Recitation, as required by CPLR §2219(a), of the papers considered in the review of Respondent’s Notice of Motion (Seq. 1) and any other relief as the court may find appropriate: Papers Numbered Notice of Motion (Seq. 1) with Affirmation, Affidavit and Exhibits NYSCEF #8-24 Affirmation, Affidavit and Exhibits in Opposition NYSCEF #25-33 Affirmation, Affidavit and Exhibits in Reply NYSCEF #36-55 DECISION/ORDER Relief Sought Respondent submits the instant motion seeking an Order dismissing this proceeding pursuant to: CPLR §3211(a)(1) based upon the documentary evidence; CPLR §3211(a)(2) based upon defects in the predicate notice and pleadings; failure to comply with conditions precedent to commencement of this proceeding; CPLR §3211(a)(7) for failure to state a cause of action; RPAPL §741 for failure to sufficiently state the facts upon which the proceeding is based; CPLR §3211(a)(2) and RPAPL §735 for failure to serve or properly serve the predicate notice; upon the due process clauses of the Federal and State Constitutions; and for failure to serve a Violence Against Women Act (“VAWA”) notice. Background This is a holdover proceeding in which Petitioner seeks to recover the premises located at 1471 Brooklyn Avenue, apartment 3, Brooklyn, New York (“premises”). Petitioner states that Respondent’s monthly hiring of the premises expired on February 29, 2024, however, Respondent continues in possession thereof. The premises is not subject to rent regulation as it is in a building containing less than six apartments which became vacant after June 30, 1971. However, there was a period when the premises was subject to regulation due to Petitioner’s participation in a 421-a tax abatement program. The tax abatement program for the building in which the premises is located expired in February 2023. Prior to the expiration of the 421-a tax abatement program, Petitioner provided Respondent with a notice of expiration of the program and subsequent deregulation of the premises. The notice was annexed to the one-year renewal lease dated July 30, 2022, and electronically signed by Respondent. The notice was entitled “421-a Rider to Lease”. It is undisputed that at the time this proceeding was commenced, Respondent received a section 8 subsidy administered by NYCA. VAWA Notice Respondent argues, inter alia, that this proceeding must be dismissed based upon Petitioner’s failure to attach the required VAWA notice to is Notice of Termination. Under Federal law, VAWA protections must be given to tenants of “covered housing providers”. 24 CFR §5.2005(a)(1) and 34 USC §12491. In 2005, VAWA was expanded to include protection for victims of domestic violence who, like Respondent, participate in the Section 8 Housing Choice Voucher Program. Johnson v. Palumbo, 154 AD3d 231, 240 (2nd Dept. 2017). Thus, pursuant to 24 CFR §5.2005(a)(1)(i) and 24 CFR §5.2005(a)(1)(ii), Petitioner, as a covered housing provider, was required to serve Respondent with a “Notice of Occupancy Rights under the Violence Against Women Act” when it commenced this eviction proceeding. A review of the Notice of Termination reflects that Petitioner failed to annex a VAWA notice. Petitioner’s non-compliance with the VAWA requirements mandates a dismissal of this proceeding. Diego Beekman Mutual Housing Association H.D.F.C. v. McClain, Index No. L&T 320278/23, unpublished (Civ. Ct. Bx. Co., January 10, 2024) since the defective predicate notice cannot be amended Chinatown Apts., Inc. v. Chu Cho Lam, 51 NY2d 786, 788 (1980). This Court rejects Petitioner’s argument that Respondent’s Supplemental Affirmation, which contains the VAWA argument, must not be considered since it was made without leave of Court. The Supplemental Affirmation is dated September 1, 2024, and the motion was noticed to be heard October 24, 2024. CPLR §2214 requires a motion and supporting affidavits to be served at least eight days before the motion is noticed to be heard. Thus, the Supplement Affidavit is timely and conforms with the requirements of CPLR §2214. For the reasons stated herein, this proceeding is dismissed. The Court does not address the other branches of Respondent’s motion as same are deemed moot. This constitutes the Decision and Order of this Court. Dated: November 8, 2024
