Jewish Bd. of Family & Children's Servs., Inc. v Sabater

[*1] Jewish Bd. of Family & Children's Servs., Inc. v Sabater 2024 NY Slip Op 50516(U) Decided on April 30, 2024 Civil Court Of The City Of New York, Bronx County Lutwak, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 30, 2024
Civil Court of the City of New York, Bronx County

The Jewish Board of Family and Children's Services, Inc., Petitioner-Landlord,

against

Carlos Sabater, Respondent-Sub-Tenant,
John Doe/Jane Doe, Respondents-Undertenants.



L&T Index No. 340642-23/BX



Petitioner's Attorney:
Gregory Bougopoulos, Esq.
Novick Edelstein Pomerantz P.C.
GBougopoulos@novickedelstein.com
(914) 375-0100
733 Yonkers Ave, 6th Fl, Yonkers NY 10704

Respondent's Attorney:
Nina S. Bernstein, Esq.
Bronx Legal Services
NBernstein@lsnyc.org
(718) 928-3700
349 E 149 St, 10th Fl, Bronx NY 10451
Diane E. Lutwak, J.

Recitation, as required by CPLR R 2219(A), of the papers considered in the review of Respondent's Motion to Dismiss and Petitioner's Cross-Motion to Amend Petition:

Papers NYSCEF Doc #
Respondent's Motion to Dismiss 15
Attorney's Affirmation & Respondent's Affidavit in Support 16, 17
Respondent's Exhibits A-D 18-21
Amended Petition and Affidavit of Service 22, 23
Petitioner's Notice of Cross-Motion 24
Attorney's Affirmation & Agent's Affidavit in Opp to Motion & Support of Cross-Motion 25, 26
Petitioner's Exhibits A-D 27-30
Attorney's Affirmation in Reply on Motion, Opp to Cross-Motion 32
Respondent's Exhibits E-F 33-34
Attorney's Affirmation in Reply on Cross-Motion 35

Upon the foregoing papers, and for the reasons stated below, Respondent's motion to dismiss and Petitioner's cross-motion to amend petition, consolidated herein for determination, are decided as follows.

PROCEDURAL HISTORY

This is a holdover eviction proceeding brought by a prime tenant against a sub-tenant. The petition states that Respondent resides in the apartment pursuant to a written agreement commencing January 1, 2022 (Petition at ¶ 2) and the premises are exempt from rent regulation because they are "owned, operated, leased or rented" by a non-profit organization and occupied by someone "whose initial occupancy was contingent upon an affiliation with such institution" (Petition at ¶ 8). The last sentence of paragraph 8 of the petition states: "The premises is subject to a supportive housing program through a contract with the New York City Department of Health and Mental Hygiene." Paragraph 9 of the petition states that Respondent's term was terminated by reason of the grounds stated in the attached notices.

There are three notices attached to the petition, labelled as follows:

• "Thirty (30) Day Notice of Termination" dated July 24, 2023 ("30-day Notice"), comprised of one page;• "Notice of Final Discharge Notification" dated March 3, 2023 ("Final Notice"), comprised of two pages;• "Preliminary Notice of Intent to Terminate Residency" dated January 19, 2023 ("Preliminary Notice"), comprised of two pages.

The 30-day Notice references Real Property Law (RPL) § 228 and states that Petitioner was terminating Respondent's "sub-tenancy-at will" pursuant to sections of his "Supported Apartment Program Occupancy Agreement", specifically section three entitled "Involuntary Termination of the Residency". The notice states that the apartment "is subject to an unlicensed Supportive Housing Program" and:

Your landlord possesses good cause to terminate your tenancy at will, as demonstrated by, but not necessarily limited to, the following:1. The landlord delivered a Preliminary Notice of Intent to Terminate Residency, dated January 19, 2023, to you, a copy of which is annexed hereto and made a part hereof. You failed to comply therewith, and the landlord delivered a Notice of Final Discharge Notification, dated March 3, 2023, to you, a copy of which is annexed hereto and made a part hereof. The grounds for good cause to terminate your subtenancy at will are included in said notices.2. You have refused and/or failed to vacate the subject apartment, despite your discharge from the program.

The Preliminary Notice lists the parties' names at the top of the first page, references the "Manhattan/Harlem Supportive Housing Program" and advises Respondent that the program intended to terminate his residency as he failed to meet his residency requirements. An "Explanation" section on the lower part of page 1 describes complaints received from the landlord and neighbors in the building about Respondent disturbing the peace and posing a fire safety concern by making loud noises in the hallway, playing loud music while leaving his apartment door ajar, leaving the fire door ajar and smoking in his apartment, with incidents specified by dates and noting that program staff "attempted to meet with you on 12/20/22 as per [*2]your request to discuss a plan and you were not present for the meeting." The notice explains that the listed conduct violates the occupancy agreement, specifically a section prohibiting residents from making or permitting "noises or acts that will disturb the rights or comfort of roommate(s) or the other residents in the building." This notice appears to be missing "page 2": the last sentence on the bottom of the first page is incomplete and the second page, labelled "3", starts with a telephone number, without completing the sentence at the bottom of the first page. "Page 3" goes on to say that if the issues were not successfully resolved within 30 days a final notice would be issued and concludes with a dated "Witness Signature" and, on the line entitled "Resident Signature", the handwritten phrase, "Ct refused to sign". There is no page labelled "2."

The Final Notice advises Respondent that the "Manhattan Harlem Supportive Housing Program" intended to terminate his residency on April 2, 2023 due to his failure to meet his residency requirements and is comprised of the following sections:

• The first, entitled "Explanation", includes the same description of complaints as is in the Preliminary Notice with additional allegations, including using "aggressive language" when confronted, a complaint of Respondent making excessive noise and smoking in his apartment on a date following the cure period, the statement that, "We are concerned about your safety as some of the neighbors have made threats on your life and there is further concern surrounding the potential of you starting a fire due to smoking in your unit or allowing a fire to spread if the fire safety door is kept ajar", and a description of further steps taken by the program "To assist you with correcting the behaviors". The notice explains that these behaviors violate specified terms of the Occupancy Agreement that prohibit excessive noise and smoking anywhere other than in designated areas outside the building and, "For these reasons, you must relocate to another Jewish Board unit."
• The second, entitled "Process for Correcting the Situation", lists four instructions:• You will work with program staff and agree to being relocated to a single unit provided by the Jewish Board.• You will work with Safe and Secure Homes on fire safety and will refrain from smoking in your unit or common areas in the building.• You will not leave the apartment door or the fire door open.• You will not make loud noises in or outside of your unit or disturb the peace within the building.• The third, entitled, "Alternative Residential and Service Options", provides three choices:• You have the option of relocating into another supportive housing unit within JBFCS that will be made readily available to you. This option will require you to work with your current Case Associate (Carmen Jones) who will inform you of the move in date.• Or: You can go to the PATH DHS Homeless Shelter located at 151 E. 1515t street, Bronx, NY (718) 503-6400.• Or: You can work provide the documentation needed to assist you with the completion of a HRA 2010 E to help you find supportive housing.• At the bottom of the second page is a dated "Witness Signature" and, on the line entitled "Resident Signature", the handwritten phrase, "Ct refused to sign".

Now before the court is Respondent's pre-answer motion seeking an order of dismissal [*3]based on the following grounds:

(1) under CPLR R 3212 due to Petitioner being funded by the New York State Office of Mental Health (OMH), as evidenced by Petitioner's contract with that agency [Respondent's Exhibit B/NYSCEF Doc. #19], and having violated due process protections and applicable State regulations found in 14 NYCRR § 595.10; and(2) under CPLR R 3211(a)(1) and (a)(7) and RPAPL § 741(3) due to Petitioner's failure to state that the apartment and Respondent's tenancy are subject to Rent Stabilization, evident from rent registration information on file with the New York State Division of Housing and Community Renewal (DHCR)[Respondent's Exhibit C/NYSCEF Doc. #20] and as required by changes to the applicable law made by the Housing Stability and Tenant Protection Act of 2019 (HSTPA); and(3) under CPLR R 3211(a)(1) and (a)(7) due to Petitioner's failure to state a ground for termination under the Rent Stabilization Code in the predicate notices; or, alternatively,(4) under CPLR R 3211(a)(1) and (a)(7) due to Petitioner's reliance on a 30-day termination notice rather than a 90-day termination notice as required by RPL § 226-c(2)(d) based on the length of Respondent's tenancy; and(5) under CPLR R 3211(a)(7) as the proceeding is based on incomplete, ambiguous, and contradictory predicate notices attached to the 30-day termination notice: the "Preliminary Notice" is missing page 2 and otherwise is unclear as to what terms of the occupancy agreement Respondent is accused of breaching; the "Final Notice" is unclear about the grounds for termination and also states both that Respondent was told by program staff that they would "not be moving forward with issuing the final intent as [he] complied with the terms of the agreement with the exception of relocating" and that he was being terminated from the program because of an additional complaint.

In a supporting affidavit Respondent states he has resided in this apartment since 2017; he is disabled and was formerly homeless; he moved in as part of a "permanent supportive housing program" run by Petitioner; he stopped playing loud music and smoking in the building after his case manager told him in January 2023 that there "were issues" with him doing these things; that he was confused by things his case manager and other case managers told him in subsequent conversations about the reasons he was being terminated from the program; and he does not think he should be terminated from the program.

Petitioner opposes, making the following arguments in response to Respondent's five claims: (1) as explained in an affidavit by Petitioner's Program Director, Petitioner need not comply with 14 NYCRR § 595 as Respondent was not in a "licensed" OMH program but rather, prior to his discharge, was in Petitioner's "Manhattan Harlem Supportive Housing program" which is not licensed by OMH; (2) and (3) it is Petitioner who is the Rent Stabilized tenant, not Respondent, who is Petitioner's sub-tenant; (4) the notice provisions of RPL § 226-c do not apply as Respondent is a "tenant at will" under RPL § 228 which requires only a 30-day termination notice; and (5) the 30-day notice contains a sufficient statement of good cause for termination and the requirements Respondent failed to comply with. Petitioner's papers include a partial copy of a "Supported Apartment Program Occupancy Agreement" [Exhibit D/NYSCEF Doc. #30] for an initial term beginning January 1, 2022. Near the bottom of page 6 is a section entitled, "Involuntary Termination of the Residency."

Petitioner also cross-moves to amend the petition, arguing first that it is permitted to do so as of right as Respondent has not yet filed an answer and second that such leave should, in [*4]any event, be "freely granted" pursuant to CPLR § 3025(b). The amendment Petitioner seeks to make is to paragraph 8 of the petition, which incorrectly refers to a contract between Petitioner and the New York City Department of Health and Mental Hygiene; the agency Petitioner has a contract with, and which it seeks to correctly identify in the proposed amended petition, is the New York State Office of Mental Health. The proposed amended petition substitutes the following for the last sentence of paragraph 8 in the original petition: "The premises is subject to an unlicensed level 1 supportive housing program, through a contract with the New York State Office of Mental Health. Respondent was, prior to his discharge from the program in the Manhattan Harlem Supportive Apartment Program."

On reply Respondent argues that dismissal is warranted because of the incompleteness of the notices attached to the 30-day notice, one of which appears to be missing a page, citing to Acmh Inc v Alvarez (2022 NYLJ LEXIS 1238 [Civ Ct NY Co 2022]), and because the notices fail to meet the enhanced due process requirements that apply because of the government's involvement with this supportive housing program, citing to 512 E 11th St HDFC v Grimmet (181 AD2d 488, 581 NYS2d 24 [1st Dep't 1992]) and 330 S Third St, HDFC v Bitar (28 Misc 3d 51, 906 NYS2d 839 [App Term 2nd Dep't 2010]). Respondent argues that the notices are deficient for other reasons as well: that neighbors had made threats on his life is not a permissible reason for terminating his tenancy; the notices fail to specify the type of program Respondent was in and whether it was licensed or unlicensed; and the notices fail to include the terms of the occupancy agreement that Respondent violated.

Respondent reiterates and elaborates on his arguments that he is a Rent Stabilized tenant entitled to all of the protections of the Rent Stabilization Law and Code. Alternatively, Respondent argues he is not a "tenant at will" subject to RPL § 228 because Petitioner charged him a monthly rent and provided him with a series of new occupancy agreements, pointing to the one Petitioner provided beginning January 1, 2022 [Exhibit D/NYSCEF Doc. #30] and to another one [Exhibit F/NYSCEF Doc. #34] beginning in January 2023, thereby "implying that each one is for a specific term", Resp's Attorney's Affirm. in Opposition and Reply at ¶ 49. Based on the length of his tenancy which he asserts dates back to 2017 he was entitled either to a 90-day termination notice under RPL § 226-c(2)(d) or, alternatively because his agreements with Petitioner did not specify a duration, his tenancy should be found to fall under RPL § 232 and "be deemed to continue until the first day of October next after the possession commences under the agreement."

In opposition to Petitioner's motion to amend the petition Respondent argues that the proposed changes are substantial and prejudicial and should not be permitted. Whereas Petitioner describes the proposed amendment as a correction to a misstatement of what agency Petitioner has a contract with (the New York State Office of Mental Health, as opposed to the New York City Department of Health and Mental Hygiene), Respondent points out that in fact the proposed amendment goes further than that as it also includes the statements that "The premises is subject to an unlicensed level 1 supportive housing program," and "Respondent was, prior to his discharge from the program in the Manhattan Harlem Supportive Apartment Program." Respondent argues that Petitioner had an obligation to accurately and fully describe what type of supportive housing program this is, especially given that Petitioner itself highlights the fundamental distinction between a licensed and unlicensed supportive housing program, asserting that the latter is not subject to State regulations. Respondent argues that even if the amendment to the petition is permitted, the petition should be dismissed because all of [*5]Respondent's arguments apply equally to the amended petition as to the original petition.

On reply, Petitioner argues that Respondent has shown no prejudice that would be caused by the proposed amendment, no "venal motive" due to the mispleading of the regulatory status or dispute over Petitioner's assertion that Respondent was in a "Level 1 unlicensed Manhattan Harlem Supportive Housing Program". Petitioner also argues that RPL § 232 does not apply here, as that section applies to oral contracts only and the parties here had a written contract, albeit one with an indeterminate length subject to "the happening of certain conditional events." Pet's Attorney's Reply Affirm. at ¶ 7.

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]); M & E 73-75, LLC v 57 Fusion LLC (189 AD3d 1, 5, 128 NYS3d 200, 204 [1st Dep't 2020]). 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. 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]). A motion seeking dismissal under CPLR R 3211(a)(1) on the ground that the action is barred by documentary evidence, "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Goshen v Mut Life Ins Co (98 NY2d 314, 326, 746 NYS2d 858, 865, 774 NE2d 1190, 1197 [2002]).

Here, as an initial matter, Respondent's residency in the apartment is not subject to Rent Stabilization and Petitioner's termination notice was not required to cite a ground for eviction under the Rent Stabilization Code. It is undisputed that the apartment's prime tenant and lease holder is Petitioner, as confirmed by the DHCR Rent Registration History [Resp's Exhibit C/NYSCEF Doc # 20]. Thus, while as between the owner of the building and Petitioner the apartment is Rent Stabilized, as between Petitioner and Respondent it is not. Under HSTPA Part J, it is Petitioner who has the rights of a Rent Stabilized tenant in this apartment, not Respondent who is Petitioner's subtenant through a supportive housing program. See, e.g., St Nick's All, LLC v Cordero (2024 NY Slip Op 24089 [Civ Ct Kings Co March 20, 2024]).

HSTPA did not repeal or amend the long-standing "nonprimary residence" exception from Rent Stabilization under Section 26-504(a)(1)(f) of the New York City Rent Stabilization Law of 1969 and Section 5(a)(11) of the New York State Emergency Tenant Protection Act of 1974 (ETPA). What HSTPA did accomplish regarding this exception is to make it clear that where the prime tenant is a nonprofit provider of supportive housing, such as Petitioner herein, a subtenant who participates in that supportive housing program is deemed to be the tenant whose primary residence in the apartment permits the nonprofit organization to avoid losing Rent Stabilization rights under the "nonprimary residence" exception. This court analyzed this issue in Jericho Project v Marte-Travera (67 Misc 3d 1204[A], 126 NYS3d 314 [Civ Ct Bx Co 2020]), and arrived at the same conclusion as did the court in St Nick's All, LLC v Cordero, supra.

In Jericho Project v Marte-Travera the respondent had similarly argued that a supportive housing resident must be deemed to be a Rent Stabilized tenant under HSTPA, L 2019, ch 36, as amended by the New York State Legislature's "clean up" bill, L 2019, ch 39, Part Q, § 17. Part J of HSTPA relates to "not-for-profits' use of certain residential dwellings", Bill Summary, and, along with the "clean-up" bill, is comprised solely of amendments to three subsections of Section 5(a) of the ETPA. The ETPA, which dovetails with the New York City Rent Stabilization Law, broadly provides "for the regulation of all housing accommodations which it does not expressly except, including previously unregulated accommodations." Salvati v Eimicke (72 NY2d 784, 791, 533 NE2d 1045, 1047, 537 NYS2d 16, 19 [1988]). The exceptions - that is, the exemptions from regulation - are listed in ETPA § 5(a), with the caveat that some of those exemptions themselves contain their own exceptions which are, accordingly, regulated.

HSTPA amends three of the ETPA § 5(a) exemptions, two of which [FN1] are relevant to the "scattered site" housing at issue in this proceeding:

• ETPA § 5(a)(6) - this exemption is for "housing accommodations owned or operated" by certain types of non-profit organizations, with two categories of exceptions to this rule, the second of which was added by HSTPA for, "permanent housing accommodations with government contracted services . . .to vulnerable individuals or individuals with disabilities who are or were homeless or at risk of homelessness."• ETPA § 5(a)(11)—as noted above, this is the exemption for housing accommodations not occupied by the tenant of record as their primary residence; HSTPA adds a sentence that provides, "[f]or the purposes of this paragraph, where a housing accommodation is rented to a not-for-profit for providing . . . permanent housing to individuals who are or were homeless or at risk of homelessness, affiliated subtenants authorized to use such accommodations by such not-for-profit shall be deemed to be tenants."

In other words, subsection (6) codifies Rent Stabilization protection to leaseholders who are nonprofit organizations like Petitioner and subsection (11) clarifies that where the tenant of record is a nonprofit organization providing housing to certain types of individuals, it is those individuals who are "deemed to be tenants" for the purpose of determining if the tenant of record (that is, the nonprofit organization) is occupying the apartment as its primary residence, thereby permitting the nonprofit organization to avoid eviction under the "nonprimary residence" exemption from Rent Stabilization. These sections do not create Rent Stabilization rights for subtenants who participate in programs run by the nonprofit organizations who lease those apartments for the purpose of providing supportive housing to vulnerable individuals.

Next is the question of whether Petitioner is required to comply with the regulations of the New York State Office of Mental Health (OMH), including those governing "Discharge [*6]Planning and Procedures," 14 NYCRR § 595.15. While the Petition states that the premises is "subject to a supportive housing program" through a government contract,[FN2] in its opposition papers Petitioner's Program Director asserts that OMH regulations do not apply here because the program Respondent was in prior to his discharge—the "Manhattan Harlem Supportive Housing Program", referenced in Petitioner's "Preliminary" and "Final" notices to Respondent, described above - was not a "licensed" OMH program. While Respondent has included a copy of Petitioner's contract with OMH as an exhibit to his motion [Exhibit B/NYSCEF Doc. #19], without more, it cannot be determined whether in fact the "Manhattan Harlem Supportive Housing Program" is covered by that contract and, if it is, whether it is a "licensed" OMH program subject to State regulations. The papers before the court present issues of fact as to what procedures were required before Petitioner was permitted to terminate Respondent's tenancy and whether Petitioner complied with them. See, e.g., 2601-2609 Bainbridge Ave LLC v Algernon (2024 NY Slip Op 50253[U], ¶ 3 [Civ Ct Bx Co 2024]).

Respondent's arguments that he is entitled either under RPL § 226-c to a 90-day notice of termination because his tenancy exceeded two years or under RPL § 232 to be treated as a tenant whose term continues "until the first day of October next after the possession commences under the agreement" because his occupancy agreement did not specify the duration of the contractual period are misplaced. Petitioner brought this proceeding under RPL § 228, under which a "tenancy at will or by sufferance, however created, may be terminated by a written notice of not less than thirty days". Petitioner alleges that Respondent is a "sub-tenant" whose "sub-tenancy at will" was terminated by a 30-day notice under RPL § 228 and pursuant to the terms of Respondent's "Supported Apartment Program Occupancy Agreement". A tenancy at will has been described as follows: "When one enters upon land by permission of the owner for an indefinite period, even without the reservation of any rent, he is by implication of law a tenant at will." Larned v Hudson (60 NY 102, 104 [1875]). See also 2601-2609 Bainbridge Ave LLC v Algernon (82 Misc 3d 1208[A][Civ Ct Bx Co 2024]) (denying summary judgment in a licensee proceeding where respondent raised "tenancy at sufferance" as a defense, noting that, "A tenancy at sufferance exists when a person who had a possessory interest wrongfully continues in possession of the land after the termination of said interest"). While the acceptance of rent on a monthly basis creates, at a minimum, a monthly tenancy, Stauber v Antelo (163 AD2d 246, 248, 558 NYS2d 67, 69 [1st Dep't 1990]), it could become a "tenancy at will", depending on the other facts and terms of the parties' agreement. See Donnelly v Neumann (170 AD3d 597, 598, 97 NYS3d 26, 28 [1st Dep't 2019]). Parties are free to chart their own court in litigation, Mitchell v NY Hosp (61 NY2d 208, 214, 473 NYS2d 148, 151, 461 NE2d 285, 288 [1984]), and Petitioner is permitted to proceed on its "sub-tenancy at will" theory, as opposed to a different theory suggested by Respondent. Whether Petitioner can prove its theory at trial is a question that is not before the court on this motion to dismiss.

The last question raised by Respondent's motion to dismiss is whether Petitioner's 30-day notice of termination is sufficient on its face to allow this matter to proceed. New York State courts evaluate the sufficiency of predicate notices based on a standard of reasonableness "in [*7]view of all attendant circumstances". Oxford Towers Co, LLC v Leites (41 AD3d 144, 837 NYS2d 131 [1st Dep't 2007]); Avon Bard Co. v Aquarian Found (260 AD2d 207, 210, 688 NYS2d 514, 517 [1st Dep't], app dism'd, 93 NY2d 998, 717 NE2d 1080, 695 NYS2d 743 [1999]); 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]). The notice 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 it is sufficient as a whole to advise the tenant of the claim. McGoldrick v DeCruz (195 Misc 2d 414, 758 NYS2d 756 [AT 1st Dep't 2003]).

Here, in view of all attendant circumstances, the 30-day notice and its attachments provide sufficient information for Respondent to frame a defense. They set the legal framework for this proceeding by describing Respondent as a "tenant at will" in an "unlicensed Supportive Housing Program" (specifically, the "Manhattan/ Harlem Supportive Housing Program") and referencing RPL § 228 and a "Supported Apartment Program Occupancy Agreement" with an "Involuntary Termination of Residency" provision. They also include detailed factual allegations of Respondent's conduct in violation of his Occupancy Agreement and steps taken by Petitioner and/or to be taken by Respondent to address that conduct and avoid termination.

The cases Respondent cites for the proposition that this proceeding should be dismissed as it is based on deficient notices are inapposite. In ACMH Inc v Alvarez (2022 NYLJ LEXIS 1238 [Civ Ct NY Co 2022]), where the petitioner, like Petitioner herein, was a supportive housing provider (although ACMH Inc. is a licensed supportive housing facility, not an unlicensed scattered-site program), there were no preliminary and final notices attached to the termination notice. In 512 E 11th St HDFC v Grimmet (181 AD2d 488, 581 NYS2d 24 [1st Dep't 1992]) and 157 W 123rd St Tenants Ass'n v Hickson (142 Misc 2d 984, 542 NYS2d 900 [App Term 1st Dep't 1989]), where, as here, there was government entwinement with the type of housing at issue, the predicate notices provided no reason at all for the termination of the tenancies. Here, the proceeding is based on a 30-day termination notice that references and includes copies of two prior notices as attachments (albeit one with a missing page), which, collectively, do state detailed reasons for the termination of the tenancy.

Finally, Petitioner's cross-motion to amend the petition is granted. Under CPLR R 3025(a), entitled "Amendments without leave", a party is permitted to amend their pleading "at any time before the period for responding to it expires". In a holdover proceeding, a respondent may answer, "at the time when the petition is to be heard," RPAPL § 743, and that time is extended upon adjournment of the proceeding unless a contrary arrangement has been made, see, e.g., City of New York v Candelario (156 Misc 2d 330, 601 NYS2d 371 [App Term 1993], affd in part, revd in part on other grounds, 223 AD2d 617, 637 NYS2d 311 [2nd Dep't 1996]), citing Gluck v Wiroslaw (113 Misc 2d 499, 449 NYS2d 567 [Civ Ct Kings Co 1982]); and Picken v Staley (2011 NY Misc LEXIS 5910, 2011 NY Slip Op 33237[U] [Civ Ct NY Co May 16, 2011]). Respondent's time to respond to the petition was extended by virtue of his pending pre-answer motion to dismiss which, in turn, extended Petitioner's time to amend its pleading as of right. See, e.g., AGA Ad Media, LLP v Moskowitz (2016 NY Slip Op 31661[U], ¶ 2 [Sup Ct NY Co 2016]), and cases cited therein.

Further, under CPLR R 3025(b), leave to amend a pleading "shall be freely given" absent prejudice and here no prejudice has been shown. The proposed amendment to paragraph 8 of the [*8]petition substitutes the correct government agency (State as opposed to City) with which Petitioner has a contract and adds the name and type of supportive housing program ("Manhattan Harlem Supportive Apartment Program" and "unlicensed level 1"). The name of the program and the fact that it is "unlicensed" were provided in the Preliminary and Final notices, incorporated by reference in paragraph 9 of the Petition, and while the additional reference to this being an "unlicensed level 1" supportive housing program may affect the nature of the process due Respondent prior to termination of his tenancy, this proceeding is in its early stages, Respondent is represented by counsel and Respondent will be given adequate time to file an answer, move for discovery if appropriate and otherwise prepare for trial.

CONCLUSION

For the reasons stated above, it is hereby ORDERED that: (1) Respondent's motion is denied; and (2) Petitioner's motion is granted, and the proposed Amended Petition is hereby deemed substituted for the original; and (3) Respondent shall file his Answer to the Amended Petition by May 24, 2024; and (4) this proceeding shall be restored to the Resolution Part C calendar for a pre-trial conference on June 28, 2024 at 9:30 a.m. This constitutes the Decision and Order of this Court, which is being uploaded on NYSCEF.

Dated: April 30, 2024
Bronx, New York
Diane E. Lutwak, HCJ Footnotes

Footnote 1:The third section, ETPA § 5(a)(10), is similar to subsection (6) except it exempts from Rent Stabilization housing accommodations in "buildings operated exclusively for charitable purposes on a non-profit basis" (emphasis added); as with subsection (6), HSTPA adds a new exception to the exemption where the building provides, "permanent housing accommodations with government contracted services...to vulnerable individuals or individuals with disabilities who are or were homeless or at risk of homelessness". This is not relevant here, where the nonprofit supportive housing program leases an apartment in a privately-owned building and then sub-leases it through a "scattered site" program.

Footnote 2:As noted above and discussed further below, the original Petition states that the contract is with the New York City Department of Health and Mental Hygiene and the proposed Amended Petition states that the contract is with the New York State Office of Mental Health.