Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for dismissal and for further relief:Papers NumberedNotice of motion and affidavits annexed 1Order to Show Cause and affidavits annexedAnswering affidavits 2Replying affirmation 3Supplemental affirmationExhibitsStipulationsOtherDECISION/ORDER AFTER ARGUMENT Petitioner commenced this summary holdover proceeding after having allegedly terminated respondents’ occupancy in 125 Beach 19th Street, Apt. #3-M, Far Rockaway, NY 11691 (the “subject Premises”) for allegedly failing to provide access for repairs on two dates, December 7, 2016 and July 13, 2017. (Notice of Motion, Exhibit A.) The petition does not state which section of the RPAPL Petitioner has brought this proceeding. Respondent appeared by counsel and moves for dismissal (CPLR 3211 (a)(1), (2) and/or (7)) or alternatively, leave to conduct discovery (CPLR §408). “(O)n a motion to dismiss the complaint pursuant to CPLR 3211 (a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” (Siracusa v. Sager, 105 AD3d 937, 938 [2nd Dept 2013] quoting Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703-704.) LL alleges material noncompliance, but fails to state which section(s) respondent allegedly breached.In reference to respondent’s argument regarding dismissal based on documentary evidence, “[a] motion to dismiss a complaint pursuant to CPLR §3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326).” (Cavaliere v. 1515 Broadway Fee Owner, LLC, 150 AD3d 1190 [2nd Dept. 2017]). Respondent’s tenancy is subject to regulation by the New York City Housing Authority (“NYCHA”), as evidenced by the document confirming execution of the Housing Assistance Payment Contract between petitioner and NYCHA (Notice of Motion, Exhibit C.) A petition must state a tenant’s regulatory status, including receipt of Section 8 benefits. (Volunteers of America-Greater New York, Inc. v. Almonte, 65 AD3d 1155 (2nd Dept 2009). Also, according to the Williams Consent Decree, a landlord is required to serve the public housing authority in question. (Williams v. New York City Housing Authority, 81 Civ. 1801 (SDNY 1995).) The petition does not state that respondent’s tenancy includes receipt of Section 8 benefits; it only states that the property is operated as a low-income property for the elderly pursuant to Section 236 of the National Housing Act. It also states that the property is a Mitchell-Lama property regulated by the New York State Housing and Community Renewal (NYSHCR) and the United States Department of Housing and Urban Development (HUD). (Notice of Motion, Exhibit A). Also, the affidavits of service do not show that petitioner served NYCHA. Rather, the affidavits show petitioner served DHCR. (Notice of Motion, Exhibit B.) Petitioner’s opposition does not address the lack of service upon NYCHA. Failure to serve NYCHA with a copy of the pleadings is a defect justifying dismissal. (Taylor v. Shelton, 2017 NYLJ LEXIS 1023 [Civ Ct, Kings County] citing 24 C.F.R. §982.310 (e)(2)(ii); see also Williams v. New York City Housing Authority, 81 Civ. 1801 (SDNY 1995).Even if petitioner’s service of DHCR satisfied the service requirement, respondent raises other valid bases for dismissal. For instance, in reference to the alleged insufficiency of the predicate notice, the law requires that it be reasonable under the attendant circumstances. Hughes v. Lenox Hill Hospital, 226 AD2d 4, 18 (1st Dept. 1996). The notice must offer specific facts so as to provide the tenants with sufficient notice of the case against them. Kaycee West 113th Street Corp. v. Diakoff, 160 AD2d 573, 574 (1st Dept. 1990). Also, the applicable HUD Handbook states that “an owner must establish that the basis for the termination is consistent with…b. allowable lease provisions set forth in the lease…” Yet, the predicate does not state which provision has been breached. Also, it fails to state what repairs need to be completed. Therefore, it is insufficient as a predicate notice (Hughes v. Lenox Hill Hospital, 226 AD2d 4, 18 (1st Dept. 1996)).Moreover, the petition fails to state a cause of action. Petitioner alleges material noncompliance by respondent by failing to provide access for repairs on December 7, 2016 and July 13, 2017. In a HUD tenancy, material noncompliance includes:failure to timely submit household income and composition;extended absence from or abandonment of the unit;fraud;nonpayment of rent;repeated minor violations that: disrupt the livability of the property; adversely affect the health or safety of any person, or the right of any tenant to the peaceful enjoyment of the property; or have an adverse financial effect on the property; or failure to disclose and provide verification of Social Security Numbers. (Notice of Motion, Appendix 1, §§8-13 to 8-14).In order to evict a tenant from a HUD-subsidized building for a lease violation, a landlord “must demonstrate that the violation was a significant one-i.e., not a technical or a de minimis violation.” Lambert Houses Redevelopment Co. v. Huff, 35 Misc3d 1215(a) (Civ Ct 2012) quoting Greene Ave. Assoc. v. Cardwell, 191 Misc 2d 775, 786 [Civ Ct. Kings County 2002], quoting Matter of Park W. Vil v. Lewis, 62 NY2d 431, 437 [1984]). The predicate notice only alleges respondent failed to provide access on two dates over seven months apart. This belies any claim that repairs are urgently needed or even affecting the unit or other tenants. The predicate also fails to state what repairs are necessary. The violation alleged is de minimis and does not rise to the level of material noncompliance as defined in the HUD handbook. See Lambert Houses Redevelopment Co. v. Huff 35 Misc3d 1215(A).Based on the foregoing, the motion to dismiss is granted and the petition is dismissed without prejudice. The court does not reach any other issue.This constitutes the decision and order of the court.4-30-18Date:
