NEW YORK CITY HOUSING AUTHORITY v. WINKLER (1998)

Final judgment unanimously affirmed without costs.

In this proceeding by the New York City Housing Authority to remove occupants on the ground that they are licensees whose license expired upon the death of the tenant of record, occupants defend, inter alia, on the ground that the petition and 10-day notice to quit are defective because they do not allege that a grievance proceeding was afforded them by the Authority and the outcome of such proceeding.

 The Authority is required by federal regulation and by its own Management Manual to afford grievance hearings to those with colorable claims to remaining-family-member status (see, 24 CFR Ch. IX, part 966, Subpart B and particularly § 966.53[f];  In Re Adams, 94 B.R. 838;  Nash v. Washington, 360 A.2d 510 [D.C. App.];   NYCHA Management Manual Ch. VII, § E[1] [b] ).  This rule is a statutory condition precedent which must be pleaded (see, 5 Weinstein-Korn-Miller, N.Y. Civ. Prac. ¶ 3015.02).

 However, the failure to make the required allegation does not require reversal.   All the facts concerning the grievance proceeding were proven at trial and occupants suffered no prejudice as a consequence of landlord's failure to plead these facts in the petition.   Under the circumstances, we deem the pleading amended to conform to the proof (see, CPLR 3026;  Villas of Forest Hills Co. v. Lumberger, 128 A.D.2d 701, 513 N.Y.S.2d 116;  Birchwood Towers # 2 Associates v. Schwartz, 98 A.D.2d 699, 469 N.Y.S.2d 94).

 Further, there is no requirement that the 10-day notice to quit state the facts concerning the grievance proceeding (see, e.g., Helping Out People Everywhere, Inc. v. Deich, 160 Misc.2d 1052, 615 N.Y.S.2d 215;  First Federal Savings and Loan v. Souto, 162 Misc.2d 224, 616 N.Y.S.2d 562;  Katz v. Grifa, 156 Misc.2d 203, 591 N.Y.S.2d 758;  but see the contrary Civil Court cases cited at 162 Misc.2d at 226, 616 N.Y.S.2d 562).

 With respect to the issue whether occupants are entitled to a trial de novo of their claim to remaining-family-member status, our ruling in New York City Housing Authority v. Simmons (148 Misc.2d 709, 568 N.Y.S.2d 258) that occupants were entitled to a trial de novo was predicated on the rules then in effect providing that the outcome of all grievances, except specified ones, would not be binding on the court. Subsequent to our ruling in Simmons, the Authority adopted separate rules for remaining-family-member grievances which are silent on the issue of the effect to be given the Authority's adjudication.   In the face of such silence, the general rule that the doctrine of res judicata is applicable to quasi-judicial determinations of administrative agencies must govern (see, Ryan v. New York Tel. Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487).   Accordingly, occupants who have had their claim to remaining-family-member status adjudicated by the Authority in a due process hearing are not entitled to a trial de novo of this claim in the courts.

MEMORANDUM.