Civil Court of the City of New York, Bronx County, February 26, 2018

Bronx Legal Services, Bronx (Roland Nimis of counsel), for Leslie Scevens, respondent.

Urban Justice Center, Safety Net Project, New York City (Raven Dorantes of counsel), for Kenya Myers, respondent.

Jason M. Simensky, New York City, for petitioner.

For the following reasons, respondent Leslie Scevens' [*2]motion to dismiss, respondent Kenya Myers' motion to dismiss and for summary judgment and petitioner's cross motion for leave to amend the petition and for use and occupancy (U & O) are consolidated for disposition and decided as follows.

This is a licensee eviction proceeding based on a predicate 10 day notice to quit which alleges that the former tenant,{**59 Misc 3d at 652} Tyshawn Rowe, moved out of the subject premises. Respondents are alleged to be Mr. Rowe's licensees, whose license "expired and terminated by virtue of his moving out of the apartment," and whose occupancy is without the landlord's permission. The petition, dated July 11, 2017, and originally returnable August 9, 2017, states that the premises are subject to rent stabilization and are duly registered as such with the New York State Division of Housing and Community Renewal (DHCR). The petition states that no rent or use and occupancy has been accepted from respondents and seeks use and occupancy at the monthly rate of $946 along with a judgment of possession.

By motion returnable January 5, 2018, respondent Leslie Scevens, by Bronx Legal Services, seeks dismissal under CPLR 3211 (a) (1) and (2) based on documentary evidence and for lack of subject matter jurisdiction on the grounds of failure to plead the regulatory status of the premises. In addition to being subject to rent stabilization, which is pleaded in the petition, respondent asserts that there is a regulatory agreement between petitioner and the City which subjects the premises to the federal "HOME Investments Partnerships Program," which is governed by rules and regulations that differ from the Rent Stabilization Code and which limits maximum rents to "the lesser of the fair market rent or 30% of 60% of the Area Median Income ('AMI') adjusted for the number of bedrooms in the unit, less any utilities and services paid by the tenant." (Attorney's affirmation, Jan. 2, 2018, ¶ 7.) A copy of the regulatory agreement, dated November 24, 2010, is attached to the motion papers as exhibit C. Respondent asserts that the petition's failure to plead that the premises "are part of a federally subsidized program and subject to governmental contracts" (id. ¶ 18) is an error which deprives the court of jurisdiction and mandates dismissal.

By motion returnable February 14, 2018, respondent Kenya Myers, by the Urban Justice Center, seeks dismissal under CPLR 3211 and summary judgment under CPLR 3212 on two grounds: (1) failure to serve a predicate notice and notice of petition and petition; and (2) failure to properly state the premises' regulatory status. On the first ground, the attorney for respondent Myers asserts that "the predicate notice provided by Petitioner in the court file was never received by Respondent" (attorney's affirmation, Feb. 6, 2018; id. ¶ 10), and that neither respondent "nor her attorney of record were {**59 Misc 3d at 653}served with a Notice of Petition or Petition" (id. ¶ 12). On the second ground, respondent Myers makes the same argument made by respondent Scevens: that the petition should be dismissed as it fails to mention that the premises are subject to the federal HOME program, which is governed by rules and regulations that differ from the Rent Stabilization Code.

Petitioner opposes, and by cross motion returnable February 14, 2018, seeks an order (1) amending the petition nunc pro tunc to reflect that the premises are subject to a regulatory agreement dated November 24, 2010, between petitioner and the New York City Housing Development Corporation and (2) requiring respondents to pay use and occupancy. Petitioner attaches a copy of the surrender agreement signed by the former tenant of record, Tyshawn Rowe, on June 5, 2017, and copies of Mr. Rowe's original rent-stabilized lease and most recent renewal lease, showing that he was the sole tenant. Petitioner asserts that the regulatory [*3]agreement subjects the premises to the "Low Income Housing Tax Credit Program" under which petitioner provides housing to low-income tenants in exchange for tax credits. Petitioner argues that the petition should not be dismissed and leave to amend should be granted as omission of a reference to the regulatory agreement is a de minimis error which has caused no undue prejudice or surprise to the respondent occupants.

As for use and occupancy, petitioner points out that more than 30 days have elapsed since the parties first appeared before the court and it is entitled to an order under section 745 (2) (a) of the Real Property Actions and Proceedings Law, which requires the court to direct respondents to pay use and occupancy (or deposit it with the court), ongoing and from the date the notice of petition and petition were served. Petitioner asks for the use and occupancy to be set at a monthly rate of $946, the amount in the tenant of record's most recent rent-stabilized renewal lease.

Motion to Dismiss and Cross Motion to Amend Petition—Regulatory Agreement

Section 741 of the Real Property Actions and Proceedings Law requires that the petition in a summary eviction proceeding,

"1. State the interest of the petitioner in the premises from which removal is sought.{**59 Misc 3d at 654}

"2. State the respondent's interest in the premises and his relationship to petitioner with regard thereto.

"3. Describe the premises from which removal is sought.

"4. State the facts upon which the special proceeding is based.

"5. State the relief sought."

Thus, under RPAPL 741, where a tenancy is subject to a specific type of regulation, the general rule is that the petition must state the premises' regulatory status, as it may determine the scope of the parties' rights and defenses. (MSG Pomp Corp. v Doe, 185 AD2d 798 [1st Dept 1992] [reversing lower courts, vacating a judgment which had been entered against the respondent pro se who claimed to be a member of the tenant of record's household and dismissing licensee holdover petition which contained misstatements as to the premises' ownership and rent regulatory status].)

Respondents' motions to dismiss, based on the regulatory agreement between petitioner and the City, are brought under CPLR 3211 (a) (1) on the ground that the proceeding is barred by documentary evidence. A motion under CPLR 3211 (a) (1) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 88 [1994].)

Respondents assert that while the petition states that the premises are subject to rent stabilization and have been registered with the DHCR, it fails to mention that they are also subject to a regulatory agreement with the City. Respondents argue that dismissal is warranted as "an error which omits such a fundamental aspect of the regulatory status deprives the court of jurisdiction" (affirmation of respondent Leslie Scevens' attorney ¶ 20; affirmation of respondent Kenya Myers' attorney ¶ 17). Respondents cite to MSG Pomp Corp. v Doe and to Matter of Volunteers of Am.-Greater N.Y., Inc. v Almonte (65 AD3d 1155 [2d Dept 2009]), which held that the lower court erred in granting a posttrial judgment of possession in favor of the petitioner landlord for, inter alia, failure to allege the existence of a contract between the landlord and the City which provided the respondent tenant with certain potential defenses.{**59 Misc 3d at 655}

In Almonte, the Court explained:

"The City of New York owns the building in which the subject premises are located. The Department of Homeless Services (hereinafter the DHS) operates the building as a single room occupancy (hereinafter SRO) facility, providing SRO units to 174 homeless adults. The DHS has designated 53 of the units for persons with a history of mental illness. The tenant of the subject premises (hereinafter the tenant), who has been classified as 'persistently mentally ill,' has resided at the subject premises for over 10 years." (65 AD3d at 1156.)

Further, the contract between DHS and the petitioner in Almonte "designates, among other things, the amount of rent each tenant will pay, when the petitioner is to collect the rent, and how the petitioner is to spend the collected rents." (Id.) The Court concluded:

"We agree with the Appellate Term that, pursuant to RPAPL 741, in the petition the petitioner was required to allege the existence of the contract between the DHS and the petitioner, because without that allegation, the Civil Court and the tenant would be unaware that the City owned the building in which the subject premises were located, that the DHS operated that building as a SRO facility, and that the DHS contracted with the petitioner to handle the building's daily operations. The contract provided the tenant with certain potential defenses, and the Civil Court could not have properly adjudicated this proceeding without that contract." (Matter of Volunteers of Am.-Greater N.Y., Inc. v Almonte, 65 AD3d at 1157.)

[1] Respondents, who have not disputed petitioner's claim that they are mere licensees of the tenant of record, who unequivocally surrendered his tenancy in writing on June 5, 2017, assert no facts to demonstrate how the terms of the regulatory agreement between petitioner and the City in any way "provided [them] with certain potential defenses" (id.), or how the omission of a reference to the agreement in the petition is in any way prejudicial to them. By comparison, the post-Almonte decisions that find a petition's failure to mention a regulatory agreement or housing subsidy program to be a fatal omission all involve respondents who "may have defenses arising from the relevant contract." (PCMH Crotona, L.P. v{**59 Misc 3d at 656} Taylor, 57 Misc 3d 1212[A], 2017 NY Slip Op 51401[U], *3 [Civ Ct, Bronx County 2017].) For example, in Park Props. Assoc., L.P. v Williams (38 Misc 3d 35 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]), a holdover proceeding based on an alleged clutter condition, the Appellate Term, Second Department reversed the lower court and granted a tenant's motion to vacate a stipulation of settlement and judgment where the petition alleged the premises were "decontrolled" and failed to mention that the apartment is in a building which receives a project-based federal Section 8 housing subsidy. In doing so, the court explained:

"While a defect of this nature may be overlooked where no prejudice results to the tenant (see 17th Holding v Rivera, 195 Misc 2d 531 [App Term, 2d Dept, 2d & 11th Jud Dists 2002]; see also Coalition Houses L.P. v Bonano, 12 Misc 3d 146[A], 2006 NY Slip Op 51616[U] [App Term, 1st Dept 2006]), here, it cannot be said that landlord's failure to make the required allegation was not prejudicial to tenant, as the stipulation may have been the product of tenant's counsel's lack of knowledge of the fact that tenant stood to lose a Section 8 subsidy." (Id. at 37.)

PCMH Crotona, L.P. v Taylor was a nuisance holdover proceeding against the tenant of record. The court found the petition to be fatally defective under RPAPL 741 (1) and (4) as it "fails to state that the premises is supportive housing and that Petitioner accepted DHS' referral of Respondent for supportive housing due to his mental health issues and pursuant to Petitioner's contract with OMH [the New York State Office of Mental Health]." (PCMH Crotona, L.P., 2017 NY Slip Op 51401[U], *3.) The court explained:

"While a defect of this nature may be overlooked where no prejudice results to the [*5]tenant . . . , it cannot be said here that Petitioner's failure to make the required allegation was not prejudicial to Respondent, as Petitioner knew that Respondent had a mental disability at the time that Respondent entered into a stipulation unrepresented and further failed to inform the court about Respondent's mental disability. Had the Petition alleged the existence of the contract between OMH and the Petitioner, the court would have been aware of the tenant's mental disability and his need for a GAL. Furthermore, Respondent may have defenses arising{**59 Misc 3d at 657} from the relevant contract." (Id. at *2-3.)

In Westchester Gardens, L.P. v Lanclos (43 Misc 3d 681, 684 [Civ Ct, Bronx County 2014]), also a nuisance holdover proceeding, the court granted the respondent tenant's motion to dismiss 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 subject

"to the rules and regulations of the Shelter Plus Care Program, a rental subsidy governed by the CFR [Code of Federal Regulations] and authorized by title IV of the McKinney-Vento Homeless Assistance Act . . . , 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 . . . . The CFR and city contracts provided tenant with certain potential defenses, and 'Civil Court could not have properly adjudicated this proceeding without that contract' " (id. at 686, citing Almonte).

Here, respondents have not pointed to any aspect of the regulatory agreement which affects their substantive rights or why the absence of a reference to it in the petition is prejudicial to them and warrants dismissal of the proceeding. Accordingly, the petition adequately states petitioner's interest and the facts upon which this proceeding is based and the motion to dismiss is denied. (See e.g. Bailey v Suarez, 18 Misc 3d 127[A], 2007 NY Slip Op 52394[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007].) Further, petitioner's unopposed cross motion to amend the petition to include a reference to the regulatory agreement in paragraph 8 is granted, and the proposed amended petition which is attached to petitioner's cross motion papers as exhibit E is hereby deemed duly served and filed.

Summary Judgment and/or Dismissal—Service of Predicate Notice, Notice of Petition and Petition

Respondent Myers' alternative request for summary judgment pursuant to CPLR 3212 (attorney's affirmation, Feb. 6, 2018, ¶¶ 5-8) is premature as respondent has not yet served and filed an answer. (Yoda, LLC v National Union Fire Ins. Co. {**59 Misc 3d at 658}of Pittsburgh, Pa., 50 AD3d 492 [1st Dept 2008].)^[FN1] To the extent respondent Myers also seeks dismissal based solely on the conclusory statement of her attorney that she was never served with the predicate notice, notice of petition and petition (attorney's affirmation ¶¶ 9-13), the [*6]moving papers fail to state a basis to grant such relief (Matter of 2084-2086 BPE Assoc. v State of N.Y. Div. of Hous. & Community Renewal, 15 AD3d 288, 289 [1st Dept 2005], citing Zuckerman v City of New York, 49 NY2d 557, 563 [1980]), nor even to set the case down for a traverse hearing (Marston v Cole, 147 AD3d 678 [1st Dept 2017]).

Cross Motion for Use and Occupancy

A petitioner may seek a deposit of "use and occupancy" with the court^[FN2] when a respondent has requested two adjournments "or, upon the thirtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner." (RPAPL 745 [2] [a].) The two adjournments include an adjournment requested by an unrepresented respondent for the purpose of securing counsel, and the statute lists four situations in which, if certain defenses are raised, the U & O requirement is waived. The court notes that none of those situations applies here.

[2] This court has the broad discretion to award U & O pendente lite. (Alphonse Hotel Corp. v 76 Corp., 273 AD2d 124 [1st Dept 2000 mem]; Shoshany v Goldstein, 20 Misc 3d 687 [Civ Ct, NY County 2008].) As explained by Civil Court Judge Straniere in Yellen v Baez (177 Misc 2d 332, 334 [Civ Ct, Richmond County 1997]), a decision in which he held that an{**59 Misc 3d at 659} adjournment to provide an interpreter for the respondent was not chargeable to the respondent as to do so would violate the Equal Protection and Due Process Clauses of the United States and New York State Constitutions,

"The court is cognizant of the Legislature's intent to end what was perceived to be an abuse of the summary proceeding process whereby tenants were granted multiple adjournments for varying reasons while rent continued to accrue and the tenant had absolutely no financial ability to satisfy a judgment should the landlord prevail in the action. The objective of the legislation is to either require the rent to be posted and thereby secure the landlord of payment if victorious, or to have an immediate trial of the underlying issues."

Here, no considerations have been raised to implicate constitutional protections. While some of the adjournments and delay since this case first appeared on the court's calendar on August 9, 2017, were caused by petitioner, well over 30 days have passed for various other reasons and respondents have enjoyed the use and possession of the premises throughout this time period.

Accordingly, petitioner is entitled to an order requiring respondents to pay U & O at the rate of $946 per month, the amount last charged to the last tenant of record. U & O must be paid pending the determination of this proceeding, retroactive to August 2017, the month in which this case began. (Marbru Assoc. v White, 114 AD3d 554 [1st Dept 2014]; Levinson v 390 W. End Assoc., L.L.C., 22 AD3d 397 [1st Dept 2005].)

Respondents are hereby ordered to deposit with the court (unless other arrangements are made between the parties through counsel) U & O for the seven months of August 2017 through [*7]February 2018 in the amount of $6,622, along with use and occupancy of $946 for March 2018, by March 23, 2018, and to thereafter continue to make monthly U & O deposits of $946 with the court (or payments to petitioner, if the parties consent) by the 10th of each such month until this proceeding is concluded.

Respondents' motions to dismiss and/or for summary judgment are denied, petitioner's motion to amend the petition is granted, and the proposed amended petition, annexed to petitioner's cross motion papers as exhibit E, is hereby deemed{**59 Misc 3d at 660} duly served and filed. Petitioner's motion for an order requiring payment of U & O is also granted, nunc pro tunc and pendente lite, and respondents must pay, or deposit with the court, the sum of $7,568 by March 23, 2018.