ELG 1275 LLC v. Reyes

48 N.Y.S.3d 265 (Table)

ELG 1275 LLC, Petitioner–Landlord,

v.Veronica REYES, Respondent–Tenant.

No. 37686/2016.

Civil Court, City of New York, Bronx County.

Oct. 20, 2016.

Arun Perinbasekar, Esq., Sidrane & Schwartz–Sidrane, LLP, Rockville Centre, Attorney for Petitioner.

Sara E. Smith, Esq., Legal Services NYC, Bronx, Attorney for Respondent.

DIANE E. LUTWAK, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Motion for Leave to File Amended Answer, Summary Judgment, Sanctions and Attorneys' Fees:

Respondent's Notice of Motion & Attached Affirmation, Affidavit and Exhibits A–K	1
Respondent's Memorandum of Law	2
Petitioner's Affirmation in Opposition & Attached Exhibits A–C	3
Affirmation in Reply	4

Upon the foregoing papers, the Decision and Order on this Motion are as follows:

BACKGROUND

This is a proceeding for nonpayment of rent brought against a Rent Stabilized tenant whose rent is subsidized by the federal Section 8 Housing Choice Voucher Program, administered by the New York City Housing Authority ("NYCHA"). Petitioner seeks a final judgment for possession of the premises and a money judgment for rent arrears of $4212.77, comprised of the tenant's share of the rent for the months of July and August 2012, July and August 2013, April 2015 and November 2015 through June 2016. Both parties are represented by counsel. Respondent moves for leave to interpose an amended answer, summary judgment and dismissal of the proceeding, sanctions and attorneys' fees. For the reasons discussed below, this Court grants respondent's motion to the extent of deeming the proposed amended answer duly served and filed, granting summary judgment and dismissing the petition without prejudice.

PROCEDURAL HISTORY

Prior to commencing this proceeding, as required by the Second Partial Consent Judgment in Williams v. NYCHA, 81 CIV 1801 (SDNY Feb. 2, 1995, R.J.W.) ("Williams Consent Decree"), petitioner prepared and sent respondent and NYCHA a form entitled "Certificate of Basis for Eviction Proceeding Against Tenant Participating in the Section 8 Housing Choice Voucher Program", dated January 25, 2016, advising that it intended to commence an eviction proceeding against respondent for nonpayment of her share of the rent under the Section 8 Program. Specifically, petitioner indicated that it sought rent at the rate of $312 per month for the four months of April 2015, November 2015, December 2015 and January 2016; $366 per month for each of the months of July and August 2012; and $302 per month for each of the months of July 2013 and August 2013. Petitioner indicated in the form that the total Contract Rent for the apartment is $1304.96 and that it was not seeking to recover from the tenant the Section 8 subsidy portion of the rent.

NYCHA replied to petitioner's certification by completing the bottom section of the form, which it dated February 9, 2016, thereby advising both the landlord and the tenant that it "OBJECTS TO the Certification for the reason(s) checked below." NYCHA checked off box "C": "The proposed non-payment proceeding seeks to recover from the tenant more than the share of rent for which the tenant is responsible." In particular, with regard to the month of April 2015, NYCHA noted that the tenant's share was $267 ("T/S $267.00 for 4/15"), as opposed to $312 as listed by petitioner in the top portion of the form.

Petitioner then prepared and served on respondent a rent demand dated March 2, 2016, with a copy to NYCHA, the main section of which reads as follows:

PLEASE TAKE NOTICE that you have defaulted in the observance and performance of your obligation, in that you have failed to pay to the Landlord all rent in the total sum of Three Thousand Two Hundred Seventy Six Dollars and Seventy Seven Cents ($3,276.77), due for the period of July 1, 2012 to March 31, 2016, as follows and represents Tenant's share of rent:

Total monthly rent due: 10/15 to 3/16: $1304.96—Section 8 $722.96, Tenant $312.00

Jul 2012 share	$366.00	Dec 2015 share	$312.00
Aug 2012 share	$366.00	Jan 2016 share	$312.00
Jul 2013 share	$302.00	Feb 2016 share	$312.00
Apr 2015 share	$267.00	Mar 2016 share	$312.00
Nov 2015 share	$312.00

Petitioner thereafter commenced the within proceeding for nonpayment of rent by filing and serving a Notice of Petition and Petition dated June 21, 2016 seeking possession and a money judgment for the rent due under the Rent Demand plus rent for April, May and June 2016 at the rate of $312.00 per month for a total of $4,212.77. A copy of the rent demand is annexed to the Petition as Exhibit "A". The Petition asserts that petitioner "has provided both NYCHA Section 8 and Respondent–Tenant notice of intent to commence an eviction proceeding pursuant to the Williams Consent Decree", Petition at ¶ 13, references the certification form described above and the fact that a copy is annexed as Exhibit "B", and further asserts that "NYCHA had objected [to] the Landlord's Certification of the Basis to Commence this proceeding based on the amount being sued for on 4/15, however the amount was changed on the Rent Demand to satisfy this objection." Petition at ¶ 15.

Respondent pro se answered the petition on July 8, 2016, raising defenses of partial payment and breach of the warranty of habitability and a counterclaim ("withheld payments due to repairs"), and the court initially calendared the proceeding for July 15, 2016. The case was adjourned to August 9, 2016 for petitioner to subpoena NYCHA, and respondent appeared by counsel on that date. The proceeding was then adjourned for motion practice.

MOTION FOR LEAVE TO AMEND ANSWER

It is well-settled that leave to amend a pleading is freely granted under CPLR § 3025 absent a showing of prejudice or surprise. Mezzacappa Bros., Inc. v. City of New York, 29 AD3d 494, 815 N.Y.S.2d 549 (1st Dep't 2006) ; Valdes v. Marbrose Realty, Inc., 289 A.D.2d 28, 29, 734 N.Y.S.2d 24 (1st Dep't 2001) ; Igbara Realty Corp. v. New York Property Ins. Underwriting Assoc., 104 A.D.2d 258, 482 N.Y.S.2d 741 (1st Dep't 1984) ; 1515 Macombs, LLC v. Jackson, 50 Misc.3d 795, 20 N.Y.S.3d 869 (Civ.Ct. Bronx Co.2015) ; 601 W Realty LLC v. Chapa, 19 Misc.3d 1133(A)(Civ. Ct. N.Y. Co.2008). Whether to grant a motion to amend a pleading is a matter "committed almost entirely to the court's discretion to be determined on a sui generis basis, with the widest possible latitude being extended to the court." Murray v. City of New York, 43 N.Y.2d 400, 404–405, 372 N.E.2d 560, 401 N.Y.S.2d 773 (1977). The proposed amended pleading should be permitted unless it is "patently insufficient on its face." Hospital for Joint Diseases Orthopaedic Institute v. James Katsikis Environmental Contractors, Inc. et al., 173 A.D.2d 210, 569 N.Y.S.2d 91 (1st Dep't 1991).

Here, petitioner does not claim that it was surprised or would be unfairly prejudiced; its only objection is that the proposed Amended Answer is not verified by an individual with personal knowledge. However, RPAPL § 743 allows a respondent in a summary eviction proceeding under Article 7 of the RPAPL to answer the petition orally or in an unverified written answer. Turk v. B. Jakobsons & Son, 188 Misc. 203, 66 N.Y.S.2d 430 (App. Term 1st Dep't 1946) ; Profile Enters. LP v. Sanzo, 2005 N.Y. Misc. LEXIS 3403, 234 N.Y.L.J. 8 (Civ.Ct. N.Y. Co.2005). See also, e.g., Bruce L. Stein v. Jeff's Express, 37 Misc.3d 94, 955 N.Y.S.2d 713 (App. Term 2nd Dep't 2012) ; Mendicino Green Apt. Corp. v. Casimir, 32 Misc.3d 1220(A), 934 N.Y.S.2d 35 (Dist. Ct. Nassau Co.2011) (citing Landlord & Tenant Practice in New York, Daniel Finkelstein & Lucas A. Ferrara, Section 14:239). Petitioner cites to no authority—and the Court has found none—requiring that an amended answer be held to a different standard. Accordingly, this Court finds that the proposed Amended Answer is not "patently insufficient on its face," grants respondent's motion for leave to serve and file an amended answer and deems the proposed Amended Answer annexed to the moving papers as Exhibit A duly served and filed.

MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

The second, third and fourth defenses set forth in respondent's Amended Answer arise out of the Williams Consent Decree; respondent seeks dismissal of the petition based on petitioner's failure to comply with various of its requirements.

One of the hallmarks of the Williams Consent Decree is its set of notice and certification procedures, which landlords must comply with prior to bringing eviction proceedings based on, inter alia, nonpayment of rent. The procedures are elaborate, including time frames for, and manner of delivery of, pre-litigation notification to NYCHA and the tenant using the "Certification of Basis for Eviction Proceeding" form attached to the Consent Decree. The Certification must be executed by someone with personal knowledge of the relevant facts, and must contain sufficiently specific factual allegations to allow the tenant to prepare a response or defense, including "an accurate breakdown of the source of the arrearage and the total amount claimed from the tenant for each month at issue". Williams Consent Decree at pp. 3–4, ¶ 7(b). NYCHA must object to the Certification where it finds any one of a list of five problems, including where "The proposed nonpayment proceeding seeks to recover from the tenant more than the share of rent for which the tenant is responsible." Id. at p. 4, ¶ 8(c). NYCHA is required to convey any such objection to both the landlord and the tenant in writing by completing the lower portion of the Certification form submitted by the landlord. Id. at p. 4, ¶ 9. If NYCHA objects to the landlord's Certification and the landlord commences an eviction proceeding against the tenant, "the landlord shall name and serve [NYCHA] as a necessary party and shall commence a single proceeding against the tenant and [NYCHA]. The failure to name and serve [NYCHA] as a party shall require dismissal of the proceeding without prejudice." Id. at...