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2022-03-21
305 WEST 97th ASSOCIATES LP v. Lonesome 305 WEST 97th ASSOCIATES LP v. Lonesome
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CIVIL COURT
OF
THE CITY OF NEW YORK
COUNTY OF NEW YORK: HOUSING PART H
-----------------------------------------------------------------)(
305 WEST 97rn ASSOCIATES LP,
Petitioner-Landlord,
against
TIMOTHY LONESOME,
Respondent(s)-Tenants.
------------------------------------------------------------------)(
HON. EVON M. ASFORIS
L&T Index No. 302484-21
DECISION/ORDER
Recitation, as required
by
CPLR
22
l 9(a),
of
the papers
conside
red in the review
of
Respondent's motion
to
dismiss
th
e Petition pursuant
to
CPLR
§ 321 I:
Papers Numbered
Not
i
ce
of
Motion, & Affidavits
Annexed
.................. I
Answering
Affirmation, and Exhibits ........................ 2
Reply Affirmation, and Exhibi
ts
...............................
.3
Sur-r
ep
ly Affirmation, and
Ex
hibits .......................... .
Upon
the
foregoing cited papers,
the
Dec
ision/Order
on
this Motion
is
as follows:
Relevant Procedural History
305 West
97th
Associates LP ("petitioner") commenced this a
ll
eged nuisance holdover
proceeding against Timothy Lonesome ('respondent") to recover possession
of
Apartment 7P
located at 305 West
97th
Street,
New
York, New York ("subject premises"). Petitioner served a
Notice to Cure dated September 25, 2020, on respondent. The Notice to C
ur
e alleges that
respondent has engaged in criminal conduct, endangered res
id
ents, and staff
of
the subject
building, interfered with the other residents' quiet e
nj
oyment
of
the building, and caused a
nuisance. On March 26, 2021, petitioner served a Notice to Terminate asserting that respondent
failed to cure the a
ll
eged breaches and is still engaging in criminal conduct, interfering with the
oth
er
residents' quiet e
nj
oyment
of
the building, and causing a nuisance. Petitioner also served
NY CHA with the Notice to Cure and Notice to Terminate. Upon expiration
of
the Notice to
1
Terminate, petitioner served respondent with a Notice
of
Petition and Petition dated April 30,
2021.
Respondent retained counsel and moved
by
notice
of
motion dated October 15, 2021 , to
dismiss the Petition pursuant to Civil Practice
Law
and Rules
("CPLR
")
§§
3211 (a)(l ), (7) and
( 10). Respondent argues in his pre-answer motion, that petitioner failed to serve the
New
York
City Housing Authority ("NYCHA") pursuant to the Williams consent decree (see, Williams v
New York City Housing Authority,
81
Civ.
1801
(SDNY, Feb. 2, 2005)). Respondent argues
that petitioner failed to serve a copy
of
the Notice
of
Petition and Petition by overnight mail or
pursuant to Real Property Actions and Proceedings
Law
("RP APL
")
on
NY
CHA and therefore
the proceeding must be dismissed.
In opposition, petitioner argues that although the Williams consent decree normally
requires service
of
the Notice
of
Petition and Petition
by
overnight mail, due to the impact
of
the
Covid-19 pandemic, NYCHA permitted service upon its agency by an alternate method.
Petitioner argues it served
NYCHA
pursuant to the rules posted by
NYCHA
during the
nationwide pandemic. Petitioner asserts that NY CHA permitted service
of
process during the
pandemic by email and regular mail. Petitioner argues that the Notice
of
Petition and Petition
were served on NYCHA by regular mail as per NYCHA's notice. In the alternative, petitioner
asks the court to add
NY
CHA as a necessary party instead
of
outright dismissal
of
the Petition.
The court notes that the portion ofrespondent's motion claiming petitioner was required to serve
the Notice to Cure
on
NYCHA
is withdrawn by respondent's counsel.
This case first appeared in resolution Part H
on
October 20, 2021, for a conference and
was adjourned several times for an Adult Protective Services ("APS") referral and the
appointment
of
an Article
12
GAL
as requested by APS. On December 23, 2021 , the court
2
appointed Thomas Giles as GAL for respondent and the matter was adjourned to January
11
,
2022, for oral argument
on
the motion.
Motion to Dismiss
Respondent seeks dis
mi
ssal
of
the Petition pursuant to CPLR § 321 l(a)(l), (a)(7) and
(a)(l 0) for petitioner
's
failure to serve
NY
CHA pursuant to the Williams consent decree.
Respondent argues that petitioner's failure to properly serve the No
ti
ce
of
Petition and Peti
ti
on
by
overnight mail renders this holdover proceeding fatally defective. As set forth by the
Williams consent decree, there are numerous procedural steps for lan
dl
ords to follow prior to and
in the course
of
commencing an eviction proceeding, including the manner
of
service
of
the
required eviction notices on NYCHA (see, Williams v New York City Housing Authority, 81
Civ.
1801
(SDNY, Feb. 2, 2005); Clinton-178 Towers LLC v Chapple, 58 Misc3d 198 (Civ Ct,
Bx Cty 20
17
); 433 West Assoc. v Murdock, 276 AD2d 360
[1
51
Dept, 2000]; 24 CFR 982.310).
Respondent relies
on
the language
of
the Williams consent decree and current case law in
support
of
his mo
ti
on.
Mor
e specifically, paragraph 6(b)(2)
of
the decree states, "[w]ith regard
to eviction proceedings to w
hi
ch the certification procedure does not apply, the landlord sha
ll
:
(2) 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."
It
is undisputed respondent is a participant
of
the Section 8 program administered by
NY CHA, and petitioner failed to serve its Notice
of
Petition and Petition on
NY
CHA
or
send
them a copy by overnight mail. However, petitioner argues that due to the nationwide pandemic
caused by Covid-19 last year, NYCHA permitted service upon its agency by an alternate method.
Petitioner argues that it served a copy
of
the Notice
of
Petition and Petition pursuant to the t
er
ms
of
service posted by
NYC
H
A.
NY
CHA posted on its web
pa
ge that service on its office during
3
the pandemic may be accomplished by several means, including but not limited to email or
regular mail. Petitioner argues its service should be deemed sufficient because it served the
Notice
of
Petition and Petition, by regular mail on May 22, 2021, pur
sua
nt to
NYCHA's
notice.
The Notice
of
Service
of
Process for
NY
CHA specifically states:
Starting
on
Thursday,
November 5, 2020,
the
NYCHA
Law
Department
will accept service
of
process
at
the service window, 90
Church
Street, New York,
11th
floor. The window will be open on
Tuesdays
and
Thursdays from 9 AM to 5
PM
.
Service
of
process
on
NY
CHA will
al
so be accepted via email:
ServiceECF@nycha.nyc.gov. This email address may be utilized for
service
of
papers for NY
CHA
such as Orders to Show Cause, Notices
of
Claim, Summonses, Subpoenas, and other legal papers that may be
served at the service window at 90 Church Street,
11th
floor,
New
York,
NY
10007. Service
of
process
on
individuals should continue to proceed
in the manner required by applicable law.
Service
of
papers may also be effectuated
by
mailing to:
NYCHA Law Department
90
Church Street,
11th
floor
New
York, NY 10007
Attn: Law Department/Service
Additionally, NYCHA also posted on its web page a Notice from the Leased Housing
Department ("Notice") to all Section 8 Landlords. Petitioner's counsel attaches the Notice to and
refers to it in her motion papers to support petitioner
's
argument the Notice to Cure was timely
served
on
NY
CHA, as it was served with the Notice
of
Termination (see, Affirmation
of
Candace
C.
Carponter, Para. 17). The Notice specifically states,
"J
udge Ward signed the Second Partial
Consent Judgment in Williams v New York City Housing Authority (NYCHA)
on
February
14
,
1995
...
. Under the terms
of
this Consent Judgment, when you wish to commence eviction
proceedings against a
NYCHA
Section 8 tenant, you are required to
...
"
For Holdover Proceedings, only those that are based on termination or
suspension
of
Section 8 subsidy require the use
of
these forms.
If
4
Holdover Proceedings are brought for any other reason, you are merely
required to mail to the New York City Housing Authority's Eviction
Review Unit a copy
of
the Notice to Vacate
on
the same date that it has
been served
on
the tenant. You will then be required to deliver by
overnight mail a copy
of
the Notice
of
Petition and Petition. (Emphasis
added).
Although petitioner fails to focus on the requirement
of
delivery by overnight mail in its
argument it is still a requirement, nonetheles
s.
"A summary proceeding is a special proceeding
governed entirely by statute [citations omitted] and it is well established that there must be
st
rict
compliance with the statutory requirements to give the court jurisdiction [citations omitted]"
(MSG Pomp Corp v Doe,
185
AD2d 798
[1
st Dept App Div 1992]).
The
failure to strictly
comply with the statutes governing summary proceedings deprives the court
of
jurisdiction and
mandates dismissal. Herein, it is also well established that a landlord must abide by the terms
of
the Williams consent decree, the statutory guidelines, to maintain a proceeding against a
NY
CHA Section 8 tenant, such as respondent. Petitioner failed to abide by the terms
of
the
NYCHA guidelines.
Moreover, the court is not persuaded by petitioner
's
argument that an alternate method
of
service was available. Although
NY
CHA provided guidelines for additional means
of
service
because
of
the pandemic, this additional method did not replace service pursuant to the WU!iams
consent decre
e.
Even so, petitioner failed to comp
ly
with the alternate method
of
service by
mailing the Notice
of
Petition and Petition to the
9t
h floor instead
of
the
11th
floor as required by
the notic
e.
While the court recognizes the serious allegations in this case are compelling and
sympathetic, the court has a duty to ensure that the law and its requirements are upheld prior to
addressing the merits
of
the case. The Williams consent decree further requires that
if
a landlord
fails to notify
NY
CHA properly and join them as a necessary party, this shall require dis
mi
ssal
5
of
the proceeding without prejudice. Here, the court finds that petitioner's service
of
the Notice
of
Petition
and
Petition was not in accordance with the statutory guidelines for commencing a
proceeding against a
NY
CHA
Section 8 tenant and therefore,
the
proceeding must
be
dismissed.
Conclusion
Accordingly, respondent's motion to dismiss is granted and the Petition is dismissed.
The
dismissal is without prejudice to petitioner's claims for possession.
This constitutes the decision and order
of
this court.
Dated:
New
York,
New
York
March 21, 2022
The
Law
Firm
of
Candace C. Carponter, P.C.
Attorneys for Petitioner
31
Smith Street,
2nd
Floor
Brooklyn,
New
York 1120 I
(212) 367-9600
ccarponter@carponterlaw.com
Manhattan Legal Services
Ricky He, Esq.
Attorneys for Respondent
1 West 125
111
Street
New
York,
New
York
10027
(646) 442-3172
rhe@lsnyc.org
GAL Thomas Giles
(646) 305-2658
threetjg@gmail.com
6
EVONM.A
FO
JUDGE HOUSING COURT
