Friday, June 20, 2014


As a follow up on yesterday's blog post, one recent approach used by a court in a landlord/tenant action in which landlord claimed a nuisance by virtue of the domestic violence disputes between tenant and her boyfriend can be found in:

WESTCHESTER GARDENS, LP v. Lanclos, 2014 NY Slip Op 24062 - NY: City Court, Civil Court March 17, 2014

"Applying these legal principles to the matter at bar, Tenant has demonstrated that the Petition contains fundamental misstatements and omissions as to the regulatory status of the subject Premises. Other than stating that the Premises are subject to the "Rent Stabilization Law," the Petition fails to mention any of the other Federal, State and local regulatory schemes governing the same, which according to the Automated City Register Information System of the NYC Department of Finance (ACRIS) and the Lease, include the CFR rules and regulations governing the Shelter+Care Program of which Tenant belongs (see 24 CFR 582.300), as well as two additional regulatory agreements and related amendments with New York City, and the Low Income Housing Credit regulations. Landlord's failure to particularly allege the existence of these contracts, rules and regulations appears fatal to this proceeding because neither Tenant nor the Court were put on notice of the laws governing the tenancy or the substantive rights involved (see City of New York v Valera, 216 AD2d 237, 237-238 [1995]). The CFR and City contracts provided Tenant with certain potential defenses, and "Civil Court could not have properly adjudicated this proceeding without that contract" (id.; see Villas of Forest Hills v Lumberger, 128 AD2d 701, 702 [1987]; see also MSG Pomp Corp. v Doe, 185 AD2d at 799-800). Similar to the reasons given for the dismissal of the Petition in Matter of Volunteers of Am.-Greater NY, Inc. v Almonte (65 AD3d at 1155), the instant Premises are also part of a federally subsidized program and subject to governmental contracts which Landlord neglected to specify.

Not only is the Premises' regulatory status required, but Landlord must also show its compliance with the applicable rent laws and regulations over the tenancy. As evidenced by the contracts between the City and Landlord, the City is sufficiently "entwined" with the subject Premises so as to constitute significant and meaningful governmental participation, triggering constitutional Procedural Due Process guarantees (see Matter of Fuller v Urstadt, 28 NY2d 315, 318-319 [1971]; 512 E. 11th St. HDFC v Grimmet, 181 AD2d 488, 489 [1992], appeal dismissed 80 NY2d 892 [1992]). Specifically, CFR provides that tenants participating on the Shelter+Care Program should be "terminated only in the most severe cases," and only after a certain "formal process" complying with Due Process of Law (24 CFR 582.320[a, b]), given the last resort nature of this shelter program. This process must consist, at a minimum, of: (1) written notice to the tenant of the reasons for termination; (2) an independent review of the decision, wherein the tenant is given an opportunity to present written or oral objections, by a person other than the one who made the initial termination decision; and (3) a prompt written notice of the final decision (24 CFR 582.320[b][1-2]; see 512 E. 11th St. HDFC v Grimmet, 181 AD2d at 489). The Petition here does not allege that Landlord followed these CFR procedures prior to commencing the instant proceeding. Instead, Tenant's tenancy was undisputedly terminated via the January 2013 Notice of Termination without any additional Due Process. "Because equity abhors forfeitures of valuable leasehold interests, courts have required strict compliance with the termination provision of leases" (Jacobson v Raff, 30 Misc 3d 143[A], 2011 NY Slip Op 50323[U] [AT 2nd Dept 2011], quoting Metropolitan Transp. Auth. v Cosmopolitan Aviation Corp., 99 AD2d 767, 768 [1984]). Landlord is, therefore, in unambiguous breach of its agreements, rendering the Petition defective, and dismissal warranted for this reason as well."

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