BACKGROUND

Petitioner issued a Thirty Day Notice To Terminate and Quit on January 22, 2014,terminating Respondent's tenancy as of February 28, 2014. The Notice of Petition and Petition were issued on March 6, 2014, and the proceeding was initially returnable on March 19, 2014.

On May 1, 2014, Respondent and Fisher appeared by counsel and the parties stipulated to a trial date of June 3, 2014. Respondent agreed to file an answer by May 9, 2014, or same would be deemed an general denial. Respondent never filed a written answer. On July 1, 2014, the proceeding was assigned to Part L for trial. The trial commenced and concluded on July 1, 2014. Post trial memorandum were submitted on July 8, 2014, and the Court reserved decision. RELATED NON PAYMENT PROCEEDING

INDEX NO 52970/14

There is a simultaneously pending nonpayment proceeding between the parties. On January 17, 2014, Petitioner issued a three day demand for rent in seeking $7325.00, in arrears from February 2013 through January 2014, at a monthly rate of $950.00. The Petition and Notice of Petition issued January 29, 2014. Respondent filed a pro se answer on February 4, 2014, alleging a portion of the rent had already been paid, breach of warranty of habitability and a general denial. The proceeding was initially returnable in Part C, on February 11, 2014, and settled pursuant to a stipulation, wherein Respondent, appearing pro se, consented to a judgment in the amount of $4300.00, "as all rent due through Feb. 2014," forthwith issuance of the warrant of eviction, with execution stayed pursuant to a payment schedule that ran through March 25, 2014, and provided for repairs. The warrant of eviction issued on February 20, 2014.

On March 24, 2014, Respondent moved for a stay on execution of the warrant. On the return date, Respondent appeared by counsel. The motion has been adjourned five times since then, and is currently returnable on September 10, 2014.

Petitioner is the owner of the Subject Premises, pursuant to a certified deed dated

Respondent paid first month rent and security deposit when she moved in. Petitioner did not receive a rent payment the second month of Respondent's tenancy, but did receive one the following month. Respondent made other sporadic payments through the commencement of this proceeding. Petitioner entered a rent breakdown into evidence (Exhibit 7A), wherein Petitioner acknowledged receipt of $1900.00 in January 2014, $2500.00 in March 2014, and $3700.00 in April 2014, from Respondent as rental payments.

Both parties acknowledge that repairs were needed to the Subject premises at the inception of Respondent's tenancy. Respondent testified that said repairs were never made by Petitioner.Respondent acknowledged she had failed to pay rent timely during her tenancy.

Respondent was given credit by Petitioner for all receipts presented at trial.

Petitioner is an HDFC as such Petitioner must establish good cause to evict Respondent and Respondent is entitled to the protection of procedural due process in the determination as to whether good cause exists (Hudsonview Terrace v Maury 100 Misc 2d 331; 512 East 11th Street HDFC v Grimmet 181 AD2d 488 ).

"A covenant to pay rent at a specified time ... is an essential part of the bargain as it represents the consideration to be received for permitting the tenant to remain in possession of the property of the landlord. Often the landlord relies on timely payment of rent to meet its own outstanding obligations, such as a mortgage on the demised premises [Fifty States Management Corp v Pioneer Auto Parks, Inc. 46 NY2d 573, 578]." While Respondent had no written lease specifying the date in a month by which she must pay rent, the parties' oral agreement presumed rent would be paid for each month prior to the end of said month. It is uncontested that in January 2013, Respondent moved in and paid two months security deposit and one month rent. Respondent made no payment in February 2013. Respondent paid rent timely for March through June 2013, but failed to make any payments in July or August 2013. Respondent paid one month rent in September 2013, but failed to make any payment for October through December 2013 resulting in a balance of arrears as of December 2013 of $4725.^[FN1]

In sum it is a fair assessment to say that for most of Respondent's short term tenancy she was in arrears. Petitioner has thus established good cause for the underlying eviction. Petitioner a low income HDFC was prejudiced by Respondent's consistent failure to meet her rental [*3]obligations. Petitioner did not establish that Respondent's failure to pay rent on time rose to the level of substantial breach of obligation of tenancy sufficient to evict a rent regulated tenant. Such a cause of action would require Petitioner to establish a certain number of summary proceedings had to be instituted to collect the rent [see eg Adams' Tower Limited Partners v Richter 186 Misc 2d 620 (App Term, 1st Dept)].

However the standard of just cause in the case at bar is lower. Due process requires that Respondent be given notice of the alleged cause for the eviction and that the Petitioner establish just cause. While such termination need not be based on detailed previously promulgated regulations, due process requires that the termination not be arbitrary or capricious ( Lopez v Henry Phipps Plaza South, Inc. 498 F.2d 937, 946). In addition to asserting a non arbitrary or capricious basis for the eviction, Respondent is entitled to procedural due process which requires essentially notice and an opportunity to be heard and has been held to be satisfied by trial of the issues in state courts (Hudsonview Terrace v Maury 100 Misc 2d 331; Joy v Daniels 479 F.2d 1236).

Respondent filed no written answer and has asserted no affirmative defenses in this proceeding. Affirmative defenses, such as those set forth in CPLR 3018(b) are as a general rule waived if not raised in the pleadings (Surlak v Surlak 95 AD2d 371; Butler v Catinella 58 AD3d 145). This would include any defense based on waiver or creation of a new tenancy, asserted by Respondent's counsel in post trial memoranda. In addition to failing to assert said affirmative defenses in a pleading, Respondent offered no testimony at trial as to the parties intention to create a new tenancy or on the issue of waiver.

The court finds that Petitioner has established a prima facie case, including a valid termination of tenancy. While Petitioner commenced a nonpayment proceeding which is pending simultaneously, the judgment entered in that proceeding was only for rent due through February 2014. This is a period prior to the termination of the tenancy. Respondent failed to establish any rent was accepted by Petitioner for any period after the termination of the tenancy, February 28, 2014, and prior to the commencement of this proceeding. The monies accepted by Petitioner in January 2014, were for a period prior to February 28, 2014. The next monies tendered and accepted were in March 2014 , but the Respondent's own proof of mailings (Exhibit C) indicate that these would have been received by Petitioner after March 10, 2014, the date the notice of petition and affidavits of service were filed with the court (RPAPL §731(1); NYCCA § 400). Any payments after March 10, 2014, are after the commencement of this proceeding and thus can not affect Petitioner's right to maintain this proceeding pursuant to RPAPL §711(1).Based on the forgoing, Petitioner is entitled to a final judgment of possession as against both Respondent and Anthony Fisher. The warrant of eviction shall issue forthwith, execution of the warrant is stayed through November 28, 2014, to afford Respondents an opportunity to vacate, conditioned upon payment of $950 per month for August use and occupancy within ten days of the receipt of this decision, and $950.00 per month for September through November 2014 by the 20th of each month. As no evidence was presented by Petitioner in reference to "Jane Doe" the proceeding is dismissed as to "Jane Doe."[*4]This constitutes the decision and order of this Court.^[FN2]

Sabrina B. Kraus, JHC