Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent’s Motions to Compel Compliance with Discovery Order (M Seq #2) and to Dismiss (M Seq #3) and Petitioner’s Motion to Amend Petition and for Summary Judgment (M Seq #4): Papers NYSCEF Doc # Notice of Motion (Seq #2) With Supporting Affirmation & Exhibits A-I 4 Notice of Motion (Seq #3) With Supporting Affirmation 6 Exhibits A-X in Support of Motion Seq #3 7-11 Notice of Cross-Motion (Seq #4) 13 Affirmation in Support of Cross-Motion 14 Edwards Affidavit in Support of Cross-Motion 15 Nieves Affidavit in Support of Cross-Motion 16 Joseph Affidavit in Support of Cross-Motion 17 Exhibits A-R in Support of Cross-Motion 18-36 Affirmation in Opposition to Cross-Motion 38 Reply Affirmation in Support of Cross-Motion 40 Upon the foregoing papers and for the following reasons, Respondent’s two pending motions and Petitioner’s cross-motion, consolidated herein for disposition, are decided as follows. PROCEDURAL BACKGROUND This is a holdover eviction proceeding brought by prime tenant Jewish Board of Family & Children Services (JBFCS), an “institution which operates exclusively for charitable purposes”, Petition at 5, against a subtenant whose “written rental agreement expired and [who] has remained as a month to month tenant.” Petition at 2. The Petition alleges that the premises are exempt from rent regulation under Rent Stabilization Code §2520.1(1), that Petitioner had “placed in occupancy [Respondent] as a subtenant pursuant to an Occupancy Agreement with no fixed term” and that such occupancy “is contingent upon an affiliation with such institution in an Intensive Treatment Apartment Program.” Petition at 5. The reasons for “termination of the tenancy” are stated in a “Notice Terminating Tenancy/Occupancy” dated November 26, 2018, which is attached to and incorporated by reference in the Petition. The termination notice advises Respondent that if he did not move out by December 31, 2018 a summary holdover proceeding would be commenced against him for the following reasons: (1) failure to pay the monthly fee required by the occupancy agreement from August 2016 through November 2018; (2) failure to meet with case manager as scheduled and excessive missed appointments with clinic provider; (3) failure to cooperate in obtaining arrears assistance and supportive housing from the City’s Human Resources Administration; and (4) non-compliance with psychiatric services and medication. The notice further alleges that Respondent was “discharged from the Intensive Treatment Apartment Program” after he failed to cooperate on an application for supportive housing; that Petitioner complied with “all requirements of 14 NYCRR Part 595″; that Respondent’s occupancy agreement permits termination for the stated reasons; that Respondent had been given notices required under “your occupancy agreement and applicable laws to provide you Due Process;” that, “At the end of the thirty (30) day period following the issuance of the Final Notice of Intent to Terminate Residence, you have not corrected the reasons for discharge and New York State Office of Mental Health [OMH] made a final decision to terminate your residency”; and that Petitioner had complied with all requirements under its contract with OMH. Respondent S.B1 retained counsel shortly after the first court appearance on January 24, 2019 and filed first an answer and then a discovery motion, seeking documents relevant to his defenses of failure to properly plead regulatory status, violation of due process and failure to comply with applicable OMH regulations, 14 NYCRR §§595.9 and 595.10. Housing Court Judge Weissman granted that motion by Decision and Order dated March 26, 2020. Given society-wide effects of the global COVID-19 pandemic, in requiring Petitioner to comply with Respondent’s document demand Judge Weissman ordered that Petitioner “shall be deemed to have complied if it complies with respondent’s document demand within 30 days of the Court’s resumption of normal scheduling.” Now before the court are three motions: (1) By Notice of Motion returnable March 16, 2021, Respondent seeks compliance with Judge Weissman’s Decision and Order granting discovery. (2) By Notice of Motion returnable June 17, 2021, Respondent seeks dismissal under three alternative provisions of the CPLR: Rule 3211(7) for failure to properly plead the regulatory status of the premises; Rule 3212 for violating due process and failing to comply with required conditions precedent to commencing the proceeding under OMH regulations 14 NYCRR §§595.9 and 595.10; and §3126 as a penalty for failure to fully respond to the discovery demand. (3) By Notice of Cross-Motion returnable July 15, 2021, Petitioner seeks to amend the petition pursuant to CPLR §3025 to include additional language regarding its contract with OMH and for summary judgment pursuant to CPLR R 3212. OMH INTENSIVE TREATMENT APARTMENT PROGRAM The New York State Office of Mental Health (OMH) is one of three autonomous offices within the New York State Department of Mental Hygiene. NYS Mental Hygiene Law (MHL) §5.01. The Commissioner of OMH has the power and responsibility to adopt regulations, MHL §501.1, which are codified in 14 NYCRR Ch. XIII. Part 595 of OMH’s regulations covers residential programs for adults diagnosed with a severe and persistent mental illness. The purpose of OMH’s residential programs is “to provide residential services which support and assist individuals with their goal of integration into the community” with “a rehabilitative focus”. 15 NYCRR §595.1(a). OMH’s residential programs are responsible for “engaging a resident in rehabilitative services consistent with the individual’s desire, tolerance and capacity to participate in such services.” Id. OMH’s residential programs include those falling under the broad headings of “support”, providing “supportive services designed to improve or maintain an individual’s ability to live as independently as possible and eventually access generic housing”, 14 NYCRR §595.4(a)(13), and/or “treatment”, providing “a rehabilitation-oriented residential program which focuses upon interventions necessary to address an individual’s specific functional and behavior deficits which must be resolved in order to access generic housing”, 14 NYCRR §595.4(a)(14). OMH regulations define three structural types of sites where its residential programs may be located, the first of which appears to be the one at issue in this proceeding: (1) “apartment”, which are self-contained units with appropriate staff support; (2) “congregate”, which provide group living with on-site staff; and (3) “service enriched single room occupancy”, which are private living units with on-site supportive services. 14 NYCRR §595.4(a)(12). All OMH programs must include a “discharge planning process” which “begins upon admission”. 14 NYCRR §595.9(a). Under specified circumstances, even residents who are not “discharge ready” may be discharged, 14 NYCRR §595.9(c), pursuant to a detailed set of procedures, 14 NYCRR §595.9(d)-(g). One category of residents who may be discharged even if they are not “discharge ready” are those who “fail[ ] to meet one or more material responsibilities for residency as described in section 595.10(a)(2) and (c) of this Part”. 14 NYCRR §595.9(c)(3). There are seven steps a provider must follow to discharge a resident under this section, set forth in 14 NYCRR §595.9(f), including, where reasonable efforts to assist the resident in meeting residency responsibilities are unsuccessful, 14 NYCRR §595.9(f)(1), and after a clinical assessment and efforts to identify a “mutually agreed upon discharge plan,” 14 NYCRR §595.9(f)(2), giving the resident first a 30-day preliminary notice of intent to terminate residency, 14 NYCRR §595.9(f)(3), and then a 30-day final notice of intent to terminate residency, 14 NYCRR §595.9(f)(4). The resident has the right to challenge the provider’s final notice at an OMH hearing, 14 NYCRR §595.9(f)(5), and, if not satisfied with the OMH hearing decision, the right to one further level of administrative review by the OMH Commissioner, 14 NYCRR §595.9(f)(6). BACKGROUND AND PRIOR PROCEEDINGS The documents annexed to both sides’ motion papers reflect the following undisputed relevant history. In April 2017, Petitioner gave Respondent a single-page2 “Preliminary Notice of Intent to Terminate Residency” dated April 4, 2017, advising him that the “Bronx Intensive Treatment Apartment Program” intended to terminate his residency for failure to meet his responsibilities. The notice listed three reasons for the proposed termination: noncompliance with case manager visits; noncompliance with psychiatric services and medication; failure to make his “board and care” payments. Petitioner then gave Respondent a four-page “Final Notice of Intent to Terminate Residency” dated May 8, 2017. This notice listed the same three reasons for the proposed termination as the “Preliminary Notice”, along with a fourth: noncompliance with Petitioner’s efforts to assist Respondent in applying for “supportive housing”. This “Final Notice” included a four-pronged “Process for Correcting the Situation” and information about Respondent’s right to an OMH appeal including an opportunity to meet with an OMH Field Office representative. Respondent acknowledged receipt of the notice by his witnessed signature at the bottom of the fourth page, dated May 9, 2017, where he also wrote, “I respectfully request an appeal of this decision.” The OMH Field Office issued a decision dated July 6, 2017 on Respondent’s appeal of his “discharge from [JBFCS]‘s Apartment Treatment Program in the Bronx”, after an inperson “595 review” attended by Respondent, two members of the OMH Field Office staff and two members of Petitioner’s staff. The decision included a 13-point “discharge plan” that “was formulated with your participation during the review” and concluded with the statement that, “it is expected that you will move on to either independent housing or supported housing within the next 6 months.” The decision stated that Respondent would be allowed to remain in Petitioner’s Apartment Treatment Program while working on the discharge plan “and until you are rehoused within the six-month period, through the HRA 2010E process or find a room rental, with care coordination services in place.” In the event of non-compliance, “JBFCS can discharge you from their program and you will be required to vacate the apartment treatment unit.” The decision concluded with information about how to request a further administrative review by the OMH Commissioner if either party was not satisfied. In September 2017 Petitioner served Respondent with a notice terminating his tenancy as a predicate to a holdover proceeding, requiring him to vacate the premises by October 31, 2017. There followed a holdover proceeding, L & T # 68941/2017, which was originally calendared for December 21, 2017 and then adjourned to February 15, 2018. Between the first and second appearances in that prior holdover proceeding, on January 2, 20183, the parties signed a new, seven-page Occupancy Agreement for the Bronx Treatment Apartment Program which lists Petitioner as the “Service Provider” and Respondent as the “Consumer”. On its first page the agreement states that it is, “in effect for the duration of the consumer’s stay at JBFCS’ Intensive Treatment Apartment Programs” and “shall remain in full force and effect unless terminated by either party as hereinafter described”. The agreement goes on to provide for “Fees & Payments”, “Occupancy Terms & Conditions”, “Resident Rights”, “Discharge Procedures — Vacating the Apartment” and “Due Process Discharge Procedures — Terminating Residency”. This last section provides a set of procedures that, “[i]f the program has to terminate your residency, you will be provided”, including a “Preliminary Notice of Intent to Terminate Residency” and a “Final Notice of Intent to Terminate Residency” with its notice of the right to submit a written objection to OMH. That prior holdover proceeding was adjourned on February 15, 2018 to March 21, 2018, then to May 14, 2018, then to July 5, 2018 and then to August 14, 2018, when, upon Respondent’s default, the court held an inquest and issued a judgment of possession against Respondent. On August 16, 2018 Respondent submitted an Order to Show Cause which the court signed and made returnable August 30, 2018. On the return date the Court issued a Decision and Order vacating the judgment and adjourning the case to October 4, 2018 for trial, noting that Respondent had provided a doctor’s note showing that he “had been in a hospital the day before the scheduled trial, was determined to be unable to perform his normal duties for a period of three days.” A notation on the court file jacket indicates that at the final appearance on October 4, 2018 the proceeding was withdrawn without prejudice. It is undisputed that Petitioner did not prepare and serve on Respondent another “Preliminary Notice of Intent to Terminate Residency” or “Final Notice of Intent to Terminate Residency” after the prior holdover proceeding ended and before the November 26, 2018 “Notice Terminating Tenancy/Occupancy” was served as a predicate to the holdover proceeding now pending before this court. DISCUSSION On a motion to dismiss under CPLR R 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail.” Guggenheimer v. Ginzburg (43 NY2d 268, 275, 401 NYS2d 182, 185, 372 NE2d 17, 20 [1977]), quoted in Polonetsky v. Better Homes Depot, Inc (97 NY2d 46, 54, 735 NYS2d 479, 483, 760 NE2d 1274, 1278 [2001]). The pleading is to be afforded a liberal construction, CPLR §3026, its allegations are accepted as true and the plaintiff (or petitioner) is accorded the benefit of every possible favorable inference. 511 W 232nd Owners Corp v. Jennifer Realty Co (98 NY2d 144, 152, 746 NYS2d 131, 134, 773 NE2d 496, 499 [2002]). In a summary eviction proceeding, the “four corners” of the petition include any required predicate notices that are annexed and incorporated by reference. See CPLR R 3014. However, while pleadings are generally subject to liberal amendment under CPLR R 3025(b), Edenwald Contracting Co v. New York (60 NY2d 957, 471 NYS2d 55, 459 NE2d 164 [1983]), such predicate notices are not amendable; if they are insufficient the proceeding must be dismissed, Chinatown Apts Inc v. Chu Cho Lam (51 NY2d 786, 412 NE2d 1312, 433 NYS2d 86 [1980]), without prejudice, Kaycee W 113th St Corp v. Diakoff (160 AD2d 573, 574, 554 NYS2d 216, 217 [1st Dep't 1990]). New York State courts evaluate the sufficiency of predicate tenancy termination notices based on a standard of reasonableness “in view of all attendant circumstances”. Oxford Towers Co, LLC v. Leites (41 AD3d 144, 837 NYS2d 131 [1st Dep't 2007]); Hughes v. Lenox Hill Hospital (226 AD2d 4, 17, 651 NYS2d 418, 427 [1st Dep't 1996], app dism’d, 90 NY2d 829, 683 NE2d 17, 660 NYS2d 552 [1997]). Predicate notices must “provide the necessary additional information to enable the tenant respondent to frame a defense to meet the tests of reasonableness and due process.” Jewish Theological Seminary of America v. Fitzer (258 AD2d 337, 338, 685 NYS2d 215 [1st Dep't 1999]). A predicate notice “need not lay bare a landlord’s trial proof” and will be upheld where, taken as a whole, it is sufficient to advise the tenant of the claim, McGoldrick v. DeCruz (195 Misc 2d 414, 758 NYS2d 756 [AT 1st Dep't 2003]). However, broad and unparticularized allegations may be too vague, generic and conclusory to enable a tenant to prepare a defense. 128 Second Realty LLC v. Dobrowolski (51 Misc 3d 147[A], 41 NYS3d 450 [AT 1st Dep't 2016]); 69 EM LLC v. Mejia (49 Misc 3d 152[A], 29 NYS3d 84 [AT 1st Dep't 2015]). Here, critical information necessary for Respondent to frame a defense is missing from the predicate termination notice. Petitioner’s notice fails to mention the fact that the “written month to month occupancy agreement” which Petitioner “elects to terminate” was dated January 2, 2018 and requires compliance with “Due Process Discharge Procedures” which must be adhered to “[i]f the program has to terminate your residency”, including, inter alia, a “Preliminary Notice of Intent to Terminate Residency” and a “Final Notice of Intent to Terminate Residency”. Petitioner’s notice also fails to state that the “Final Notice” and the OMH “final decision to terminate your residency” that are mentioned pre-dated the January 2, 2018 Occupancy Agreement and that Petitioner took none of the steps required by OMH regulations after the parties signed that new Occupancy Agreement. It was only after Respondent sought discovery, and moved for compliance with the court’s discovery order, that this chronology became clear. The omission of these critical facts from the predicate notice renders it insufficient “in view of all attendant circumstances,” Oxford Towers, supra; Hughes v. Lenox Hill Hospital, supra, as it cannot be found to have “sufficiently apprised respondent of the grounds on which [he] would have to defend the proceeding.” 3657 Realty Co LLC v. Jones (52 AD3d72, 859 NYS2d 434 [1st Dep't], app dism’d, 11 NY3d 829, 897 NE2d 1081, 868 NYS2d 597 [2008]). Even if the court were to find the predicate termination notice sufficient, Respondent is entitled to summary judgment under CPLR R 3212. Petitioner’s offer of a new Occupancy Agreement to Respondent vitiated its earlier actions to terminate Respondent’s participation in Petitioner’s OMH-funded residential treatment program. The new Agreement revived the parties’ relationship and created a fresh start for Respondent. This is evident not only from the face of that Agreement but also from the fact that OMH’s July 6, 2017 determination describes a six-month period during which Respondent would be allowed to remain in the program while working on a discharge plan. As set forth in that determination, Petitioner was permitted to, and did — as evidenced by the prior holdover proceeding —discharge Respondent from Petitioner’s program due to alleged non-compliance and seek his eviction. However, rather than seeing that proceeding through to the end and securing a judgment of possession and warrant of eviction, prior to the end of the six-month period commencing when OMH issued its decision dated July 6, 2017 Petitioner offered, and Respondent accepted, a new “Intensive Treatment Apartment Programs Occupancy Agreement” which both parties signed on January 2, 2018. The parties’ execution of that new Agreement resulted in a binding contract, Jacreg Realty Corp v. Barnes (284 AD2d 280, 280-81, 727 NYS2d 103, 104 [1st Dep't 2001]), and the steps Petitioner took and notices it served in 2017 prior to the execution of that agreement cannot serve as the predicate for this eviction proceeding. Compare, e.g., Kaycee W 113th St Corp v. Diakoff (160 AD2d 573, 573, 554 NYS2d 216, 216-17 [1st Dep't 1990]); In re Touloumis (170 BR 825, 830 [US Bankruptcy Ct SDNY 1994]); and see Mut Hous of Tompkins Cty v. Hawes (4 Misc 3d 247, 780 NYS2d 276 [City Ct Ithaca 2004]). The cases Petitioner cites to in support of its argument that OMH’s unappealed decision of July 7, 2017 is “res judicata and/or collateral estoppel as to what OMH heard pursuant to the Final and referenced in the Notice of Termination”, Petitioner’s Reply Affirmation at 22, and that Respondent’s only remedy was to challenge the OMH decision in a proceeding under Article 78 of the CPLR4, are inapposite. In none of those cases — all holdover proceedings preceded by either a City or State housing agency’s decision to deny the respondent-occupant’s request for tenancy rights in “Mitchell-Lama”/Private Housing Finance Law apartments — did the petitioner offer the respondent a new occupancy agreement following the government agency’s decision. Further, Petitioner’s argument that the parties’ new Occupancy Agreement of January 2, 2018 did not void OMH’s decision is unsupported. That Agreement speaks for itself, page six of which is entitled “Due Process Discharge Procedures — Terminating Residency” and states, “If the program has to terminate your residency, you will be provided with the following discharges procedures.” The Agreement goes on to describe the required two notices (“Preliminary” and “Final”) and the resident’s right to challenge the “Final Notice” at an in-person meeting at the OMH Field Office. Petitioner followed none of these procedures after the parties entered into the new Agreement and, accordingly, failed to comply with conditions required to be met before commencing this proceeding. The absence of an affidavit from Respondent “attesting as to any impact, whether it be reliance or confusion, that any ‘new’ agreement had on Respondent”, Petitioner’s Reply Affirmation at 23, is of no moment. The Agreement is complete, unambiguous and clear on its face, rendering any parol evidence inadmissible. R/S Assocs v. NY Job Dev Auth (98 NY2d 29, 33, 744 NYS2d 358, 360-61, 771 NE2d 240, 242-43 [2002]). As Respondent’s motion to dismiss and for summary judgment is being granted for the reasons stated above, there is no need to address the other branches of Respondent’s motion. Further, both Respondent’s earlier undecided motion seeking compliance with Judge Weissman’s discovery order, and Petitioner’s cross-motion to amend the petition and for summary judgment, are denied as moot. CONCLUSION For the reasons stated above, it is hereby ORDERED that the petition is dismissed. This constitutes the Decision and Order of this Court, a copy of which is being uploaded to NYSCEF. Dated: October 28, 2021
