Opinion
0441-20
11-20-2020
LEVISTER REDEVELOPMENT CO. LLC, Petitioner-Landlord, v. Antonio PENA, Respondent-Tenant.
Joseph Chiantella, Esq., Gutman, Mintz, Baker & Sonnenfeldt, LLP, Attorneys for Petitioner, 813 Jericho Turnpike, New Hyde Park, NY 11040 Michelle Sagiv, Esq., Legal Services of the Hudson Valley, Attorneys for Respondent, 100 East 1st Street, Suite 810, Mount Vernon, NY 10550
Joseph Chiantella, Esq., Gutman, Mintz, Baker & Sonnenfeldt, LLP, Attorneys for Petitioner, 813 Jericho Turnpike, New Hyde Park, NY 11040
Michelle Sagiv, Esq., Legal Services of the Hudson Valley, Attorneys for Respondent, 100 East 1st Street, Suite 810, Mount Vernon, NY 10550
Lyndon D. Williams, J.
Petitioner commenced this nonpayment proceeding in February 2020 seeking to recover rental arrears in the amount of $5,984.00 for the period of July 2019 through February 2020. The petition provides that the premises are not subject to the ETPA because it a Fair Market Building. On March 5, 2020 respondent appeared without counsel. The matter was adjourned to March 19, 2020 for respondent to appear with an attorney. On March 16, 2020, the COVID-19 pandemic required the adjournment of landlord tenant matters until further administrative order. On August 11, 2020, Legal Services of the Hudson Valley entered a Notice of Appearance on behalf of respondent. A Verified Answer was filed on August 28, 2020. Respondent filed a Motion to Dismiss on October 6, 2020.
Respondent now moves to dismiss on the grounds that 1) the petition is defective for failure to plead the regulatory status of the subject premises and 2) the petition fails to identify the correct months for which respondent owes rent.
Petitioner opposes the motion.
Respondent argues that the petition is defective because petitioner failed to plead the regulatory status of the tenancy. Respondent Antonia Pena affirms in his affidavit that his tenancy is subject to the Low Income Housing Tax Credit Program ("LIHTC"). He also affirms that the petition does not properly identify the correct months that he owes for, or the correct total balance of arrears.
In opposition to the motion, the petitioner argues that the respondent has failed to establish the regulatory status of the subject premises by failing to submit documentary evidence in his initial motion papers to support his claim. Petitioner argues that even if it failed to state the regulatory status of the tenancy, such misstatement about the rent regulatory status is amendable as respondent failed to demonstrate any prejudice from this omission. Petitioner further argues that it has properly plead the outstanding arrears owed by the respondent. Petitioner argues that it applied the payments made by respondent to the earliest outstanding arrears. Petitioner argues the accuracy of the calculation of rental arrears by the petitioner is a factual matter for trial and not the proper subject for a motion to dismiss.
In reply, respondent argues that the failure to plead the regulatory status of the tenancy is a fatal defect requiring dismissal of the petitioner. Respondent also rejects petitioner's claim that respondent had the burden of proof in demonstrating the regulatory status of the tenancy. Respondent argues that petitioner was on notice that the premises are governed by LIHTC, as this information is included in respondent's lease rider which respondent's counsel avers was provided to her by petitioner's counsel. A copy of the lease rider is attached to the papers as Exhibit A. Specifically, Paragraph 4 of the rider to the lease states, "The terms under which the Tenant may occupy the apartment are governed by the Low Income Housing Tax Credit ("LIHTC") program, described in Section 42 of the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations under the Internal Revenue Service ...."
A summary proceeding is a special proceeding governed entirely by statute and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction (See Goldman Bros. v. Forester , 62 Misc 2d 812 [NY Civ. Ct. 1970] ). A petition in a summary proceeding is sufficient if it sets forth sufficient facts so that respondent may adequately frame a defense ( Tompkins Park-St. Marks Associates v. Boz Boz II Enterprises, Ltd. , 177 Misc 2d 949 [1998] ).
RPAPL § 741 provides that a petition must state, inter alia , the interest a tenant has in the premises and the facts upon which a proceeding is based. When the tenancy is subject to a specific rent regulation, the petition must state the tenant's regulatory status because this status will determine the scope of the tenant's rights in the summary proceeding ( Cintron v. Pandis , 34 Misc 3d 152 (A) [ App Term, 9th & 10th Jud Dists 2012] ). Despite its amendability, a petition that fails to sufficiently state the facts upon which it is based may be dismissed ( Jericho Project Lessee v. Marte-Travera , 67 Misc 3d 1204 (A) [Civ Ct. Bronx Co. 2020] ). A simple misstatement concerning the regulatory status of a tenancy will not render the petition jurisdictionally defective (Routolov Garzillo , 86788/15, NYLJ 1202781160330 at 1 [Civ Ct. Kings Co., Decided February 16, 2017]; 2017 NYLJ LEXIS 659 (citing 17th Holding LLC v. Rivera , 195 Misc 2d 531 [2d Dept 2002] ) and may be overlooked where no prejudice results to the tenant ( Park Props. Assoc., LP v. Williams, 38 Misc 3d 35 [App Term 9th & 10th Jud Dists 2012] ). However, where a petition contains ‘fundamental misstatements and omissions’ it will be dismissed ( Cintron v. Pandis, 34 Misc 3d 152(A) (citing Jeffco Mgt. Corp. Local Dev. Corp. of Crown Hgts., 22 Misc 3d 141 (A) [App. Term 2d, 11th 7 13th Jud Dists 2009]; see also McFadden v. Sassower, 26 Misc 3d 141(A) [App Term, 9th & 10th Jud Distst 2010] ).
In the instant case, the petition clearly states that the respondent entered into possession of the subject premises under a written rental agreement, wherein respondent promised to pay rent in the amount of $748.00 per month. The petition also states the premises are not subject ETPA because it is a Fair Market Building. Petitioner did not dispute that the tenancy is subject to the LIHTC program but seeks to shift the burden to the respondent to prove the regulatory status. However, the law is clear that the petitioner has the burden to plead the correct regulatory status of the tenancy in the petition. Moreover, respondent's submission of the rider agreement in its reply papers is permissible, and petitioner could have submitted same in its opposition papers, yet it failed to do so.
In Westchester Gardens, LP v. Lanclos, 43 Misc 3d 681, [Civ Ct Bx Co 2014] ), the court granted the respondent-tenant's motion to dismiss the summary proceeding where the petition, although it asserted that the premises were subject to the New York City Rent Stabilization Law and Code, failed also to specify that the tenancy is also subject to the Shelter Plus Care Program, a rental subsidy governed by the CFR [Code of Federal Regulations], as well as two additional regulatory agreements with New York City, and subject to the Low Income Housing Credit regulations. The court noted that the landlord's failure to mention the other applicable federal, state and local regulatory schemes was "fatal to this proceeding because neither tenant nor the court were put on notice of the laws governing the tenancy or the substantive rights involved. In E. 129th St. Cluster, LP v. Blizzard , 2017 NYLJ LEXIS 2461 [Civ Ct. New York Co. 2017], the court granted respondent's motion to dismiss the summary proceeding and denied the petitioner's motion to amend upon a finding that the petitioner's failure to plead the premises were subject to the Low Income Housing Tax Credit prevented the respondent from crafting an informed defense and was thus prejudicial to the respondent. The court held that "it is disingenuous to argue that respondent suffered no prejudice by the pleading defect on the basis that respondent had displayed extensive knowledge of the regulatory status and the rules and regulations ...."
Here the Court finds that petitioner's failure to plead the LIHTC regulatory status of the premises was a fundamental omission, as petitioner failed to comply with an essential statutory requirement, thereby prejudicing respondent tenant. "Similar to the reasons given for the dismissal of the petition in Volunteers of Am-Greater NY Inc. [65 AD3d 1155 ], the instant premises are also part of a federally subsidized program and subject to governmental contracts which the landlord neglected to specify" ( Westchester Gardens, L.P. v. Lanclos, 43 Misc 3d 681 ) Petitioner, also did not cross-move to amend the petition to reflect the correct regulatory status nor attach a copy of the proposed amended pleading to its papers. CPLR 3025 (b) provides that "[a]ny motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading." This failure to cross-move and attach the amended papers provides another basis for the granting of respondent's motion to dismiss (Id. ( citing Sirohi v. Lee , 222 AD2d 222, 223 ; 643 NY2d 119 [1995]; lv dismissed in part and denied in part 88 NY2d 897, 670 NE2d 219, 646 NYS2d 979 [1996] ; see also Joseph M. D'Assern House Corp. v. Day, 24 Misc 3d 132(A) [App Term 9th & 10th Jud Dst. 2009] ) (landlord's failure to plead Mitchell-Lama regulatory status and seek leave to amend the petition warrants dismissal of the petition); Bsdc Kings v. Covenant Hdfc v. Benjamin , 2017 NYLJ LEXIS 1549 [Civ Ct. Kings Co. 2017 (landlord's failure to plead NYC Department of Housing Preservation and Development regulatory agreement between the parties and cross-move to amend pleading warrants dismissal of petition)).
Accordingly, for the reasons stated above the Court finds that the petition contains fundamental misstatements and omissions necessitating dismissal of the action. [ Migliaccio v. Childs , 65 Misc 3d 131 (A) [2d Dept. 2019]; [ Brookwood Coram I, LLC v. Oliva , 47 Misc 3d 140(A) ; Citron v. Pandis , 34 Misc 3d 152 (A) [2d Dept. 2012]; Dwyer v. Wimbush , 62 Misc 3d 1213 (A) (City Ct. Mt. Vernon 2019] ). To the extent respondent seeks dismissal on other grounds the motion is denied as moot.
Motion to dismiss granted.
This constitutes the Decision and Order of this Court.
The court considered the following papers on this motion: Notice of Motion to Dismiss, dated October 6, 2020; Attorney Affirmation; Pena Affidavit; Exh. A. Affirmation in Opposition, dated October 16, 2020; Exh. 1-2. Reply Affirmation, dated October 26, 2020; Exh. A-B .