RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF RESPONDENT’S MOTION TO DISMISSPAPERS NUMBEREDNotice of Motion, Affidavits & Affirmation Annexed 1-3Answering Affidavits 8Replying Affidavits 11Exhibits 4-7, 9-10DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:In this holdover proceeding, Petitioner seeks to recover possession of Apartment #1S, a Rent Stabilized apartment, located at 2376 Webster Avenue, Bronx, NY, on the ground that Respondent Lynn Smith (“Respondent” herein) breached a substantial obligation of her tenancy. Specifically, Petitioner seeks possession based on its claim that Respondent, who entered into possession of the subject apartment pursuant to a lease between the parties and a Housing Assistance Payment contract (“HAP” herein), violated the lease between the parties by failing to recertify her income with the Department of Housing Preservation and Development (“HPD” herein).Although Respondent initially appeared pro se, shortly thereafter Respondent retained counsel and filed an answer to the petition.Respondent now seeks an order dismissing the proceeding pursuant CPLR §3211 (a) (7) as well as §§2524.2 (b) and 2524.3 (a) of the Rent Stabilization Code (“RSC” herein) for failure to state a cause of action.In support of her motion Respondent argues the following: the allegations contained in the predicate notices do not fit within a cognizable ground for eviction, Respondent was not notified of ways she could cure the alleged breach, and Petitioner failed to allege the necessary facts that establish Respondent’s failure to cure during the cure period. According to Respondent, she is the sole occupant of the subject apartment, and she previously received a Section 8 subsidy administered by HPD. Although Petitioner seeks to terminate her tenancy as a result of the subsidy lapsing, Respondent argues that the RSC provides for a specific set of circumstances which may give rise to a cause of action, including where a landlord believes that a tenant is violating a substantial obligation of the lease. But, Petitioner nevertheless commenced this proceeding without citing precisely which section of the RSC it is relying on to remove Respondent from the subject apartment, and the HAP contract provision relied upon by Petitioner in the notice to cure has no application to Respondent. Further, Respondent contends that the allegations contained in the notice of termination were essentially copied from the notice to cure and pasted to the notice of termination without additional facts regarding Respondent’s failure to cure the alleged breach by the deadline imposed in the notice to cure.In opposition, Petitioner asserts that the New York City Housing Authority1 sent Respondent a notice dated April 27, 2017, informing Respondent that her subsidy was terminated effective May 31, 2017 as a result of her failure to return her recertification package. Petitioner then commenced this proceeding following service of a notice to cure followed by a notice of termination which stated the reason for Petitioner’s termination of her tenancy, and specifically cited to the provision in the HAP contract which requires that Respondent recertify her income. In addition, Petitioner contends that the HAP contract may be automatically terminated following 180 calendar days after the last housing assistance payment to the owner, and that the lease between the parties terminated based on the terms of the HAP contract which may also be terminated by HPD.In reply, Respondent asserts that Petitioner’s opposition is misleading and fails to address her claim regarding the defects in the pleadings, and Petitioner’s reliance on the language of the HAP contract rather than the lease is misplaced since they are two separate documents. Moreover, Respondent asserts that Petitioner failed to provide support for its position that the HAP contract gives it authority to terminate Respondent’s tenancy. Respondent further contends that although a lease may be terminated by a landlord as a result of a breach of the HAP contract, there has to be a provision in the lease that permits for eviction for said breach, which Petitioner failed to show exists.Pursuant to CPLR §3211 (a) (7), a party may move for judgment dismissing one or more causes of action asserted against him where the pleading fails to state a cause of action. On a motion to dismiss pursuant to CPLR §3211, “the pleading is to be afforded a liberal construction” (Leon v. Martinez, 84 NY2d 83, 88, 638 NE2d 511 [1994]). With a motion brought under CPLR §3211 (a) (7) for failure to state a cause of action, “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Leon, 84 NY2d 83 at 88) (internal quotation marks and citation omitted).As held by the court in Hatim Group, LLC v. Johnson, 36 Misc 3d 147 (A), 960 NYS2d 50 [App Term, 2nd Dept, 2d, 11th and 13th Jud Dists 2012]), where a “tenant’s Section 8 subsidy has been terminated and the landlord’s acceptance of Section 8 benefits was a condition of the lease…absent evidentiary proof that such a condition existed in the lease, landlord cannot maintain this holdover proceeding based on its termination of the lease.”In support of its petition, Petitioner does not cite to a provision in the lease between the parties, and cites to Paragraph 4 (b) (2) of the HAP contract which according to Petitioner provides that the PHA may terminate program assistance for the family for any grounds authorized in accordance with HUD requirements, and that if the PHA terminates program assistance for the family the HAP contract terminates automatically. However, a reading of this provision does not lead to the conclusion that by reason of the termination of the HAP contract, Petitioner also has grounds to remove Respondent from the apartment for failure to recertify her income absent a provision in the lease that specifically requires Respondent to recertify her income pursuant to the terms of the HAP contract, failure of which would constitute a breach of a substantial obligation of her tenancy.For these reasons, Respondent’s motion which seeks to dismiss this proceeding is GRANTED and the petition is dismissed.This constitutes the decision and order of the Court.Dated: May 22, 2019
