirmative Defense — Misdescribed Premises

Respondent testified that she has always resided in Apt. 203. The ninety-day termination notice, the notice of petition and the petition all identify the premises to be recovered as "Apt 203 AKA 202." Respondent argues that the foregoing discrepancy is fatal to this proceeding.

Unquestionably, in a holdover proceeding, the petition must include an accurate description of the premises from which removal is sought, a requirement fundamental to the Court's jurisdiction. Papacostopulos v. Morrelli, 122 Misc 2d 938, 472 N.Y.S.2d 284 (Civ. Ct. Kings Co. 1984); RPAPL § 741 (3). However, while misdescription of the premises in a holdover proceeding petition is a serious defect that can vitiate the proceeding, it does not automatically always do so. The issue turns on functionality. The applicable standard is what is commonly referred to as the "marshal test": the description must be specific enough to allow the enforcement officer executing a warrant of eviction to locate the premises without additional information. 13315 Owners Corp. v. Kennedy, 4 Misc 3d 931, 782 N.Y.S.2d 554 (Civ. Ct. NY Co. 2004); Papacostopulos, supra; 272 Sherman, LLC v. Vasquez, 4 Misc 3d 370, 777 N.Y.S.2d 853 (Civ. Ct. NY Co. 2004). This functional test is the touchstone for evaluating whether any misdescription — minor or otherwise — is fatal. Thus, where a minor error or discrepancy still leaves the premises identifiable under that standard, the proceeding will generally survive. Where the error renders the premises unidentifiable or would risk execution of a warrant against the wrong location, the proceeding is fatally defective and subject to dismissal.

Applying the foregoing principles to the facts of this case, the Court finds that the claimed discrepancy in the description of the Premises is de minimis and would not lead to the sheriff executing a warrant in the wrong location. In the termination notice, notice of petition and petition the Premises are described in the first instance as "Apt. 203," the unit that Respondent by her own admission actually occupies. The fact that in each document the correct apartment number is followed by "AKA Apt. 202" will not in the Court's view cause the sheriff to execute a warrant against the wrong apartment.

Second Affirmative Defense — Hardship

Respondent argues that she and her minor children would suffer extreme hardship if a stay is not granted pursuant to RPAPL § 753.

RPAPL § 753 (1) states as follows:

1. In a proceeding to recover the possession of premises occupied for dwelling purposes, other than a room or rooms in an hotel, lodging house, or rooming house, the court, on application of the occupant, may stay the issuance of a warrant and also stay any execution to collect the costs of the proceeding for a period of not more than one year, if it appears that the premises are used for dwelling purposes; that the application is made in good faith; that the applicant cannot within the neighborhood secure suitable premises similar to those occupied by the applicant and that the applicant made due and reasonable efforts to secure such other premises, or that by reason of other facts it would occasion extreme hardship to the applicant or the applicant's family if the stay were not granted. In determining whether refusal to grant a stay would occasion extreme hardship, the court shall consider serious ill health, significant exacerbation of an ongoing condition, a child's enrollment in a local school, and any other extenuating life circumstances affecting the ability of the applicant or the applicant's family to relocate and maintain quality of life. The court shall consider any substantial hardship the stay may impose on the landlord in determining whether to grant the stay or in setting the length or other terms of the stay. In an application brought outside a city of one million or more, the term "neighborhood" shall be construed to mean (i) the same town, village or city where the applicant now resides, or (ii) if the applicant has school aged children residing with him or her, "neighborhood" shall mean the school district where such children attend or are eligible to attend.

Other than conclusory allegations, Respondent did not offer any credible evidence to demonstrate the existence of any of the factors set-forth in the statute which would militate for a stay of execution of any warrant issued herein.

Third Affirmative Defense — Post-Termination Acceptance of Rent

The law is clear that in the context of a holdover proceeding, acceptance of rent after the termination date upon which it is based, but prior to the commencement of the proceeding, voids the predicate notice and renders the proceeding dismissible. Once the proceeding is commenced the landlord may accept rent without prejudice to the proceeding. RPAPL § 711 (1) specifically provides a safe harbor for payment of rent in that circumstance. Melroy Realty Corp. v. Siegel, 60 Misc 2d 383, 303 N.Y.S.2d 198 (Civ. Ct. NY Co. 1969); Rensselaer Hous. Auth. v. Beverly, 59 Misc 3d 534, 72 N.Y.S.3d 322 (City Ct. City of Rensselaer 2018); 184 W. 10th Corp. v. Westcott, No. 074781/2003, 2003 WL 22389785 (Civ. Ct. NY Co. Oct. 10, 2003).

At trial Respondent testified in vague and conclusory fashion that Petitioner received rent after the termination date established by the predicate notice, but failed to state if it was before or after commencement of this proceeding. Moreover, Respondent offered no documentary evidence of such payments, which would of course have shown the date of payment. Under the circumstances Respondent cannot be said to have established this affirmative defense.

Fourth Affirmative Defense — Discriminatory Prosecution

Respondent asserts that this proceeding constitutes Petitioner is discriminating against Respondent based upon her source of income, evidenced (solely) by a statement alleged to have been made by Petitioner's principal to the effect that "the paperwork for Respondent's Emergency Housing Voucher 'takes too long to do.' " The foregoing isolated statement, without anything further, is not enough to establish discriminatory animus.

Fifth Affirmative Defense — Retaliatory Eviction

Respondent's final affirmative defense is that the instant proceeding is a retaliatory eviction. Specifically, Respondent claims that this eviction was commenced because she refused to sign a "superseding lease for Apt. 202," as requested by Petitioner.

RPL § 223-b, inter alia, prohibits a landlord from commencing an eviction proceeding in retaliation for a tenant's protected activity, as defined in the statute. That statute provides, inter alia, as follows:

1. No landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for:

a. A good faith complaint, by or in behalf of the tenant, to the landlord, the landlord's agent or a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance, the warranty of habitability under section two hundred thirty-five-b of this article, the duty to repair under sections seventy-eight, seventy-nine, and eighty of the multiple dwelling law or section one hundred seventy-four of the multiple residence law, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree; or

b. Actions taken in good faith, by or in behalf of the tenant, to secure or enforce any rights under the lease or rental agreement, the warranty of habitability under section two hundred thirty-five-b of this article, the duty to repair under sections seventy-eight, seventy-nine, and eighty of the multiple dwelling law or section one hundred seventy-four of the multiple residence law, or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree; or

c. The tenant's participation in the activities of a tenant's organization.

See also, e.g., Ghadamian v. Channing, 295 AD2d 127 (1st Dept. 2002).

Refusal to sign a superseding lease does not fall under any of the categories of protected conduct set-forth the above statute. Thus, Respondent has not established the affirmative defense of retaliatory eviction.

Rent Arrears

Lastly, while the petition, in the ad damnum clause, seeks a money judgment for rent arrears, at trial Petitioner adduced no evidence on the issue of arrears, nor did its counsel even mention the issue in opening or summation. Accordingly, the Court will make no award for rent arrears or use and occupancy.

Conclusion

The Petitioner has, by a preponderance of the credible evidence, established its entitlement to a judgment of possession and Respondent has failed to establish any defense thereto.

Accordingly, it is hereby

ORDERED, that the Petitioner is directed to submit a proposed judgment and warrant of eviction within 60 days of the date hereof.

FOOTNOTES

1.   Initially, Respondent was represented by the Legal Aid Society of Rockland County, Inc., but by a written Substitution of Attorney, dated February 3, 2026, Respondent elected to proceed pro se.

George G. Coffinas, J.