The following named papers numbered 1 to 2 submitted on this Motion for Summary Judgment on January 28, 2020 papers numbered Notice of Motion and Supporting Documents Order to Show Cause and Supporting Documents Opposition to Motion Reply Papers to Motion Respondent’s motion for summary judgement is granted on two grounds. First, when the Petitioner accepted rent, and recertified the Respondent’s lease, it vitiated the right to terminate the lease constituting a waiver. Second, the Notice of Termination is defective because it fails to cite the specific lease provisions allegedly violated by the criminal activity.. Background Petitioner is an owner of a property located at 1485 Front Street, Apt 025, East Meadow, New York. The premises is subject to Section 8 project-based property; financed and regulated by the United States Department of Housing and Urban Development (HUD). The subsidy that is received by the Respondent is governed by HUD under 42 U.S.C. §1437. The Petitioner alleges that Respondent has been a nuisance on the property, harassing the neighbors, stealing packages, making excessive noise, and participating in altercations on the premises. The Petitioner alleges that the wrongful conduct lasted from 2014 through 2018. On November 21, 2018, the Respondent was arrested at the premises and charged with felony assault with intent to cause physical injury with a weapon, use or threat of use of a weapon during the commitment of a felony, and criminal possession of a weapon. Respondent was not convicted. Respondent contends that an arrest alone is not basis for termination of a tenancy. On April 4, 2019 Petitioner served Respondent with a Thirty-day Notice of Termination. The Notice included seventeen allegations of Respondent’s continued misconduct of being a nuisance at the property. The Respondent alleges that the Notice did not give a detailed account of the allegations. Whereas, the Petitioner claims the Notice was extremely detailed and thorough regarding times and events of the alleged violations. Respondent contends that Petitioner waived termination of the lease by continually accepting rent through December 1, 2018 from Respondent and HUD with knowledge of Respondent’s alleged breach of lease and by recertifying the lease in 2018. The Notice did not cite what lease provision was violated concerning the alleged criminal activity. The Notice to Terminate cites to paragraph 13(e) of the Lease Agreement: Make or permit noises or acts that will disturb the rights or comfort of neighbors. The tenant agrees to keep the volume of any radio, phonograph, television or musical instrument at a level, which will not disturb the neighbors. The Notice does not cite to the criminal activity provision of the lease which was allegedly breached by Respondent. Paragraph 23 of the lease entitled “Termination of Tenancy states in part: 23. Termination of Tenancy: a. To terminate this agreement, the tenant must give the landlord 30-days written notice before moving from the unit. b. Any termination of this Agreement by the Landlord must be carried out in accordance with HUD regulations, State and local law, and the terms of this Agreement. c. The landlord may terminate this agreement for the following reasons: (6) criminal activity by a tenant, any member of the tenant’s household, a guest or another person under the tenant’s control; (a) that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents (including property management staff residing on the premises); (b) or that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises; Discussion In the case at bar, Respondent is classified as a section 8 tenant subject to HUD regulations. HUD regulations do not mandate that Petitioner recertify the lease if there is a violation of the lease. Here, the Landlord accepted rent and recertified the lease. This constituted a waiver of the grounds for eviction set forth in the termination action. In Terrace 100. L.P. v. Blaylock 53 Misc.3d 1156 (Dist. Ct. Nassau Co. 2016), the property was subject to HUD regulations. The Petitioner-landlord commenced a summary holdover proceeding based on a thirty-day notice to terminate. Petitioner recertified the respondent’s lease. The recertification commenced a new tenancy preventing the petitioner from seeking possession of the premises. The court ruled that sending the recertification notice was a waiver of the termination notice. Thus, respondent’s motion to dismiss was granted. In Grandview Park Associates, LLC v. Lundy 105 N.Y. S.3d 815, 821 (City Ct. Mt. Vernon 2019), the tenant was a rent stabilized tenant. The respondent breached a substantial obligation of her tenancy. The petitioner served respondent with a Notice of Termination advising respondent that her tenancy was being terminated due to failure to pay the rent in full in a timely fashion as provided in the lease. The respondent executed a renewal lease with the petitioner which was required by the ETPA regulations. Thus, there was no waiver in Grandview because of the requirements of renewal in rent stabilized buildings which is different from HUD regulated buildings. The court Grandview explained the dichotomy at 822: The facts in Nyack Plaza and Terrace 100 LP are distinguishable in that those tenancies were section 8/HUD tenancies subject to section 8/HUD regulations which do not specifically provide that a landlord is obligated to offer a renewal lease when there is a violation of the substantial obligation of the tenancy. Here, the facts can be distinguished from Grandview Park Associates, LLC v. Lundy supra, since Respondent-tenant has a section 8/HUD tenancy subject to those regulations. The regulations do not mandate that a landlord is obligated to offer a renewal lease when there is a substantial breach of the lease. In the present case, the Petitioner knew of the numerous violations and alleged criminal activity and still continued to collect rent and recertify. HUD regulations do not provide language that obligates a landlord to collect rent and recertify when a violation occurs. Consequently, the Petitioner renewed the Respondent’s lease. Correspondingly, in the present case, Petitioner’s recertification of Respondent’s lease and acceptance of rent, despite their knowledge of the breach of the lease, constitutes a waiver. Petitioner recertified Respondent on October 1, 2018, even though they knew for years of the Respondent’s alleged disorderly acts. The Petitioner was not obligated by HUD regulations to recertify the lease; therefore, they did so under their own volition. Therefore, the HUD recertification notice is a waiver. The recertification and acceptance of rent did not constitute a waiver concerning the alleged criminal activity. The criminal activity, if any, occurred after the recertification and acceptance of rent. The requirements for a termination notice are set forth in 24 C.F.R. §247.4: The landlord’s determination to terminate the tenancy shall be in writing and shall: (1) State that the tenancy is terminated on a date specified therein; (2) state the reasons for the landlord’s actions with enough specificity so as to enable the tenant to prepare a defense; (3) advise the tenant that if he or she remains in the leased unit on the date specified for termination, the landlord may seek to enforce the termination only by bringing a judicial action, at which time the tenant may present a defense; and (4) be served on the tenant in the manner prescribed by paragraph (b) of this section. Here, the Petitioner did not state reasons for the landlord’s actions with enough specificity in order for the tenant to prepare a defense concerning criminal activity. The Petitioner neglected to advise Respondent, in the Notice of Default, what lease provision was violated concerning the alleged criminal activity. This deprived Respondent right to formulate a defense because Respondent did not know what provision was exactly violated, which in turn was a deprivation of Respondent’s due process rights. In Chinatown Apts. Chu Cho Lam, (51 N.Y.2d 786 (1980)), tenant breached a lease provision. The petitioner-landlord served the tenant with a “Notice of Intention to Terminate Occupancy.” The notice sent to the tenant alleged that a partition erected in premises was in violation of a certain clauses upon the lease. However, the tenant did not erect a partition, but did in fact construct a freestanding cube-like structure which stood in the center of one of his rooms. The notice did not indicate that the partition was a cube-like structure. The court dismissed the petition because: The deficiency in the notice arises from its failure to cite any specific prohibition in the lease which had been violated by the construction of the cube. Id. at 788. Additionally, in Fairview Co. v. Idowu, 148 Misc.2d. 17 (Civil Ct. Richmond Co. [1990]), petitioner-landlord sought to regain possession of a federally subsidized apartment from respondent-tenant pursuant to a termination notice. The notice alleged acts of noncompliance with the lease. Respondent-tenant claimed multiple defects with the notice, specifically, that the notice did not cite the specific lease provision claimed to have been violated and did not set forth the landlord’s complaints with sufficient detail to enable respondent to prepare a defense. The court agreed with Respondent and stated that that failure to cite specific lease provisions was a “fatal defect,” which required the petition to be dismissed: As for the necessity to cite specific lease provisions claimed to have been violated, neither the CFR nor HUD Handbook 4350.3 makes any such demand. The necessity to do so arises from Chinatown (supra) and its progeny. It is a procedural right in addition to those provided for in the Federal rules and is in accord with 24 CFR 247.6 (c). Id. at 22. In the present case, the Notice to Terminate did not satisfy the due process standard set out in Chu Cho and Fairview. The Notice to Terminate did not specify that Respondent violated Section 23(c)(6) of the lease concerning the alleged criminal activity. The Notice refers to paragraphs 3 and 18 of the House Rules and Regulations which refers to the comfort and rights of others being compromised, and what a reasonably person would deem annoying and disturbing. It fails to cite anything about breach for criminal activity. Thus, the Notice is deemed fatally defective because it does not cite the lease provisions Respondent allegedly violated, which violates Respondent’s due process rights. Conclusion Respondent’s motion for summary judgement is granted on two grounds. The Petitioner waived their right to terminate the tenancy when they recertified the tenant and accepted rent. The Notice to Terminate is defective because the Petitioner did not cite the lease provisions concerning criminal activity allegedly violated by the Respondent, which deprived Respondent of due process. So Ordered: Dated: March 16, 2020
