Recitation, as required by the CPLR §2219(a), of the papers considered in the review of this motion for summary judgment. PAPERS NUMBERED Notice of Motion & Affidavits Annexed 1 Notice of Cross-Motion & Affidavits Annexed Answering Affidavits Replying Affidavits Exhibits Memorandum of law DECISION/ORDER Upon the foregoing cited papers, the decision and order of this motion is as follows: In this holdover proceeding, Kindel James (“Petitioner”) seeks to recover the premises located at 383 Lewis Avenue, Apt. 2, Brooklyn, New York (“Premises”) from Patricia Young, Brian Young, and Leah Davis (collectively “Respondents”) on the grounds that Respondents’ month-to-month tenancy was terminated. This proceeding first appeared on the court’s calendar on July 15, 2019. Both parties appeared pro se and the proceeding was adjourned to August 7, 2019 for Respondents to serve an Answer and for trial. On the return date, Respondent Young appeared by counsel, the Legal Aid Society, and Petitioner failed to appear. The Petition was dismissed without prejudice upon Respondent’s application. On August 15, 2019, Petitioner’s order to show cause was granted, Petitioner’s dismissal was vacated and the instant proceeding was restored to the calendar and adjourned to September 12, 2019 by order. Respondents now move for summary judgment on the ground that Petitioner failed to serve the New York City Housing Authority (hereinafter “NYCHA”) with the Notice of Termination and the Notice of Petition and Petition as required by the Second Partial Consent Judgment pursuant to Williams v. NYCHA, 81 CIV 1801 (SDNY Feb. 2, 1995, R.J.W.), as Respondent, Patricia Young, is a NYCHA Section 8 recipient. Petitioner did not submit any written opposition. The standard for summary judgment is clearly articulated in CPLR §3212(b) which provides that “the motion 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.” The function of summary judgment is issue finding, not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 (1957). Summary judgment should be granted when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, giving sufficient evidence to eliminate any material issues of fact from the case. Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1983). Moreover, “…when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the trial calendar and thus deny to other litigants the right to have their claims promptly adjudicated.” Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974). The court finds that summary judgment is appropriate here. It is undisputed that Petitioner did not file any affidavits of service for the service of Notice of Termination or the Notice of Petition and Petition on NYCHA. The Williams Consent Decree requires service of a copy of the Notice of Termination, Notice of Petition and Petition on NYCHA as a prerequisite in a holdover proceeding. As Respondent is a tenant who receives Section 8 benefits through NYCHA, dismissal is mandated because Petitioner did not serve NYCHA with the requisite predicate notice and pleadings. Accordingly, Respondent’s motion is granted. The petition is dismissed without prejudice. This constitutes the decision and order of this court. Dated: October 3, 2019 Brooklyn, New York
