Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of motion and affidavits annexed 1 Order to Show Cause and affidavits annexed Answering affidavits 2 Replying affidavits 3 Exhibits Stipulations Other DECISION/ORDER Before the Court is respondent’s motion to dismiss this licensee summary holdover proceeding under CPLR 3211(a)(7) alleging the pleadings fail to state a cause of action. Petitioner opposes said motion. Petitioner is an HDFC and temporary owner of the building known as 1142 Wheeler Ave., Bronx, NY under the Third Party Transfer (TPT) program. The notice said that “the purpose of the TPT program is to rehabilitate your building as affordable housing, while protecting all current, legitimate tenants from displacement.” It is understood that petitioner is charged with bringing the building into habitable condition and will, eventually, transfer the ownership to an entity approved by the NYC Department of Housing Preservation & Development (DHPD) (see the Regulatory Agreement attached as exh. J to moving papers). Respondent resides in apartment 2F in said building and claims to have resided therein since 2002 (18 years). When respondent moved into the building the owner was Kathleen Hughes. Ms. Hughes passed away in 2004 and the property ownership was in dispute from then through 2018, when it was transferred after a tax foreclosure to petitioner. Due to Ms. Hughes untimely death there was no entity to sign a renewal lease with respondent, nor to sign a HAP contract with NYCHA §8, which agency paid the bulk of respondent’s rent (see exh. 1 to respondent’s affidavit in support). It was during this period when the property ownership was in limbo that respondent lost her §8 subsidy because there was no-one to sign the HAP contract nor to sign a lease with respondent. Petitioner served respondent with a 30 day termination notice alleging no knowledge of how or when respondent came into possession of the subject apartment and that she is a licensee with no tenancy rights. The subject premises are a four (4) family dwelling and thus not under the Rent Stabilization Law, which petitioner points to for its claim that respondent has no tenancy rights. But the situation is not that simple as petitioner, through various agreements with government agencies, needed something more than just ignorance to institute the within proceeding. The Third Party Transfer Agreement states, in part, that ” WHEREAS, as a condition of such transfer of title, HPD requires that Owner enter into this Third Party Transfer Agreement in order to ensure that the Premises be maintained as low income rental housing.” (see exh. I to moving papers). Respondent would appear to be exactly the type of citizen contemplated to benefit from the program. The Regulatory Agreement (exh. J to moving papers) states, in part, that ” Borrower [herein the petitioner] shall offer new leases of vacant dwelling units and renewal leases of occupied dwelling units…”. Said Agreement then talks of Rent Stabilization, yet this property was not under Rent Stabilization as noted above, thus the Court concludes that, other than the lack of Rent Stabilization status, it was contemplated by the parties thereto that the balance of the Agreement is enforceable as written. The respondent’s claim is that the agreements petitioner was required to sign brings this property into a posture that the petitioner and the City are so intertwined by these agreements that petitioner is a defacto agent of the City and must plead and establish “good cause” for an eviction proceeding. In 705-7 E. 179th St. HDFC v. Aguirre, L&T No. 5731/07, 2007 N.Y. Misc. LEXIS 5150, 238 N.Y.L.J. 13 (Civ Ct, NY Co, 2007), the Court, citing 512 East 11th Street HDFC v. Grimmet, 181 AD2d 488, 581 NYS2d 24 (AD 1st Dept., 1992), stated: “Respondent argues that in order to bring a holdover proceeding against a tenant of a Housing Development Fund Corporation (“HDFC”) building, good cause is required. Where a governmental entity participates in the operation and control of a building in a significant and meaningful way, constitutional due process protections are triggered so as to require notice of the basis for the eviction…. As a cause of action herein, petitioner alleges only that respondent’s lease expired by its terms…and that the tenancy is not subject to rent regulation. Where, as here, government involvement in the formation, ownership, or management of housing is manifest, a tenant may not be evicted without a showing of good cause other than the expiration of the lease. The landlord’s petition is fatally defective since the sole gravamen of the petition is that the tenant’s lease had expired.” (at p. 2-3, citations omitted). See also 952 St. Marks Avenue HDFC v. White, 66 Misc.3d 35 (AT 2nd Dept, 2019), St. Vincent’s Services, Inc. v. Pitt, 80278/10, NYLJ 1202487375035 (Civ Ct, Queens Co, 2011) wherein the Court dismissed the proceeding stating at p. 3: “…it was clear from the testimony at trial that the respondent was not simply a monthly tenant of a private organization, but a client where there was some level of government involvement…. At the very least, the petition should have clearly stated all programs / agencies that were involved with the parties in order for the respondent, and this Court, to fully understand her rights and defenses that government entanglement would provide.” (Citations omitted). An issue not raised by the respondent directly, but put into issue by her documentation, specifically her exh. 1 to her affidavit in support of the motion, being the approval of her §8 voucher for a rental subsidy for the subject apartment dated 2002, that petitioner’s claim of no knowledge of her status is questionable. At best they ignored the evidence, at worst they failed to do their due diligence in determining the status of claimed tenancies by the parties occupying the years), must have had a lease at the beginning as evidenced by her having had an approved §8 subsidy for the subject apartment, and it is only due to the death of the then owner and the subsequent title issues that prevented her from having new leases and caused the loss of her §8 subsidy. This Court is of the opinion that, had petitioner done its due diligence it would have had to have reached the same conclusion. Thus, respondent was, and remains, a tenant, not a licensee, and, as required by case law, petitioner needed to plead more than the lack of a lease to institute this proceeding. It needed to plead good cause in its papers. Having failed to do that, and having failed to adequately set forth the regulatory status of the property, respondent’s motion is granted and the proceeding is dismissed. This is the decision and order of the Court. Copies are being mailed to both sides. Dated: July 9, 2020
