City Court of Watertown, November 18, 2019

John Parmeter, Jr., Watertown, for petitioners.

The Legal Aid Society of Mid-New York, Inc. (Robert Peace of counsel) for respondent.

On October 17, 2019, petitioners lessors, Joseph Lawler and Christian Lawler, filed with this court a notice of petition and petition against respondent lessee, Raheem Canfield, seeking, among other things, a final judgment of eviction, an order awarding possession of the premises and a money judgment for nonpayment of rent. The premises are located at 323 Sterling Street No. 2, Watertown, New York. Petitioners also filed two affidavits of service indicating that (1) respondent was served with a 14 day notice by personal delivery on September 6, 2019, and (2) the petition and notice of petition were served upon respondent via substituted service by affixing a copy to his place of dwelling and mailing a copy to his last known address by certified and regular first- class mail.

Petitioners alleged that respondent entered into possession of the property subject to this proceeding pursuant to a monthly lease agreement whereby payment in the amount of $500 per month was to be made for the use and occupancy of said premises. Petitioners further assert that respondent failed to pay the agreed upon rent which included a pro rata amount due and owing for the month of August of 2019 and the full amount due for September 2019. As such, petitioners claim damages for the failure to pay rent in an amount totaling $720.

The parties appeared before the court on October 31, 2019. In delivering an oral answer, respondent admitted that rent was due and owing as alleged in the petition, but made an application to dismiss the summary proceeding arguing that a written notice of rent delinquency was not provided as prescribed by Real Property Law § 235-e (d). Respondent also requested a traverse hearing alleging that he did not receive the predicate notice and asserted issues related to the habitability of the premises. Respondent requested an adjournment to file with the court and serve upon opposing counsel a written{**66 Misc 3d at 314} answer and counterclaim. The matter was adjourned for further proceedings to November 6, 2019.

On November 4, 2019, the respondent submitted a verified answer and counterclaim and set forth that (1) contrary to the contents of the affidavit of service petitioners failed to serve the 14 day notice as required by Real Property Actions and Proceedings Law § 711 (2) which warrants dismissal of the action or in the alternative a traverse hearing be held; (2) petitioners failed to send a written notice, by certified mail, to respondent indicating rent was due pursuant to Real Property Law § 235-e (d) and, therefore, the proceeding should be dismissed; and (3) during the term of the tenancy and occupancy the conditions of the property were unsafe and unsanitary requiring an abatement of rent.

At the conclusion of the proceedings on November 6th a trial date was selected to determine issues pertaining to the respondent's claim of a breach of the implied warranty of habitability and the parties were notified that a written decision would be rendered to address the remaining issues which were brought forth.

In light of the issues subject to this proceeding the court will note that upon examination of the written 14 day notice the alleged amount due and owing is provided and also set forth is notice that in the event payment is not made within the prescribed time frame a summary proceeding would be commenced to recover possession of the property. Furthermore, the affidavit of personal service indicates that the 14 day notice was served upon respondent on September 6, 2019, at 10:45 a.m. at 323 Sterling Street No. 2 in the City of Watertown. The affidavit also states that the individual serving the notice "knew the person so served to be the person described as said respondent's therein named."

Traverse Hearing/In Personam Jurisdiction

Typically, an affidavit of service is sufficient to establish a prima facie case as to the sufficiency of service and rises to the level of creating a presumption that service was properly effectuated. (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896 [2d Dept 2013].) However, such presumption can be rebutted upon detailed and specific facts being set forth by the defendant which in turn would warrant a traverse hearing. Upon the commencement of the hearing to determine the validity of{**66 Misc 3d at 315} service, a petitioner has the burden of demonstrating, by a preponderance of the evidence, that jurisdiction has been obtained. (Wells Fargo Bank, NA v Chaplin, 65 AD3d 588 [2d Dept 2009].)

A defect in service is not cured upon a party actually receiving notice at a later time or date after that indicated on the affidavit of service. (Krisilas v Mount Sinai Hosp., 63 AD3d 887 [2d Dept 2009].) It has long been held that service of process must be made in strict compliance with statutory provisions and a "defendant's eventual awareness of pending litigation will not affect the absence of jurisdiction" when service is not in accordance with the appropriate methods prescribed by law. (Washington Mut. Bank v Murphy, 127 AD3d 1167, 1174 [2d Dept 2015].) Thus, the court finds that a written demand for rent must be made in conformance with Real Property Actions and Proceedings Law § 711 (2) which requires service being effectuated in the same manner as the notice of petition and petition.

Respondent submits in his verified answer and counterclaim a denial of personal receipt of the 14 day notice contrary to the affidavit of service. Respondent also specifically claims that the notice was "placed in an unmarked envelope in the mailbox" which was the exclusive delivery method and means of notification to respondent that demand was being made.

In opposition to the relief being requested, petitioners entered general denials to respondent's claims. The court notes that a "bare and unsubstantiated denial of service [lacks] the factual specificity and detail required to rebut the prima facie proof of proper service set forth in [the] affidavit of service." (Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719, 719 [2d Dept 2014].) The court recognizes that while a denial of service, under most circumstances, rebuts the presumption of service it is not absolute in that there must be specific facts in conflict with the assertions made in the affidavit of service. Furthermore, absent such facts, a hearing on the validity of service is not warranted. (City of New York v Miller, 72 AD3d 726 [2d Dept 2010].)

The court finds that respondent has demonstrated a material issue of fact exists as to the proper service of the 14 day notice and such notice is a condition precedent to the court obtaining proper jurisdiction for this matter to be considered. Respondent articulates that personal service was not effectuated and alleges specific circumstances contrary to those in the{**66 Misc 3d at 316} affidavit of service. As such, the burden now rests upon petitioners to demonstrate at a traverse hearing, by a preponderance of the evidence, that valid service has been effectuated upon respondent. (Ezragim Assoc., LLC v J.H. Design, Inc., 4 Misc 3d 130[A], 2004 NY Slip Op 50684[U] [App Term, 1st Dept 2004].)

Real Property Law § 235-e (d)

In light of the court's finding that personal jurisdiction of this proceeding is subject to a traverse hearing, consideration will be given to respondent's application for dismissal based upon alleged noncompliance with the recently enacted provisions of Real Property Law § 235-e (d). While there has been no case law on this issue, respondent argues that dismissal of this matter is warranted due to information contained on the New York State courts website and that service of a 14 day demand is not sufficient notice of nonpayment within the meaning of Real Property Law § 235-e (d).

Pursuant to the Housing Stability and Tenant Protection Act of 2019 several amendments and additions to Real Property Law § 235-e were enacted, including the provision set forth in subdivision (d) which states:

"(d) If a lessor, or an agent of a lessor authorized to receive rent, fails to receive payment for rent within five days of the date specified in a lease agreement, such lessor or agent shall send the lessee, by certified mail, a written notice stating the failure to receive such rent payment. The failure of a lessor, or any agent of the lessor authorized to receive rent, to provide a lessee with a written notice of the nonpayment of rent may be used as an affirmative defense by such lessee in an eviction proceeding based on the nonpayment of rent."

The court finds that while a statutory obligation rests upon a lessor to provide notice to a lessee, upon nonpayment of rent, there is no penalty incorporated into the law upon a finding of noncompliance. The court will note that prior to enactment of subdivision (d), other provisions of Real Property Law § 235-e placed a burden upon lessors to provide written notice to lessees such as receipts for payments of rent.

In determining respondent's request for dismissal of this proceeding, inquiry needs to be made as to sanctions imposed pursuant to Real Property Law § 235-e which govern the lack of certain notice being provided by lessors to lessees. For{**66 Misc 3d at 317} instance, in Mayflower Props., LLC, v Pacheco (64 Misc 3d 1216[A], 2019 NY Slip Op 51180[U] [Civ Ct, NY County 2019]), the court determined there was a failure by the lessor to provide proper written receipts for rent which was in violation of the provisions of Real Property Law § 235-e. The court additionally found that while the statute does not specifically describe "the consequence or penalty to the landlord for noncompliance with these sections," the lessor was precluded from collecting for rents allegedly owed based upon the petitioner's (lessor's) inconsistent records. (Mayflower, 2019 NY Slip Op 51180[U], *2.)

Further, due to the lack of guidance within Real Property Law § 235-e, some courts have set forth proposed amendments to the legislation to address the lack of statutory sanctions upon [*2]breach of a landlord's obligation to provide a written receipt for rent due. (Robinson v Robles, 28 Misc 3d 868 [Rochester City Ct 2010].) While there is no penalty for the failure to provide a receipt in the Real Property Law, courts have found that such failure is a factual dispute which should be resolved in the favor of a tenant when there is a question of doubt. (Palmieri v Hernandez, 127 Misc 2d 369 [Mount Vernon City Ct 1984].)

In the case before the court, there is no genuine, factual issue raised by respondent that rent was paid, or that the amount claimed by petitioners is not accurate. Because of this, an affirmative defense in Real Property Law § 235-e (d) is not available.

While the provisions cited by counsel appearing on the New York State courts website indicate that noncompliance with Real Property Law § 235-e (d) is a "reason" to warrant dismissal, it is not conclusive that dismissal must be granted nor is it binding on the court. As such, the court finds that the lack of providing notice pursuant to Real Property Law § 235-e (d) is not jurisdictional in nature and dismissal would not be warranted even upon a finding after trial of noncompliance.

Therefore, based upon the findings herein, the statutory amendment and language included as part of Real Property Law § 235-e (d) warrant the court to consider the failure to provide written notice of nonpayment of rent as an affirmative defense only where there is a genuine issue of a fact in a nonpayment proceeding. Here, we do not have a genuine issue of fact because of the admissions made by respondent during his first court appearance that his rent payments are, in fact,{**66 Misc 3d at 318} due and owing to petitioners. Had there been raised a genuine issue of fact as to whether rent monies were paid to petitioners, in whole or in part, lack of a written notice stating the failure to receive such rent payment would be an affirmative defense incumbent upon respondent to plead and prove at trial. At the conclusion of such trial, and where a respondent lessee successfully shows a question of doubt as to whether rent was paid, the affirmative defense in Real Property Law § 235-e (d) may permit the court to preclude the collection of rent as a consequence for noncompliance.

Real Property Law § 235-b

Pursuant to Real Property Law § 235-b an implied warranty of habitability is created upon the entering of a landlord-tenant relationship and the promise that the leased property is suitable for human occupancy.

As a further basis to support this finding the court will first note, that as discussed in Daniel Finkelstein & Lucas A. Ferrara, Landlord and Tenant Practice in New York § 9:4 (West's NY Prac Series 2018-2019):

"Since the fundamental purpose of the warranty of habitability is to protect tenants from dangerous conditions and to provide a remedy for deprivations of essential services, the statute is interpreted broadly and expansively. One court has gone so far as to state that '[i]t is clear from the unequivocal language of the statute, and the broad application of its protective mantle by the cases which have applied it, that [RPL] section 235-b excludes no residential tenant and includes all persons and entities as "landlords" ' " (footnotes omitted).

Respondent asserts a breach of the implied warranty of habitability has occurred, in that the petitioners did not timely resolve issues relative to an insect infestation on the premises, a window in a living area was damaged which led to the respondent covering it to keep animals from entering the property and other concerns of disrepair which had not been resolved. The court finds that all of these allegations are genuine issues of fact which warrant a hearing as to nonpayment of rent and whether an abatement would be appropriate (Smith v Perriello, 85 AD3d 895 [2d Dept 2011]).

As such, upon conclusion of the traverse hearing, consideration will be given as to the counterclaim and affirmative defense based upon implied warranty of habitability.{**66 Misc 3d at 319}

The parties shall appear before the court on November 21, 2019, at 2:30 p.m. at which time a traverse hearing shall commence as to the sufficiency of service and personal jurisdiction over respondent. Thereafter, if jurisdiction is demonstrated, petitioners' claim of nonpayment of rent will be entertained along with the breach of implied warranty of habitability defense asserted by the respondent.