SUKAJ GROUP LLC, Petitioner, v. Joann MALLIA, Respondent-Tenant, “JOHN and/or JANE DOE,” Respondent(s)-Occupant(s).
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Notice of Motion [With Affidavit & Exhibits A-H] 1
Affirmation in Opposition [With Affidavit & Exhibit] 2
Reply Affirmation [With Affidavit & Exhibits A-C] 3
After oral argument held on January 15 and January 24, 2019 and upon the foregoing cited papers, the decision and order on this motion is as follows:
FACTUAL AND PROCEDURAL HISTORY
Sukaj Group LLC, (“petitioner”), commenced this summary holdover proceeding to recover possession of 1838 Victor Street, Apt. 1, Bronx, NY, (“apartment”), from Joann Mallia, (“respondent”), premised on the allegation that the apartment is not subject to rent regulation because it is located in a private home with less than six (6) units with no lease in effect.1 The petition further alleges that the tenancy was terminated by service of a Thirty-Day Notice of Termination, (“Notice”).2 The Notice, dated August 26, 2019, purports to terminate the tenancy at the end of September 30, 2019 and states the “[t]enancy is hereby terminated pursuant to and in accordance with the requirements of Real Property Law (232-a).” The petition is dated October 21, 2019, is date stamped October 31, 2019 by the clerk's office and was served by conspicuous place service on November 4, 2019, with a mailing to respondents on November 5, 2019.3
Respondent obtained counsel and interposed a written answer on or about November 19, 2019.
Whereas par. 2 of the petition states,
Respondents are month-to-month tenants of the subject premises. Respondent's tenancy was terminated by the service of a Thirty-Day Notice of Termination dated August 26th, 2019 which terminated Joann Mallia's tenancy effective September 30th, 2019, the answer admits only the month-to-month tenancy and that respondent is in possession of a copy of a Notice of Termination. It denies the balance of par. 2 of the petition.4
Whereas par. 3 of the petition states, inter alia,
Respondents continue in possession of the subject premises after the notice of termination ended Respondent's tenancy on September 30, 2019, the answer denies par. 3 of the petition.5
Whereas par. 5 of the petition states,
The term for which the said premises were rented by the Respondent-Tenant(s) had been terminated by the service of the attached thirty-day notice of termination that terminated the Respondent's tenancy effective September 30, 2019, the answer admits only that respondent is in possession of a copy of a Notice of Termination. Respondent denies the balance of par. 5.6
Whereas par. 6 of the petition states,
The Respondents named herein continue in possession of the subject premises without the permission of the Landlord after the termination of said term, the answer admits par. 6 only to the extent that respondent is in possession of the subject premises. Respondent denies the balance of par. 6.7
And whereas par. 12 of the petition states,
The grounds of this proceeding are as follows: Tenant's term has been terminated pursuant to the Notice(s) annexed hereto and made a part hereof, by reason of the grounds asserted therein, the answer denies the allegations of par. 12.8
Respondent, by motion dated December 16, 2019, moved for dismissal pursuant to CPLR § 3211(a)(1), (a)(2) and (a)(7) and for a stay pending resolution of respondent's NYC Commission on Human Rights complaint. On January 24, 2020, respondent withdrew her request to dismiss the case, but argued for a stay. Petitioner vehemently opposed. The court reserved decision after argument. For reasons stated hereinafter, the court need not reach the merits of respondent's motion.
CPLR § 409(b)
CPLR § 409(b) states,
The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised. The court may make any orders permitted on a motion for summary judgment. [emphasis added].
In a special proceeding, such as this summary landlord-tenant action, the court is thus required to review the “pleadings, papers and admissions” and make a summary determination where appropriate. (Brusco v. Braun, 199 AD2d 27, 31-32, 605 NYS2d 13 [1st Dept 1993]; FR Holdings, FLP v. Homapour, 154 AD3d 936, 938, 63 NYS3d 89 [2nd Dept 2017]; 1646 Union LLC v. Simpson, 62 Misc 3d 142[A], 2019 NY Slip Op 50089[U] [App Term, 2nd Dept 2019]).
Though a summary judgment motion may be made by one or both of the parties, under CPLR § 409(b), the court must also make summary determination on its own. (New 110 Cipriani Units LLC v. Board of Managers of 110 E 42nd Street Condominium, 166 AD3d 550, 551, 2018 NY Slip Op 08096 [1st Dept 2018]; 1091 River Avenue LLC v. Platinum Capital Partners, Inc., 82 AD3d 404, 2011 NY Slip Op 01518 [1st Dept 2011]).
It is also clear that the court may grant summary judgment or dismiss the proceeding on grounds not raised by the parties. (id.; see also, 1646 Union LLC v. Simpson, 62 Misc 3d 142[A] [Appellate Term, upon § 409(b) review, dismissed case on grounds not raised by tenant]; 901 Bklyn Realty, LLC v. Woods-Najac, 65 Misc 3d 158[A], 2019 NY Slip Op 51976[U] [App Term, 2nd Dept 2019] [on landlord's appeal, Appellate Term, upon § 409(b) review, dismissed holdover]; Gonzalez v. Peterson, 177 Misc 2d 940, 941, 678 NYS2d 855 [App Term, 1st Dept 1998] [in holdover case, “legal defect was fatal to the proceeding and may be raised upon appeal, notwithstanding the failure to assert it below”] ).
THE NOTICE OF TERMINATION AND THE HSTPA
On June 14, 2019, New York State enacted the Housing Stability and Tenant Protection Act of 2019, commonly referred to as the “HSTPA.” The landmark legislation made fundamental changes to rent laws and added greater protections for tenants throughout the state. (L 2019, Ch 36 [2019 NY Senate Bill S6458] ).
Among the added protections are greater notice requirements prior to commencement of holdovers against certain month-to-month tenants. While the former RPL § 232-a allowed thirty-day notice of termination to terminate any month-to-month tenancy, the amended statute, requires a sixty-day notice if the tenant has been in occupancy for more than a year, but less than two (2) years or if there is a lease for at least one (1) year, but less than two (2) years. (see RPL § 232-a, as amended, and RPL § 226-c). A ninety-day notice is required for occupancies greater than two (2) years or where the lease term was for at least (2) years. (id.; L 2019, Ch 36, Part M, at § 3 and § 6).
Part M, § 29 of the HSTPA states,
This act shall take effect immediately and shall apply to actions and proceedings commenced on or after such effective date; provided, however, that sections three, six and seven shall take effect on the one hundred twentieth day after this act shall have become a law
As such, the amended RPL § 232-a applies to any proceeding commenced on or after October 12, 2019. (see Denis v. Fisher, 2019 NY Slip Op 29389 at *2, 2019 WL 6885114 [Civ Ct, Queens County 2019]). Though the Notice here was served prior to the effective date of the amended RPL § 232-a, the proceeding was commenced after its effective date. (see NYC CCA Sec. 400; ABN Assoc., LLC v. Citizens Advice Bur, Inc., 27 Misc 3d 143[A], 910 NYS2d 760 [App Term, 1st Dep't 2010]); and 92 Bergenbrooklyn, LLC v. Cisarano, 50 Misc 3d 21, 21 NYS3d 810 [App Term, 2nd Dep't 2015]).
In her December 16, 2019 affidavit in support of the pending motion, respondent swears she “started living in the Apartment around February 1, 2010, when I signed a lease with Franco Sukaj.”9 She alleges executing 3 subsequent leases, with the last expiring on January 31, 2018.10 The leases are attached as exhibits.11 In addition to respondent's unrebutted affidavit and the unchallenged leases, (see Kuehne & Nagel, Inc v. Baiden, 36 NY2d 539, 544, 369 NYS2d 667  [“Facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted.”]; Esponda v. Ramos-Ciprian, 2020 NY Slip Op 00064, 2020 WL 61635 [1st Dept 2020]), there is other indicia that the tenancy was for more than a year.
At oral argument on January 15, 2020, petitioner's counsel confirmed the ten-year tenancy.12 Further, the April 16, 2019 notice from petitioner to section 8 of its intent to commence a non-payment proceeding seeks rent dating back to October 2018.13 The letter's authenticity is not disputed and, in fact, confirmed by petitioner's counsel on January 15, 2020.14 Finally, the February 25, 2019 notice to respondent from Section 8 that her share is $205 states it is an “Annual Review,” suggesting respondent had been in the premises for at least a year as of March 1, 2019.15
Dismissal pursuant to CPLR § 409(b) on grounds not specifically requested by respondent is not lightly taken by this court. However, the statute requires the court's instant review. In an effort to reduce any surprise to petitioner, or at least the unfair surprise petitioner might claim, the court advised the parties on January 28, 2020 that the HSTPA amendments applied to this case, and that the Notice was not sufficient given the likely length of respondent's tenancy. As such, the case was calendared for February 11, 2020 and petitioner was advised that it could submit further papers. On February 11, 2020, petitioner made no substantive argument and did not dispute the length of respondent's tenancy. Rather, it alleged a general confusion with its obligations under the HSTPA.
Dismissal is Required
Compliance with RPL § 232-a, by its very terms, is a condition precedent to this proceeding. As such, it remains petitioner's burden to prove compliance with the statute as part of its prima facie case. (see Second & E. 82 Realty LLC v. 82nd Street Gily Corp., 192 Misc 2d 55, 57, 745 NYS2d 371 [Civ Ct, New York County 2002] (compliance with the statutory prerequisites to a summary eviction proceeding, including service of an adequate predicate notice, constitutes a fact on which the proceeding is based and which a petitioner therefore must plead and prove as part of petitioner's prima facie case) [emphasis added] ). An improper notice, of course, is not amendable. (Chinatown Apartments Inc. v. Chu Cho Lam, 51 NY2d 786, 787, 433 NYS2d 86 ).
It cannot be reasonably argued that petitioner is caught by unfair surprise by its own noncompliance with a statutory requirement. (see Second & E. 82 Realty LLC v. 82nd Street Gily Corp., 192 Misc 2d at 57 [“[t]he fact that the notice was deficient in its execution or content may have been a surprise to petitioner, but not the unfair surprise contemplated by CPLR § 3018”], citing Stevens v. Northern Lights Assocs., 229 AD2d 1001, 1002, 645 NYS2d 193 [4th Dept 1996]). The court further notes that respondent's answer denies each allegation made in the petition that respondent's tenancy has been terminated. (see CPLR § 3018; Steven v. Northern Lights Assocs., 229 AD2d at 1002).
Consequently, in commencing this case after October 12, 2019, where respondent's tenancy was for greater than two years, petitioner was required to serve a ninety-day termination notice pursuant to RPL § 232-a and RPL § 226-c. Its failure to do so is fatal and dismissal must eventuate -- now, at trial, a future CPLR § 3211(a)(7) motion, (see WFHA Creston Ave, LP v. Vostaw, 2020 NY Slip Op 50083[U] at *2, 2020 WL 425687 [Civ Ct, Bronx County 2020], citing Kales v. City of New York, 169 AD3d 585, 586, 95 NYS3d 58 [1st Dept 2019]), or even on appeal.16
Based on the foregoing, pursuant to CPLR § 409(b), this proceeding is dismissed without prejudice.17 The clerk shall enter judgment in favor of respondent. Respondent's motion for a stay is denied as moot. This constitutes the decision and order of the court.
1. See par. 2 and par. 9 of the October 21, 2019 petition.
2. Id at par. 2, 3, 5, 6, and 12.
3. See Affidavit of Service for the petition and notice of petition.
4. Answer at par. 3.
5. Id at par. 4.
6. Id at par. 6.
7. Id at par. 7.
8. Id at par. 13.
9. Respondent's affidavit at par. 8.
10. Id at par. 9.
11. Motion at exhibit C.
12. FTR starting at 10:27 a.m.
13. Motion at exhibit G.
14. FTR at approx. 10:16:45 a.m.
15. Motion at exhibit B. In addition, the verified complaint in the matter of Joann Mallia v. Sukaj Group LLC, 1838 Victor Inc., Franco Sukaj, and Nush Sukaj is attached as exhibit F. It again alleges the long tenancy, with the last lease expiring January 31, 2018. While petitioner acknowledges the NYC Commission on Human Rights matter, the court is unaware whether an answer was filed.
16. (see 1646 Union LLC v. Simpson, 62 Misc 3d 142[A]; 901 Bklyn Realty, LLC v. Woods-Najac, 65 Misc 3d 158[A], 2019 NY Slip Op 51976[U] [App Term, 2nd Dept 2019]; Gonzalez v. Peterson, 177 Misc 2d 940, 941, 678 NYS2d 855 [App Term, 1st Dept 1998]).
17. Respondent's new motion to dismiss (on the grounds identified by the court), filed on February 11, 2020, is deemed moot. The court, however, has considered petitioner's arguments in opposition to same and finds them to be completely without merit. Though the Termination Notice was issued and expired prior to October 12, 2020, the relevant inquiry is when the case commenced. (Denis v. Fisher, 2019 NY Slip Op 29389; ABN Assoc., LLC v. Citizens Advice Bur, Inc., 27 Misc 3d 143[A]).
Shorab Ibrahim, J.
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