Recitation, as required by CPLR §2219(a), of the papers considered in the review of Respondent’s motion for leave to amend the answer pursuant to CPLR §3025(b), to dismiss pursuant to CPLR §§3211 and/or 3212, or, in the alternative, for summary judgment pursuant to CPLR §3212: Papers Numbered Notice of Motion & Affirmation/Affidavit/Exhibits Annexed 1 Affirmation in Opposition & Exhibits Annexed 2 Affirmation in Reply 3 Affirmation in Sur-Reply & Exhibits Annexed 4 Reply (Affirmation) to Sur-Reply 5 Upon the foregoing cited papers, the decision and order on Respondent’s motion is as follows. PROCEDURAL HISTORY This holdover proceeding is predicated on a 30 Day Notice Terminating Tenancy (hereinafter “Notice of Termination”) dated March 25, 2019. The Notice of Termination alleges that Respondent’s lease expired on January 31, 2019, that she became a month-to-month tenant thereafter, that the subject premises are exempt from rent stabilization, and that the parties are subject to a HUD Section 8 lease administered by the New York City Housing Authority (NYCHA). On May 29, 2019, Catholic Migration Services (CMS) appeared as counsel for Respondent. Thereafter, Respondent, through counsel, interposed an answer and moved for discovery. The discovery motion was settled by stipulation dated November 14, 2019, whereby Petitioner agreed to provide documentation showing that Petitioner was a not-for-profit organization within the confines of the Rent Stabilization Code. Subsequently, Respondent made the instant motion to amend her answer, for dismissal, and for summary judgment. Opposition papers were served prior to the COVID-19 public health emergency; the reply and ensuing affirmations (sur-reply and reply to sur-reply) were filed through the Electronic Document Delivery System (EDDS). The court heard argument on the motion via Skype on June 29, 2020 and reserved decision. ANALYSIS Motion to Dismiss The court first addresses the portion of Respondent’s motion seeking dismissal as a result of Petitioner’s alleged failure to state facts upon which this holdover proceeding is based. Pursuant to RPAPL §741(4), every petition shall “state the facts upon which the special proceeding is based.” It is well established that “[w]here a tenancy is subject to a specific form of regulation, the petition must set forth the tenant’s regulatory status, because this status may determine the scope of the tenant’s rights.” Cintron v. Pandis, 34 Misc 3d 152[A], 2012 NY Slip Op 50309[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see also Henry v. Kingsberry, 66 Misc 3d 143[A], 2020 NY Slip Op 50175[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Migliaccio v. Childs, 65 Misc 3d 131[A], 2019 NY Slip Op 51575[U] [App. Term 2d Dept, 2d, 11th & 13th Jud Dists 2019]. Moreover, when the government is “sufficiently entwined with the subject premises so as to constitute significant and meaningful” governmental participation, constitutional due process guarantees are triggered and a cause for eviction beyond “mere expiration of the tenancy” must be stated in any notice of termination. Matter of Volunteers of Am.-Greater NY, Inc. v. Almonte, 65 AD2d 1155, 1157-1158 [2d Dept 2009]. Respondent argues that the Petition misstates both Petitioner’s interest in the premises and the regulatory details. On the first point, Petitioner now acknowledges that it is not the “owner,” as pled in the Petition. Indeed, the lease between the parties specifically states that Petitioner is “not the owner” and that it is the ground lessee under a lease agreement with Hollis Leasehold, LLC. Since the Notice of Termination (which would not be subject to amendment) does not include the misstatement about Petitioner being the owner, and since there is no discernible prejudice to Respondent resulting from the misstatement, the court considers it to be an amendable defect. See Paikoff v. Harris, 185 Misc 2d 372, 376 [App Term, 2d Dept, 2d & 11th Jud Dists 1999]; 17th Holding LLC v. Rivera, 195 Misc 2d 531, 532 [App Term, 2d Dept, 2d & 11th Jud Dists 2002]. Respondent also highlights the statement in the Petition that the premises is supportive housing “under the Memorandum of Understanding with the Department of Mental Health and Hygiene.” Respondent asserts that the Memorandum of Understanding is with the New York City Department of Homeless Services, not the Department of Mental Health and Hygiene. However, the parties’ lease specifically states that the premises is supportive housing for “homeless or ‘At-Risk’ individuals including formerly homeless Veterans under a program administered by the City of New York under a Memorandum of Understanding (MOU) by and between the City University of New York (CUNY) and HELP Social Service Corporation.” Moreover, both parties annex copies of a “subaward” and a “sub-agreement” between CUNY and HELP. The “subaward” calls for funding in an amount not to exceed $1,567,727.00, with HELP USA as the subrecipient and the Research Foundation of CUNY as the pass-through entity ultimately funded by the New York City Human Resources Administration (hereinafter “HRA”). The “sub-agreement” describes a collaborative effort between CUNY and HELP “for purposes of providing workforce development, education, case management, and affordable housing to veterans exiting the New York City Department of Homeless Services (‘DHS’) system between November 13, 2015 and November 12, 2025 in order to eliminate veteran homelessness to ensure that veterans placed in affordable housing are able to sustain independent living with quality employment and care.” The “sub-agreement” (in Appendix A) also lists 15 separate obligations (most of which involve provision of various services1 to supportive housing “participants” and reporting of progress) to be undertaken by HELP in collaboration with CUNY. Therefore, the Petition’s omission of any reference to CUNY’s involvement in the subject premises is fundamental, as significant funding, reporting, and service obligations affecting Respondent’s tenancy flow directly from Petitioner’s agreements with CUNY. See Migliaccio, 2019 NY Slip Op 51575[U], *2. Furthermore, Respondent’s motion demonstrates that governmental entities (primarily CUNY, but also HRA and DHS2) are “sufficiently entwined” with the subject premises and its operation so as to “constitute significant and meaningful government participation.” Matter of Volunteers of Am.-Greater NY, Inc., 65 AD3d at 1157-1158. In addition to the aforementioned agreements between CUNY and HELP (and the substantial fiscal, reporting, and operational bonds outlined therein), the parties’ lease specifically states that the “within housing accommodation is a collaboration of the Department of Homeless Service [sic], CUNY, and HELP to provide Supportive Housing for a population of homeless or ‘At — Risk’ individuals including participating Veterans with affordable housing within the Queens County community.” The lease (in Paragraph 29) also requires income verification by Respondent. Although the lease does not specify why income verification is required, the “sub-agreement” between CUNY and HELP provides the answer. Under provision “C” of Appendix A of the “sub-agreement,” Petitioner is to collect a “client contribution of the rent, which in accordance with the specific rental subsidy should be 30 percent of their personal income.” Provision “D” of the same appendix provides that in the event that a tenant does not pay his or her rent share, HELP may seek reimbursement from all available sources and if reimbursement is not obtained, HELP “may choose to work with CUNY, with input from HRA and relevant governmental agencies to determine the next step” and may work with a city agency, “such as HRA,” to pay rent arrears. Hence, HELP’s entwinement with governmental entities is extensive and significantly impacts Respondent’s tenancy. Since constitutional due process guarantees are triggered as a result of HELP’s entwinement with CUNY, HRA, and DHS, Petitioner’s failure to state a cause of eviction beyond termination of tenancy renders the Petition defective. See Matter of Volunteers of Am.-Greater NY, Inc., 65 AD3d at 1158; see also 512 E. 11th St. HDFC v. Grimmet, 181 AD2d 488, 489 [1st Dept 1992]; 952 St. Marks Ave. HDFC v. White, 66 Misc 3d 35 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]. The portion of Respondent’s motion seeking dismissal of the Petition on the basis that it fails to comply with RPAPL §741(4) is therefore granted. Accordingly, the court does not reach Respondent’s motion to amend her answer and her motion for summary judgment seeking a determination of rent stabilization coverage based on the alleged applicability of Part J of the Housing Stability and Tenant Protection Act of 2019 (HSTPA). See 1646 Union, LLC v. Simpson, 62 Misc 3d 142[A], 2019 NY Slip Op 50089[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [Holding that a determination of compliance with the "jurisdictional" requirements set out in Article 7 of the RPAPL is a threshold undertaking in a summary landlord-tenant proceeding]. CONCLUSION In accordance with the foregoing determinations, Respondent’s motion to dismiss is granted and the instant holdover proceeding is dismissed. Respondent’s motions to amend her answer and for summary judgment are denied as moot and without prejudice. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Dated: July 10, 2020
