1068 GERARD PARTNERSHIP L.P., Petitioner, v. Mildred LAROCHE, et al., Respondents (Tenants).
RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY THE RESPONDENT TO DISMISS THE PROCEEDING AND PETITIONER'S CROSS-MOTION TO AMEND THE PETITION: NYSCEF Document No. 23-37.
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THESE MOTIONS IS AS FOLLOWS:
RELEVANT FACTS AND PROCEDURAL POSTURE
Though the property in controversy is subject to (HPD) Section 8, the petition only states the premises are subject to rent stabilization. (see NYSCEF Doc. 1). Respondent moves to dismiss the proceeding because of the petition fails to adequately describe the tenancy's regulatory status and because petitioner failed to provide notice of this eviction proceeding to HPD. Petitioner cross-moves to amend the petition to reflect the HPD Section 8 status. Petitioner disputes that it must serve HPD with the petition. (see NYSCEF Doc. 33 at p. 3).
On a motion to dismiss the complaint pursuant to CPLR § 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Leon v Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Breytman v Olinville Realty, LLC, 54 A.D.3d 703, 703-704, 864 N.Y.S.2d 70 [2nd Dept 2008]). A CPLR 3211 (a) (7) motion “must be denied ‘unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it.’ ” (Sokol v Leader, 74 A.D.3d 1180, 1182, 904 N.Y.S.2d 153 [2nd Dept 2010] quoting Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ).
Petitions in summary proceedings must allege the regulatory status of the premises and compliance with the regulations associated therewith. (see Villas of Forest Hills Company v Lumberger, 128 A.D.2d 701, 513 N.Y.S.2d 116 [2nd Dept 1987]; RPAPL § 741; see also Fortune Society v Brown, 68 Misc 3d 956, 957, 128 N.Y.S.3d 788 [Civ Ct, Bronx County 2020] (A petition must plead the applicable regulatory status of the subject premises as well as any government contracts to which it is a party as “[t]he contract provide[s] the tenant with certain potential defenses.”) (citations omitted)).
Section 8 status is one that must be pled. (see 433 W. Assoc. v Murdock, 276 A.D.2d 360, 715 N.Y.S.2d 6 [1st Dept 2000]). Failure to do so can lead to dismissal since proper pleading is an “essential element” of a landlord's prima facie case. (see id. at 360, 715 N.Y.S.2d 6; see also Sam Burt Houses v. Smith, 2015 NYLJ LEXIS 5953, *5 [Civ. Ct., Kings County 2015] (When a tenant receives a rent subsidy under the Section 8 program, the petitioner's failure to identify the particular program applicable to the tenancy and the governing statutes and regulations in the petition is “’fatal’ to the proceeding's maintenance.”) (citations omitted)).
Non-compliance with these requirements may be waived. (see Marrano Dev't Affiliates v Johnson, 20 Misc 3d 134(A), 2008 N.Y. Slip Op. 51500(U), 867 N.Y.S.2d 375 [App Term, 1st Dept 2008); 433 W. Assoc. v Murdock, 276 A.D.2d 360, 361, 715 N.Y.S.2d 6 [1st Dept 2000]). However, there has been no waiver. As such, petitioner moves to amend its pleading to include that “The premises are also governed by section 8 regulations administered by the NYC Dept of Housing Preservation and Development.” (see NYSCEF Doc. 34). The court must determine whether the defect is amendable.
Petitioner argues that amendment is obvious because there is no prejudice to the respondent. While certain defects may be overlooked and/or amendment granted in the absence of prejudice, this type of defect has repeatedly been found prejudicial. (see Park Props. Assoc. L.P. v Williams, 38 Misc 3d 35, 37, 959 N.Y.S.2d 798 [App Term, 2nd Dept, 9th & 10th Jud. Dists. 2012]; Jasper, L.P. v Davis, 63 Misc 3d 1209(A), *3, 2019 N.Y. Slip Op. 50448(U) [Civ Ct, Bronx County 2019] (amendment denied as respondent prejudiced by petition's failure to include required regulatory status information including HPD Section 8); Westchester Gardens, L.P. v Lanclos, 43 Misc 3d 681, 687, 982 N.Y.S.2d 302 [Civ Ct, Bronx County 2014] (amendment unavailable because tenant prejudiced by failure to plead correct regulatory status); Fortune Society v Brown, 68 Misc 3d at 960; East 168th Street Associates v Castillo, 60 Misc 3d 774, 783, 79 N.Y.S.3d 485 [Civ Ct, Bronx County 2018]).
The fact that respondent obtained counsel who was able to identify the petition's inadequacy hardly matters. (see Castillo, 60 Misc 3d at 784) [“The purpose of pleading specific regulatory schemes and compliance therewith is to enable litigants and their attorneys to ascertain if there are “potential defenses” to the proceeding prior to being in court, and for the court to be able to properly adjudicate the proceeding. Pleading the particular Section 8 program would enable Respondent and/or her attorney to discern exactly which requirements apply to her, and to determine the scope of her rights and defenses.”]); Jasper, L.P. v Davis, 63 Misc 3d 1209(A), *4 (“The fact that Respondent was able to retain counsel who could raise defenses to the proceeding after its commencement does not absolve Petitioner from the requirements under the RPAPL.”); Fortune Society v Brown, (68 Misc 3d 956).1
Even petitioner's proposed amended petition might be insufficient. Courts have opined that given the varying Section 8 programs, a petition must state more than just that “[t]he premises are also governed by section 8 regulations administered by the NYC Dept of Housing Preservation and Development” as the proposed amended petition states. In East 168th Street Associates v Castillo, for instance, the court held a conclusory statement that the premises were subject to HUD Section 8 insufficient because “there are numerous Section 8 Programs, each subject to different rules and requirements.” (60 Misc 3d at 783).
For these reasons, respondent's motion to dismiss is granted and petitioner's cross-motion denied.
Petitioner's failure to notify Section 8 of this eviction proceeding is also fatal. Section 982.310(e)(2)(ii) of Title 24 states that “The owner must give the PHA a copy of any owner eviction notice to the tenant.” Petitioner's position that it is not obligated to “serve” HPD.2 Section 982.310(e)(2)(ii), however, requires “notice.” This has been held to mean that a petitioner must serve the agency with a copy of the rent demand and the notice of petition and petition. (see Sam Burt Houses v. Smith, 2015 NYLJ LEXIS 5953, *7 [emphasis added]); Other cases hold that the provision “mandates that petitioner must give notice to HPD as the PHA.” (FAC Renaissance HDFC v Vega, 55 Misc 3d 1210(A), 2017 N.Y. Slip Op. 50480(U) [Civ Ct, Kings County 2017] [emphasis added]).
Petitioner's reliance on Clinton-178 Towers LLC v Chapple is misplaced. Chapple involves a Section 8 subsidy administered by DHCR. The petition alleged compliance with Section 982.310, but the affidavits on file did not indicate any service on DHCR. (see 58 Misc 3d 198, 200, 63 N.Y.S.3d 656 [Civ Ct, Bronx County 2017]). Petitioner, in fact, did notify the PHA. (id. at 201-202).
While the Chapple court found that there is no requirement that proof of the notice to the PHA needs to be filed with the pleadings and that the regulation does not even direct how notice is to be given, it did not find that notice was not required. Indeed, Chapple holds that the “[f]ailure to give the requisite notice to the PHA is certainly a defense which, if proven on a motion to dismiss, could result in dismissal of the proceeding.” (id. at 202). Here, notice was not given and dismissal results on this additional ground.
Based on the above, respondent's motion to dismiss the proceeding is granted. Judgment shall enter in the respondents’ favor. Petitioner's cross-motion is denied in all respects. Any other pending motions are denied as moot. This constitutes the decision and order of the court. It will be posted on NYSCEF.
1. Mildred Laroche, it must be noted, is purportedly a disabled senior. The court appointed a guardian ad-lite for her.
2. Petitioner also argues that respondent does not point to a specific paragraph of the regulatory agreement that requires notice to the PHA. This argument is a red-herring, as there is no dispute that the premises are subject to HPD Section 8 (see petitioner's motion to amend). As such, petitioner must comply with 24 CFR 982.310 (e)(2)(ii).
Shorab Ibrahim, J.
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