Recitation, as required by CPLR §2219 (a), of the papers considered in review of this motion of Respondent’s motion for partial summary judgment: PAPERS NUMBERED Notice of Motion-Exhibits Annexed 1 Affirmation in Opposition and Respondent’s Cross Motion-Exhibits Annexed 2 Petitioner’s affirmation in opposition 3 Respondent’s affirmation in reply 4 DECISION/ORDER Upon the foregoing cited papers, the decision and order on this motion is as follows: BACKGROUND AND PROCEDURAL HISTORY: Petitioner commenced this holdover proceeding to recover possession of the premises known as 3022 Grace Avenue, Bronx, New York. Petitioner seeks possession on the ground that there is no lease in effect and petitioner acquired the subject premises pursuant to a Referee’s Deed, dated December 11, 2017, upon foreclosure of the property. Petitioner served respondents with a ninety (90) day notice of termination, dated October 22, 2018, which stated they were the new owner of the premises, requested information in regard to any tenancy rights of respondents, and demanded possession of the premises on or before February 12, 2019. This holdover proceeding first appeared on the court’s calendar on March 25, 2019 at which time a referral was made to Adult Protective Services (“APS”) for respondent, Miguelina Perdomoes, and the case was adjourned to May 6, 2019. On May 6, 2019, the case was adjourned to June 17, 2019 for an APS status update. On June 17, 2019, Mobilization for Justice (“MFJ”) appeared on behalf of respondent, Miguelina Perdomoes, respondent’s answer was deemed filed and served and the case was adjourned to July 16, 2019 for motion practice and/or settlement. The June 17, 2019 stipulation also specified that the only occupants of the apartment were Miguelina Perdomoes, Ariadna Perdomoes, and a minor child. On July 16, 2019, the case was adjourned for traverse and/or trial to September 11, 2019. On August 29, 2019, petitioner filed the within motion for summary judgment. On September 4, 2019, respondent, Miguelina Perdomoes, by her attorney, filed opposition to petitioner’s motion for summary judgment and cross-moved to dismiss the proceeding and/or for leave to amend her answer. MFJ also filed a notice of appearance on behalf of respondent, Ariadna Perdomoes. DISCUSSION: Petitioner moves for summary judgment pursuant to CPLR §3212, on the grounds that there are no triable issues of fact and that petitioner is entitled to a judgment as a matter of law. Petitioner also moves, pursuant to CPLR §3211(b), for an order dismissing respondent’s affirmative defenses contained in the proposed amended answer, as the defenses raised are invalid and/or lack any merit. Petitioner argues respondent was properly served the 90-day Notice to Quit along with a certified copy of the Referee’s Deed, pursuant to RPAPL §735 and §713(5), that respondents are not tenants as defined by RPAPL §1305(l)(c) and do not have a valid lease in effect. Petitioner further argues that it was not required to serve the New York City Housing Authority (“NYCHA”) with a copy of the Notice of Petition and Petition in compliance with the Second Partial Consent Judgment of the Williams Consent Decree because petitioner is not a party to any contract authorized by the Section 8 program and, therefore, does not have a duty to meet any standards to maintain respondent’s Section 8 status. Petitioner further argues that the petition in this case is not defective because it complies with RPAPL §741(2) since it states respondent’s interest in the premises and refers only to respondent, Virgilio A. Ogando, when it states that “respondent(s) occupies the premises as a former owner of the premises.” Respondent, Miguelina Perdomoes, in opposition to petitioner’s motion for summary judgment, argues she is entitled to a traverse hearing because she was not served with the 90-Day Notice to Quit nor did petitioner simultaneously exhibit the Referee’s Deed of Foreclosure as alleged by petitioner. Respondent further argues that she is a tenant pursuant to RPAPL §1305 and should not have been served with a Notice to Quit, as her current lease expired on October 31, 2019. Therefore, petitioner should not have commenced this proceeding prior to the expiration of respondent’s lease. Respondent has also cross-moved pursuant to CPLR §3211 (a)(7) to dismiss the proceeding for failure to state a cause of action based upon petitioner’s failure to serve NYCHA with the petition in compliance with 24 CFR 982.310(e)(2)(ii) and/or the Williams Consent Decree. In addition, respondent moves to dismiss pursuant to CPLR §3013, CPLR §3211(a)(7) and RPAPL §741(2) because the petition falsely describes respondent Miguelina Perdomoes, as a former owner of the subject premises rather than as a tenant of the subject premises. In the alternative, respondent seeks leave, pursuant to CPLR §3025, to interpose an amended answer in this proceeding or to deem the annexed proposed amended answer filed and served. Respondent argues in opposition and in support of her cross-motion to dismiss, that 42 U.S.C. §1437f(o)(7)(F) which applies to foreclosure actions, states that petitioner has acquired the property subject to the “lease between the prior owner and the tenant and to the housing assistance payments contract between the prior owner and the public housing agency for the occupied unit.” Therefore, pursuant to 24 CFR 982.310(e)(2)(ii) and the Williams Consent Decree, petitioner should have notified NYCHA about this proceeding and failure to do so warrants dismissal. PETITIONER’S MOTION FOR SUMMARY JUDGMENT Pursuant to CPLR §3212(b) summary judgment shall be granted “if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” Summary judgment should only be granted when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, giving sufficient evidence in admissible form to eliminate any material issues of fact from the case. Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Greenberg v. Manlon Realty, Inc., 43 A.D.2d 968 (App. Div. 2nd Dept. 1974). In order to defeat the summary judgment motion, the opposing party must show facts sufficient to require a trial. Zuckerman v. City of NY, 49 N.Y.2d 557 (1980). Petitioner’s motion for summary judgment is denied as there are issues of fact which require a trial. Respondent alleges that there is a valid lease that expired on October 31, 2019 which allows her to remain in the subject premises until its expiration. Petitioner denies there is a lease that is in effect. The lease, attached as Exhibit “A” to respondent’s opposition and cross motion, is only signed by the landlord and not the tenant. There is an issue of fact as to the validity of the lease and whether it is still in effect. In addition, respondent argues she is entitled to a traverse hearing as she was not properly served with the 90-day Notice to Quit or with a certified copy of the Referee’s Deed. Accordingly, petitioner’s motion for summary judgment is denied and the remainder of petitioner’s motion is denied for the reasons below. RESPONDENT’S CROSS-MOTION TO DISMISS Respondent cross-moves to dismiss this proceeding based upon petitioner’s failure to serve NYCHA with the Notice of Petition and Petition in compliance with the Second Partial Consent judgment, issued in the Williams Consent Decree. Williams v. New York City Housing Authority, 81 Civ 1801 (SDNY Feb 2, 1995). On a motion to dismiss, pursuant to CPLR §3211 (a)(7) for failure to state a cause of action, the court is required to afford the pleadings a liberal construction, accord petitioner every possible inference, accept the allegations as true and determine only whether they fit within any “cognizable legal theory.” Leon v. Martinez, 84 NY2d 83, 87 (1994), citing Morone v. Morone, 50 NY2d 481 (1980). Where the proceeding involves a Section 8 voucher administered by NYCHA, strict compliance with the Williams Consent Decree is required. Failure to comply with the service procedures and notice requirements outlined in the Williams Consent Decree is a basis for dismissal of an action. Alawlaqi v. Kelly, 175 Misc2d 570, 571 (Civ. Ct. Kings Co. 1997) (tenant’s motion to dismiss a holdover proceeding was granted where, after NYCHA indicated it had no objection to the proceeding, landlord served the petition on NYCHA by regular mail, and did not comply with the service requirements set forth in the Williams Consent Decree). The Williams Consent Decree provides that in a case such as the one before the court, where the grounds for the termination did not arise out of the termination of the Housing Assistance Payment (“HAP”) contract, the landlord must mail or deliver to the Authority any statutory notice that are required to be served upon the tenant “as a prerequisite to the commencement of an eviction proceeding”, and the landlord must, “upon commencement of the proceeding, serve a copy of the Notice of Petition and Petition on the Authority or send a copy of said documents to the Authority by overnight mail.” Williams v. New York City Housing Authority, 81 Civ 1801 (SDNY Feb 2, 1995). In this proceeding, respondent, Miguelina Perdomoes, has attached a letter from NYCHA dated January 3, 2018, addressed to her at the subject premises, which states that the Authority has determined that the owner has failed to maintain the premises in accordance with federal Housing Quality Standards (HQS) for the Section 8 program. (See Exhibit “B” of Respondent’s Opposition and Cross Motion). Although petitioner alleges that respondent has failed to submit sufficient proof that she is a NYCHA recipient, petitioner has not submitted any proof to rebut respondent’s claims. Respondent has established that she is a recipient of NYCHA Section 8 and petitioner should have notified the Authority in accordance with the service requirements provided by the Williams Consent Decree. Even accepting petitioner’s argument that respondent, Miguelina Perdomoes’, lease expired on October 31, 2017 and petitioner has the right to maintain this proceeding, petitioner has failed to establish or allege its compliance with the service requirements set forth in the Williams Consent Decree. Petitioner simply argues that as a bank it is not bound by the procedures outlined in the Williams Consent Decree, as it is not a party to any contract authorized by the Section 8 program and does not have a duty to meet any standards to maintain respondent’s Section 8 status. The court finds petitioner’s argument is without merit. Upon purchase of the subject premises in foreclosure, the bank assumes the premises “subject to the lease between the prior owner and the tenant and to the housing assistance payments contract between the prior owner and the public housing agency for the occupied unit”. 42 U.S.C. §1437f(o)(7)(F). If there is no lease in effect the landlord is still required under the Williams Consent Decree to notify NYCHA of the commencement of this proceeding, which petitioner failed to do. In addition, petitioner failed to use due diligence to ascertain respondent’s Section 8 status prior to the commencement of this proceeding. See Deutsche Bank Natl. Trust Co. v. Turner, 32 Misc3d 1202 (A) (Civ. Ct. Bx. Co. 2011) (a proceeding by purchaser in foreclosure was dismissed where petitioner made no diligent effort to determine the name of the occupant, as petitioner could have knocked on the door, inquired from the prior owner, or checked the names on the mailbox). Petitioner acquired the property in December 2017 but did not commence this proceeding until almost a year later, petitioner had sufficient time prior to commencing this case to find out respondent’s name and that she was a NYCHA Section 8 recipient. Petitioner has not demonstrated any efforts made to determine respondent’s Section 8 status prior to the commencement of this proceeding. Accordingly, respondent’s cross motion to dismiss the proceeding, pursuant to CPLR §3211 (a)(7), for failure to state a cause of action is granted as petitioner has failed to comply with the requirements of the Williams Consent Decree and the proceeding is dismissed without prejudice. The court need not reach the remainder of respondent’s arguments. This constitutes the decision and order of this court. Dated: November 18, 2019 Bronx, New York
