Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers Numbered Respondent’s Notice of Motion, along with Affirmation and Affidavit in Support, and Exhibits 1-13 Petitioner’s Affirmation in Opposition, along with Affidavit in Opposition, and Exhibits 14-19 Respondent’s Affirmation in Reply, along with Affidavit in Support, and Exhibits 20-23 Papers Considered: (NYSCEF Doc. Nos. 1 through 35) DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on Respondent’s motion for summary judgment to dismiss due to lack of due diligence service attempts mandated for termination notice and petition by the amended CEEFPA and Part C, subpart A of Chapter 417 of the Laws of 2021; pursuant to the Williams Consent Decree, due process, and RPAPL §741, due to defects including the failure to sufficiently plead regulatory compliance, failure to serve the New York City Housing Authority (“NYCHA”), and failure to engage the housing authority process for eviction certification; pursuant to statutory and common law retaliatory protections; and/or alternatively, to indefinitely stay due to petitioner’s failure to timely offer the disabled Navy veteran any good faith cooperative dialogue as to his reasonable accommodations, is as follows. FACTS AND PROCEDURAL HISTORY Petitioner Lake Sutter Ave Corp (“Petitioner”), commenced this holdover proceeding against Respondent-Occupants Stephen Manning, John and Jane Doe, and NYCHA Section 8, seeking a money judgment and possession of 1088 Sutter Avenue, Apartment 2B, Brooklyn, NY 11208 (the “subject premises”). The proceeding was premised on an allegation that respondent’s tenancy had been terminated by service of a Sixty (60) Day Notice of Termination. The notice terminating the tenancy had been served on respondent on February 17, 2022, providing for removal from the premises by April 30, 2022. Respondent failed to do so, and the notice of petition and petition commencing this action were filed on May 3, 2022. Service of the petition was effectuated on June 13, 2022, by affixing the papers to the door and then mailing a copy to Respondent. NYCHA was apprised of the Sixty (60) Day Notice of Termination and then commencement of this action via regular first class and certified mailings per Petitioner’s affidavits of service, which were addressed to “N.Y.C.H.A. Section 8, 90 Church Street 9th Floor, New York, NY 10007,” but there is no date provided for the mailings. Respondent served a Demand for a Bill of Particulars on Petitioner on September 21, 2022 and filed an Answer. Thereafter, Respondent filed the instant motion. Petitioner filed an Affirmation in Opposition, and Respondent filed an Affirmation in Reply. DISCUSSION PETITIONER’S MOTION FOR SUMMARY JUDGMENT For the reasons stated below, Respondent’s motion for summary judgment is granted and the proceeding is dismissed. Petitioner has not successfully raised a material question of fact or an affirmative defense sufficient to defeat Petitioner’s showing. All additional forms of relief sought are rendered academic. In order to establish a prima facie entitlement to summary judgment, the moving party must demonstrate that there are no material issues of fact (see Tuck-It-Away at 135th St. Inc. v. Tuck-It-Away Assoc. L.P., 2023 NY Slip Op 50051(U), 3, 77 Misc. 3d 1227(A) [Civ. Ct. N.Y. Co. 2023], citing Winegrad v. N.Y. Univ. Med Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]; Zuckerman v. City of N.Y., 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]). CPLR §3212(b) provides that a motion for summary judgment must be supported by an affidavit of a person with knowledge of the facts, as well as other admissible evidence (see JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d 373, 384-85, 828 N.E.2d 604, 795 N.Y.S.2d 502 [2005]). Courts should only grant motions for summary judgment motion when there is no triable issue of material fact. Fernandez v. Jones, 76 Misc.3d 861, 867, 175 N.Y.S.3d 449 (Civ. Ct. Bronx Co. 2022). Upon this showing, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986], citing Zuckerman v. City of N.Y., 49 NY2d at 562). In doing so, the opposing party must “lay bare his proofs and make an evidentiary showing that there exists genuine, triable issues of fact” (Oates v. Marino, 106 AD2d 289, 291, 482 N.Y.S.2d 738 [1st Dept. 1984]). However, neither the shadowy semblance of an issue nor bald conclusory assertions are sufficient to defeat a motion for summary judgment. (S. J. Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776 (1974); Gelb v. Bucknell Press, Inc., 69 A.D.2d 829, 830, 415 N.Y.S.2d 89 (App. Div. 2nd Dept. 1979). Petitioner’s pleadings admit that Respondent receives a Section 8 subsidy through NYCHA. Accordingly, Petitioner is bound by the Williams Consent Decree, as established in Williams v. New York City Hous. Auth., 81 Civ 1801 (SDNY 1995) (“Williams”). Further, in 1646 Union, LLC v. Simpson, 62 Misc. 3d 142(A), 113 N.Y.S.3d 459 (App. Term 2nd Dept. 2019), the Appellate Term noted that: Because a summary proceeding is a statutory proceeding (see RPAPL art 7), relief can be granted to a petitioner only where all the elements of the petitioner’s cause of action have been made out, a requirement which is sometimes referred to as “jurisdictional”…Moreover, in a special proceeding, such as a summary proceeding (see RPAPL 701), the court is required to “make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised,” and dismissed the proceeding due to the petitioner having failed to terminate the tenancy by proper notice, as is required as part of the predicate notices underlying a holdover proceeding. As NYCHA is the Section 8 administrator for Respondent, it was required to have been properly notified of Petitioner’s notices so that it could act if it saw fit. “Notification is important to enable the PHA to monitor the actions of the landlord and to afford it the opportunity to intervene if it deems it necessary to protect the interests of the Section 8 tenant.” Grote St. Apts., L.P. v. Philip, 2023 NY Slip Op 30755(U) (Civ. Ct. Bronx Co. 2023), citing Town of Oyster Bay Hous. Auth. v. Kohler, 34 Misc 3d 1243[A], 2012 NY Slip Op 50518[U] (Dist Ct. Nassau Co. 2012). The court in Shuming Wang v. Yelverton, 2023 NY Slip Op 23299 (Civ. Ct. Kings Co. 2023) notes, in pertinent part, that “Service on a Section 8 administrator is an essential element of Petitioner’s prima facie case (433 W. Assocs. v. Murdock, 276 A.D.2d 360, 715 N.Y.S.2d 6 [1st Dept 2000])…Williams mandates that NYCHA — but not other Section 8 administrators — be served in specific ways.” Specifically, the court in Woody Heights LLC v. James, 2020 NYLJ LEXIS 438 (Civ. Ct. Bronx Co. 2020), enumerates this requirement [emphasis added]: The Williams Consent Decree establishes the guidelines and rules governing Section 8 tenancies that are administered by the NYCHA. (See Williams v. New York City Housing Authority, 975 F Supp 317 [SDNY 1997]). Pursuant to paragraph 4 of the Williams Consent Decree, good cause is necessary for the eviction of Section 8 tenant even after the Section 8 lease and Housing Assistance Payment (HAP) contract has expired or been terminated. Generally, when an eviction proceeding arises out of Section 8 issues related to the termination or suspension of the subsidy the Williams Consent requires a landlord notify the NYCHA via service of a Certificate of Basis of eviction. The Williams Consent Decree requires that in a holdover that does not arise out of the termination or suspension of the Section 8 subsidy or termination of the HAP contract, the NYCHA must be served the Petition and Notice of Petition as the state law required or by overnight mail. Specifically, it requires the landlord to, “upon commencement of the proceeding, serve a copy of the Notice of Petition and Petition on the Authority or send a copy of said documents to the Authority by overnight mail.” (Williams Consent Decree, Paragraph (6)(b)(2); Johnson v. Woods, NYLJ, Sep 6, 2017 at 33 [Civ. Ct. Queens Co. 2017]). “The NYCHA must be served the petition and notice of petition as the state law requires or by overnight mail (See paragraph 6(b)(2) of the Williams consent decree.) The order makes no other method of delivery available to the private landlord.” (Alawlaqi v. Kelly, 175 Misc 2d 570, 571, 1998 NY Slip Op 98076 [Civ. Ct. Kings Co. 1997]). NYCHA must be served pursuant to RPAPL §735, or via overnight mail. Here, Petitioner’s affidavits of service provide that NYCHA was served the predicate notice and notice of petition and petition via regular first class and certified mail. This does not meet the Williams standard required of service upon NYCHA. Additionally, the papers were addressed to “N.Y.C.H.A. Section 8, 90 Church Street 9th Floor, New York, NY 10007.” This Court takes judicial notice that NYCHA’s legal service address is in fact 90 Church Street 11th Floor, New York, NY 10007, so the addressing is also incorrect. As NYCHA is a necessary party to this action, and NYCHA has not been properly served in this action, this Court has never obtained jurisdiction over NYCHA. Based on the foregoing, Respondent is granted summary judgment and the petition is dismissed. The rest of Respondent’s arguments are rendered academic, as this Court need not reach them. This constitutes the decision/order of this court, which shall be uploaded to NYSCEF. Dated: October 19, 2023
