Recitation, as required by CPLR 2219 (a), of the papers considered in review of this motion:Papers NumberedNotice of Motion, annexed Affidavits, and Exhibits (A-H) 1Answering Affidavits, Memorandum of Law, and annexed Exhibits (A-M) 2Replying Affidavits and annexed Exhibits (I-J) 3DECISION/ORDER After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:PROCEDURAL HISTORY AND FACTSPetitioner, a not-for-profit housing cooperative organized pursuant to Article XI of the Private Housing Finance Law, moves this Court for summary judgment on its holdover Petition which seeks possession of the subject premises from Respondent Jerome Gould (“Respondent”) following expiration of the parties’ lease agreement.In January 2019, Respondent, by counsel, interposed an Answer in this proceeding which denied Petitioner’s allegation regarding the existence of “good cause” for his eviction, and interposed several other defenses and affirmative defenses, including inter alia that (1) Petitioner had waived his right to proceed herein by offering him a lease in January 2018 and (2) that he was not chronically delinquent in rent because he withheld his rent due to “bona fide warranty of habitability defenses.”Respondent thereafter moved for summary judgment on its waiver defense arguing that when Petitioner offered Respondent a lease during the most recent nonpayment proceeding, it was fully aware of the chronic rent delinquency it now alleges and therefore waived its right to proceed herein. By Order of February 1, 2019, Hon. Shorab Ibrahim denied Respondent’s motion finding that Petitioner’s lease offer was not “dispositive evidence that it chose to intentionally relinquish its right to commence this proceeding,” finding instead that “whether Petitioner’s cause of action actually exists is an issue for the trier of fact.” (CPLR 3212 [b].)Petitioner now asks that the Court for summary judgment dismissing Respondent’s defense that the Court lacks personal jurisdiction over him, and for summary judgment in its favor claiming it has established good cause sufficient to entitle it to entry of judgment in its favor.DISCUSSIONA court may employ the drastic remedy of summary judgment only where there is no doubt as to the absence of triable issues. (Andre v. Pomeroy, 35 NY2d 361, 364 [1974].) On such a motion, the Court’s function is to find, rather than to decide, issues of fact. (Southbridge Towers, Inc. v. Renda, 21 Misc 3d 1138[A], 2008 NY Slip Op 52418[U] [Civ Ct, NY County 2008], citing Epstein v. Scally, 99 AD2d 713 [1st Dept 1984].) The facts must be considered “in the light most favorable to the non-moving party.” (Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011].) Only upon a prima facie showing of entitlement to summary judgment, does the burden shift to the non-moving party to establish material issues of facts requiring a trial. (Vega v. Restani Const. Corp., 18 NY3d 499, 503 [2012] [internal citations and quotation marks omitted].) If an issue is “fairly debatable a motion for summary judgment must be denied.” (Stone v. Goodson, 8 NY2d 8, 12 [1960].)Because Petitioner is an Article XI Housing Development Fund Company (“HDFC”), the mere expiration of the Respondent’s lease is not, standing alone, grounds for an eviction. (See 512 E 11th St. HDFC v. Grimmet, 181 AD2d 488[1st Dept 1992]; see also Hudsonview Terrace, Inc. v. Maury, 100 Misc 2d 331, 332 [App Term, 1st Dept 1989] ["Eviction…requires a cause other than mere expiration of the lease"], quoting 157 W. 123rd St. Tenants Assoc. v. Hickson, 142 Misc 2d 984, 985 [App Term, 1st Dept 1989].) Instead, because such a cooperative corporation is significantly “entwined” with government involvement (see generally Private Housing Finance Law §576 [1]), constitutional due process protections are triggered, and Petitioner must therefore establish sufficient cause for an eviction following notice thereof to Respondent. (Grimmet, 181 AD2d at 489.) In its pleadings, Petitioner asserts that “good cause” exists “by reason of [Respondent's] chronic failure to pay rent on time as required by [the] lease agreement.” (Petition at 2.) The Petition alleges that Respondent has “constantly failed to pay [his] rent on time by the date due and/or in the month it is due since January 2010″ and that Petitioner has commenced three summary nonpayment proceedings against Respondent during this same time. (Id.)There is no set definition of “good cause” for an eviction in a governmentally entwined cooperative building. Although a chronic rent delinquency can constitute good cause, whether the requisite cause exists is itself a fact-specific inquiry dependent on the unique circumstances of each proceeding. (See e.g. 207-213 W. 144th St. HDFC v. Jenkins, 44 Misc 3d 1224[A], 2014 NY Slip Op 51300[U] [Civ Ct, NY County 2014] [finding after trial that good cause existed where "for most of Respondent's short term tenancy she was in arrears" and offer of a lease was contingent on timely payment of rent]; see also 601 West 136 Street HDFC v. Olivares, 2014 NY Slip Op 31474[U] [Civ Ct, NY County 2014] [finding after trial that failure to sign a good faith renewal offer constitutes good cause]; 191 E. 3rd St. Hous. Dev. Fund Corp. v. Poon, 2003 WL 21638253 [App Term, 1st Dept, July 7, 2003, No. 570672/02] [finding good cause after trial where respondent was not a bona fide shareholder and his occupancy violated the by-laws of the corporation].) As well, both the nature and duration of a respondent’s tenancy are considerations. (92 St. Nicholas Ave. HDFC v. Rasheed, 46 Misc 3d 1211 [A], 2015 NY Slip Op 50039[U] [Civ Ct, NY County 2015] [considering "the long term nature of [the] tenancy” in declining to find good cause for an eviction]; 207-213 W. 144th St. HDFC v. Jenkins, 2014 NY Slip Op 51300[U] [considering the respondent resided in the premises for less than a year and never had a written lease agreement in finding good cause for an eviction].)Although the “good cause” standard may be lower than the finding of breach of a “substantial obligation of [the] tenancy” required for the eviction of a rent-stabilized tenant for chronic rent delinquency (Id. at *3; Rent Stabilization Code [9 NYCRR] §2524.3 [a]), the applicable considerations in those far more common cases are guiding here. The fundamental characteristic of a claim of chronic nonpayment of rent is a cumulative pattern of unexcused rent delinquency. (See 326-330 E. 35th St. Assoc. v. Sofizade, 191 Misc 2d 329 (App Term, 1st Dept 2002.) The number and consistency of the underlying nonpayment proceedings are relevant to a finding of breach of a substantial obligation of the tenancy, and therefore relevant to a finding of “good cause.” (See Tenth St. Holdings LLC v. McKowen, 50 Misc 3d 141[A], 2016 NY Slip Op 50194[U] [App Term, 1st Dept 2016].) Petitioner concedes this point when it explains that “the ‘good cause’ for non-renewal of Respondent’s lease did not accrue after only one non-payment proceeding filed in 2011.” (Affirmation of Petitioner’s counsel at 41.) However, the number of nonpayment actions commenced is “only in the context of the entire circumstances surrounding the alleged withholding of rent.” (Green v. Stone, 160 AD2d 367 [1st Dept 1990].)Here, Petitioner argues that the three underlying nonpayment cases over the course of Respondent’s long-term, 15-year tenancy establish the necessary level of cause to refuse to renew Respondent’s lease upon its expiration. However, if doubt is cast on those proceedings, then whether good cause for this eviction proceeding exists is similarly in doubt. Respondent avers that the Petitioner commenced each of those proceedings because he withheld his rent to compel Petitioner to make necessary repairs in the premises. (Aff of Respondent at 18, 21, 24.) The Respondent’s answers in all three cases assert defenses regarding the existence of conditions within the subject premises in need of repair. (Respondent’s exhibits F — H.) Stipulations settling those proceedings all imposed obligations on the Petitioner to inspect and repair those conditions. (Id.) Accordingly, a materially relevant factual dispute exists regarding the circumstances surrounding the three underlying nonpayment proceedings. Summary judgment is not appropriate where such a dispute or “fairly debatable” issue exists. (Chama Holding Corp. v. Taylor, 37 Misc 3d 70 [App Term, 1st Dept 2012]; Stone v. Goodson, 8 NY2d 8, 12 [1960].)In support of its argument, Petitioner cites to Adam’s Tower Ltd. Partnership v. Richter (186 Misc 2d 620, 621 [App Term, 1st Dept 2000] [emphasis added]), in which the court upheld the entry of summary judgment where there was “no suggestion that rent was withheld because of uninhabitable conditions within the apartment premises.” Here, Respondent avers to more than a “suggestion.” (Aff of Respondent at 18, 21, 24; Respondent’s exhibits F-H.) Petitioner also cites to Zevrone Realty Corp. v. Gumaneh (51 Misc 3d 142[A], 2016 NY Slip Op 50653[U] [App Term, 1st Dept 2016]), for the proposition that there must be “conclusive proof” that Respondent withheld his rent to compel Petitioner to make repairs. However, Petitioner’s reliance on Zevrone is misplaced. In Zevrone, the tenant moved to dismiss a chronic rent delinquency holdover proceeding pursuant to CPLR 3211(a) (7) and (a) (1). The court denied the tenant’s motion because, reading the pleadings in the light most favorable to Petitioner, it found that six nonpayment proceedings over the course of four and a half years properly stated a cause of action. The court also denied the tenant’s motion for dismissal pursuant to 3211 (a) (1) on the basis that the documentary evidence did not “conclusively establish as a matter of law…that tenant was justified in withholding rent during some or all of the relevant time periods.” (Id.) Here, Petitioner is moving for summary judgment, and the facts are considered “in the light most favorable to the non-moving party.” (Ortiz v. Varsity Holdings, LLC, 18 NY3d at 339.) On a motion for summary judgment, Respondent need only properly raise a material issue of fact suitable for trial; Respondent need not conclusively establish his defense or utterly refute Petitioner’s claims. (Leon v. Martinez, 84 NY2d at 88.)CONCLUSIONAccordingly, because issues of fact remain regarding the existence of good cause for this eviction proceeding, Petitioner’s motion for summary judgment is denied.However, the Court agrees with Petitioner that Respondent has not sufficiently rebutted the affidavit of service of the Notice of Petition and Petition. Respondent’s conclusory claim that he never received the court papers as required by law and as described in the affidavit of service is insufficient to merit a traverse hearing without the recitation of other probative facts. (Am. Sav. & Loan Ass’n v. Twin Eagles Bruce, Inc., 208 AD2d 446 [1st Dept 1994].) Moreover, Respondent does not oppose Petitioner’s motion to dismiss this defense in his opposition papers. Thus, Respondent’s First Jurisdictional Defense is dismissed.In reaching its determination, the Court does not pass on the merits of Respondent’s other defenses. This proceeding shall appear on the Court’s calendar on July 3, 2019 at 9:30 am to be transferred to Part X for trial.This constitutes the Decision and Order of this court.Dated: June 3, 2019Bronx, New York
