Opinion
June 18, 1999
Appeal from the Civil Court of the City of New York, New York County (Howard Malatzky, J.).
LeBoeuf, Lamb, Greene MacRae, L. L. P., New York City, for appellant.
Kucker, Kraus Bruh, L. L. P., New York City, for respondent.
Order dated December 17, 1997 affirmed, with $10 costs.
The tenant's belated motion to dismiss the nuisance holdover petition, made nearly one year after entry of a final judgment in landlord's favor, was properly denied. Tenant waived any objection to the adequacy of the landlord's December 12, 1996 notice of petition or trial proof insofar as they related to the tenant's Section 8 status ( see, 42 U.S.C. § 1437 [f]), by stipulating through trial counsel to the procedural elements of the landlord's prima facie case ( see, Moses v. Michetti, 210 A.D.2d 124) and by failing to pursue a direct appeal from the final judgment ( see, Hecht v. City of New York, 60 N.Y.2d 57, 61; see also, Claridge Gardens v. Menotti, 160 A.D.2d 544, 545). Issues relating to the landlord's compliance with Section 8 preeviction procedures ( see, 24 C.F.R. § 982.310 [e] [2]) bear upon the landlord's prima facie case and are waivable by the tenant, and do not, tenant's claims notwithstanding, implicate the subject matter jurisdiction of the court ( see generally, Jackson v. New York City Hous. Auth., 88 Misc.2d 121).
Jennie Realty Co. v. Sandberg ( 125 Misc.2d 28, 29), cited by the tenant, is not to the contrary. In Jennie Realty, this court adopted the argument timely raised by the tenant therein that a landlord must show compliance with Section 8 preeviction requirements in order to "establish its prima facie case" in nonpayment as well as holdover proceedings. Neither Jennie Realty nor any other known precedent supports the tenant's apparent contention that a Section 8 tenant can actively but unsuccessfully defend an eviction proceeding on the merits, take no steps to pursue a direct appeal from an adverse merits determination and, after a full year's delay, secure a dismissal of the proceeding by couching in jurisdictional terms a technical argument relating to the sufficiency of the landlord's stipulated-to prima facie case.
We note finally that tenant does not now challenge the propriety of the court's discretionary denial of her request for a further stay of the execution of the warrant.
In this summary eviction proceeding against a Section 8 tenant ( see, 42 U.S.C. § 1437 [f], the petition failed to specify tenant's Section 8 status or allege that the administering agency received notice of the commencement of the eviction proceeding, as required by applicable Federal regulations ( 24 C.F.R. § 982.310 [e] [2]) and the governing lease agreement. Nor is there any claim or showing that the requisite agency notification was in fact made. Dismissal of the petition is thus required ( see, Jennie Realty Co. v. Sandberg, 125 Misc.2d 28, 29 [landlord's compliance with Section 8 preeviction requirements held to be "essential element" of summary eviction proceeding against Section 8 tenant]; see also, Homestead Equities v. Washington, 176 Misc.2d 459). This is so notwithstanding tenant's failure to timely assert these issues below ( see, Willace Realty Mgt. v. Henson, 66 Misc.2d 203).
I thus respectfully dissent, and would reverse the order appealed from and dismiss the holdover petition without prejudice to landlord's right to commence a new proceeding upon proper agency notice.
PARNESS, P. J., and DAVIS, J., concur; FREEDMAN, J., dissents in a separate memorandum.