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Supreme Court, Appellate Term, New York.


Decided: May 26, 2000

PRESENT:  STANLEY PARNESS, P.J., WILLIAM P. McCOOE and WILLIAM J. DAVIS, Justices. Jeffrey Schanback, New York City (Steven J. Rappaport and Elyse Hilton of counsel), for appellant. Legal Aid Society, Bronx (Marshall Green and Julia M. Murray of counsel), for respondent.

Order entered June 17, 1998 (Howard Sherman, J.) modified by vacating the provision allowing for a postjudgment cure pursuant to RPAPL § 753(4);  as modified, order affirmed, without costs.

Appeal from order entered October 27, 1998 (Howard Sherman, J.) denying renewal and/or reargument dismissed, without costs, as academic.

After due notice and a hearing, respondent's tenancy was finally terminated by landlord New York City Housing Authority because of her failure to submit requisite information concerning her income and household composition.   Subsequently, the Authority served a 30 day notice to vacate and commenced this holdover eviction proceeding. Civil Court, while granting summary judgment on the petition, afforded tenant a postjudgment opportunity to cure pursuant to RPAPL § 753(4) based upon tenant's affidavit that “I have now complied in full” with the recertification/income verification requirements.

We do not agree that RPAPL § 753(4) is appropriately invoked here. This proceeding was not premised upon a correctable breach of tenant's lease, but was brought to enforce an administrative determination that tenant was no longer eligible for continued occupancy because of her noncompliance with certain rules and regulations governing the tenancy (see, New York City Housing Authority v. Williams, 179 Misc.2d 822, 687 N.Y.S.2d 539 [App. Term, 2d Dept.];   North Waterside Redevelopment Co. v. Flores, N.Y.L.J., July 21, 1997, at 27 col. 5 [App. Term, 1st Dept.] ).   While it is argued that Civil Court's application of the statute was “procedural” only, what has happened, in substance, is that the court has effectively reinstated a tenancy previously terminated by the Housing Authority after exhaustion of the administrative process.   The Housing Authority, in the exercise of its adjudicatory function, retains the discretion to grant or withhold a “cure” in a given case, subject only to the more limited standard of review applicable to CPLR article 78 proceedings timely commenced in Supreme Court (see, e.g., Matter of Dukuly v. Aponte, 204 A.D.2d 189, 612 N.Y.S.2d 126).1  It is not for the Civil Court to judicially extend the tenancy by the application of RPAPL § 753(4) in holdover proceedings of this type.

I respectfully dissent for the reasons stated in Thompson v. 490 West End Ave. Apts. Corp., 252 A.D.2d 430, 436, 676 N.Y.S.2d 73 (1st Dept., 1998) which cites with approval the trial court's decision in New York City Hous. Auth. (Red Hook E. Houses) v. Williams, 170 Misc.2d 963, 652 N.Y.S.2d 481 (Civil Court Kings County, 1996).   I disagree with the Appellate Term, Second Department's reversal in New York City Hous. Auth. v. Williams, 179 Misc.2d 822, 687 N.Y.S.2d 539, and the Majority's reliance on it.   RPAPL § 753(4) (amended in 1982) should be “liberally construed.”  Nestor v. McDowell, 81 N.Y.2d 410, 414, 599 N.Y.S.2d 507, 615 N.E.2d 991 (1993).  “In construing a statute, courts should not lose sight of the problem that the amendment was intended to remedy.”  Glenn Muller, et al. v. New York State Division of Housing and Community Renewal, 263 A.D.2d 296, 305, 703 N.Y.S.2d 80 (1st Dept., 2000).   Noncompliance with the rules and regulations of the NYCHA by not timely furnishing financial data is a breach of an implied term of the lease curable under RPAPL § 753(4).   See 923 Fifth Ave. Assocs. v. Eisenberg, 191 A.D.2d 396, 595 N.Y.S.2d 435 (1st Dept., 1993);  Fairbanks Gardens Co. v. Gandhi, 168 Misc.2d 128, 645 N.Y.S.2d 262 (App.Term, 2nd Dept., 1996).

The Order granting a postjudgment cure should be affirmed.


1.   So far as appears from the record, tenant did not challenge the Housing Authority's final determination by way of Article 78 review.