2626 EQUITIES LLC, Petitioner, v. Illiams NaVarro MORILLO, Elizabeth Paulino Feliz Annelly, Respondents.
Recitation, as required by CPLR 2219 (a), of the papers considered in review of this motion:
Notice of Motion, annexed Affirmation,
Memorandum of Law, and Exhibits (A-E) 1
Answering Affidavits and annexed Exhibit 2
Replying Affirmation and Memorandum of Law 3
After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:
PROCEDURAL HISTORY AND FACTS
This is a nonpayment proceeding brought against Illiams Navarro Morillo (“Morillo”), and Elizabeth Paulino Feliz Anelly (“Respondent”), both named as tenants. Morillo has not appeared in the proceeding.1 The proceeding is predicated upon a written rent demand dated June 24, 2019 which was served only upon Morillo. The Notice of Petition and Petition were served on both Morillo and Respondent. On August 28, 2019 Respondent answered the proceeding, asserting a general denial. The proceeding first appeared on the Court's calendar on September 9, 2019 and was adjourned for Respondent to seek legal counsel. On October 24, 2019 Mobilization for Justice, Inc. appeared on behalf of Respondent and this motion ensued.
Respondent moves to dismiss the proceeding pursuant to CPLR 3211 (a) (2) (lack of subject matter jurisdiction), (7) (failure to state a cause of action), and (8) (lack of personal jurisdiction), on the bases that she was named in the Petition as a “tenant in possession of a written lease agreement to pay to landlord ․ rent $1,515.00 each month” (Petition at 2), but was not served with a written rent demand as required by RPAPL 711 (2), nor as alleged in Paragraph 8 of the Petition. As a named “tenant” residing in the premises, Respondent argues that she was entitled to a rent demand and that Petitioner's failure to serve her with same deprives the Court of both subject matter and personal jurisdiction over her, as well divesting Petitioner of its cause of action. At oral argument, Respondent's attorney stated that Morillo vacated the premises in September 2019.
In opposition, Petitioner states that Respondent is not a tenant pursuant to the lease and her right to occupy the premises devolves from Morillo. (Affirmation of Petitioner's counsel at 8.) Petitioner avers that it did not know that Respondent was living in the apartment when it served the rent demand, but upon learning that Respondent had moved into the apartment, it named her in the Petition. (Affirmation of Petitioner's counsel at 5, 9.) Petitioner argues that Respondent has not shown that it knew or should have known of Respondent's presence in the premises. Petitioner is correct that “nothing contained in Respondent's motion provides any hint as to when she entered possession or if the Landlord had any notice whatever of her occupancy prior to July 2019.” (Yeshia Berger aff at 7.)2
Respondent's reply papers reiterate the arguments made in its moving papers but further state that Respondent “moved into the subject apartment in April 2019” (Reply affirmation of Respondent's counsel at 4), two months before service of the rent demand upon Morillo alone.3
As a preliminary matter, Respondent's motion to dismiss pursuant to CPLR 3211 (a) (2) on the basis that this Court lacks subject matter jurisdiction over this proceeding is denied. The Civil Court is vested with subject matter jurisdiction over housing matters by statute. (New York City Civil Court Act § 110.) Any failure of a petitioner to comply with a statutory notice requirement, where applicable, does not implicate the court's subject matter jurisdiction. (433 W. Assoc. v. Murdock, 276 AD2d 360, 360-361 ). Instead, “[t]he failure of a petitioner to comply with a statutory notice requirement, where applicable, represents merely the failure to comply with a condition precedent to suit and cannot properly be said to affect the court's jurisdiction.” (170 W. 85th St. Tenants Assn. v. Cruz, 173 AD2d 338, 339 [1st Dept 1991].) Accordingly, this Court has subject matter jurisdiction over this nonpayment proceeding, and the motion to dismiss is denied in this respect.
Respondent's argument that she is entitled to a written rent demand pursuant to RPAPL 711 (2) founders on the plain language of the statute. RPAPL 711 (2) states that a special proceeding may be maintained when “[t]he tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a written demand of the rent has been made with at least fourteen days' notice requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him as prescribed in section seven hundred thirty-five of this article.” (RPAPL 711  [emphasis added].)
It is not disputed that Respondent is not a tenant. Indeed, Respondent's attorney conceded at oral argument that she is simply an occupant without any claim to succession as Respondent, Morillo's cousin, co-resided with Morillo for less than one year. (See generally Rent Stabilization Code [9 NYCRR] §§ 2523.5 [b] , 2520.6 [o].) Respondent is also not in default of an obligation to pay rent pursuant to an agreement with Petitioner. Respondent does not provide the Court with any case that stands for the proposition that a mere occupant of an apartment is entitled to a written rent demand pursuant to RPAPL 711 (2). Moreover, with the passage of the Housing Stability and Tenant Protection Act (“HSTPA”) on June 14, 2019, which codified the holding Parkash 2125 LLC v. Galan (61 Misc 3d 502 [Civ Ct, Bronx County 2018]) and provides that the warrant of eviction is effective as against only those persons named in the proceeding, landlords are justifiably more careful to name all occupants when drafting petitions. (RPAPL 749 .)
In the harassment context, the Hon. Jack Stoller recently held that “if a landlord follows the dictates of the Legislature and errs on the side of naming more respondents than less respondents in a summary proceeding, the Court cannot find that compliance with the expressed desires of the Legislature also subjects a landlord to harassment liability [for naming and serving a minor in a nonpayment proceeding].” (Dunn v. 583 Riverside Dr LP, 2019 NY Slip Op 29399, *3 [Civ Ct, NY County 2019].) Likewise, in the instant case, the Court will not dismiss this proceeding on the basis that Petitioner named Respondent — who is not entitled to a statutory rent demand — as a tenant in this proceeding in order that it may be accorded complete relief under the HSTPA. While Petitioner has not moved to amend the Petition to reflect that Respondent is an undertenant or occupant, the Court does not subscribe to Respondent's attorney's statement at oral argument that this is a non-amendable defect. Rather, the Court sees this as a technical pleading deficiency which confers no tenancy rights upon Respondent. Moreover, Respondent claims no prejudice. (See CPLR 3025 [a], [c]; McGhee v. Odell, 96 AD3d 449 [1st Dept 2012], citing McCaskey, Davies & Assocs., Inc. v. NY City Health & Hosps. Corp., 59 NY2d 755 ; see also Murray v. City of NY, 43 NY2d 400 .)
For the foregoing reasons, it is hereby ORDERED that:
Respondent's motion to dismiss pursuant to CPLR 3211 (a) (2) is DENIED; and it is further ORDERED that
Respondent's motion to dismiss pursuant to CPLR 3211 (a) (7) is DENIED.
The remaining branch of Respondent's motion based on lack of personal jurisdiction is denied as moot as she was not entitled to be served with a statutory rent demand pursuant to RPAPL 711 (2).
This proceeding is adjourned to February 24, 2020 at 9:30 a.m., Part J, Room 490, for trial or settlement.
This constitutes the Decision and Order of this Court.
1. Hereinafter, Elizabeth Paulino Feliz Anelly is the only Respondent referred to in this decision.
2. In fact, it is Petitioner who points out that Respondent paid it $3,000 on an unspecified date (Yeshia Berger aff at 6). Respondent did not allege this fact, support it with an affidavit or receipts, and does not argue that this payment gave her any rights to the premises, or to a written rent demand. (See n 3, infra.)
3. No affidavit from Respondent is submitted in support of her motion. (See e.g. Arriaga v. Laub Co., 233 AD2d 244 [1st Dept 1996].)
Karen May Bacdayan, J.
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