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Plaintiff Files Motion to Dismiss

 

The petitioner/landlord, commenced this holdover proceeding to recover possession of the Section 8 leasehold premises from respondent/tenant, seeking to terminate the month-to-month tenancy. Tenant moves to dismiss the petition in lieu of answering upon grounds that the notice to terminate and petition are legally insufficient and that petitioner’s acceptance of rent after the notice to terminate was sent nullified the effect of the notice. Landlord opposes the motion to dismiss and maintains that it is untimely pursuant to Justice Court Act §1002.

The parties entered into a lease under the Section 8 Tenant Based Assistance Housing Choice Voucher Program, which was executed in October of 2003. Under paragraph 6 of Part A of the lease, the initial term ended on October 31, 2004, at which time the lease automatically renewed on a month-to-month basis. The lease provides that all notices made by owner or tenant must be in writing and makes no reference to landlord’s attorney or agent.

The litigants are known to this Court for more than a year as parties to several holdover and non-payment summary proceedings. In each prior proceeding, landlord’s counsel represented the petitioner landlord, and the respondent appeared pro se. Each prior proceeding was resolved and the tenancy continued.

In September and October of 2006, the Director of the Village of Ossining Section 8 Program sent letters to the landlord giving notice that the Section 8 Housing Assistance Payments would be suspended because the leased unit did not comply with the minimum Housing Quality Standards for the program. From the Section 8 Payment History List, payments to the landlord were suspended from November 1, 2006 through January 31, 2007. The Section 8 payments resumed on February 1, 2007, and continued thereafter.

The tenant sent a letter to the landlord on November 1, 2006 indicating her intention to vacate the premises in thirty days, and that she was looking for other premises in which to live. This letter was never sent to the Public Housing Agency. Once the thirty-day period expired, the tenant never moved from the premises. She continues to reside in the premises and the Section 8 payments to the landlord resumed on February 1, 2007.
By letter dated January 30, 2007, landlord’s attorney sent a letter to tenant terminating the month-to-month tenancy effective February 28, 2007. Landlord never provided the Public Housing Agency with a copy of the termination notice.

Landlord commenced this holdover proceeding by serving a Notice of Petition and Petition upon the tenant on March 28, 2007. The petition contains a demand that the answer be served at least three days before the petition is noticed to be heard. Neither the Notice of Petition nor the Petition alleges the regulatory status of the tenancy or compliance with applicable federal regulations. The parties adjourned the initial court date on consent from April 5, 2007 to April 23, 2007, at which time the tenant filed a motion to dismiss in lieu of answering.
The Court finds that the motion to dismiss is timely under CPLR §§404(a) and 3211(e). A motion to dismiss may be made even after the time to answer has expired. The abbreviated time period under Uniform Justice Court Act §1002(a) cited by landlord is inapplicable to the facts of this case, as it only applies to a motion to dismiss a pleading where no response is required. Moreover, under the circumstances presented here, by consenting to the adjournment without limitation, landlord waived any objection to the timeliness of the motion to dismiss.
The motion to dismiss was made on the adjourned date, eighteen days after the initial noticed date. Landlord consented to the adjournment and first raised the issue of timeliness in opposition to the tenant’s motion to dismiss. While jurisdictional defenses, such as the landlord’s failure to plead and comply with Section 8 federal regulations, may be waived by the tenant, there was no waiver here.

Under paragraph 6 of Part A of the lease, once the initial lease term expired, the lease automatically renewed on a month-to-month basis on the same terms as the original lease. Therefore, the lease provisions remain in effect and are binding upon the parties, except for the lease term, which is changed to a month-to-month tenancy. Termination of the tenancy by the owner is governed by paragraph 8 of Part B of the lease, as well as HUD requirements under 42 U.S.C. 1437f and 3535(d) and 24 C.F.R §982. Under paragraph 8(f)(1) and (2) of the lease and 24 C.F.R. §982.310(e), at or before the beginning of a court action to evict, “the owner must give the tenant a written notice that specifies the grounds for termination of the tenancy,” which notice must also be served upon the Public Housing Agency.

A valid notice of termination is a condition precedent to the commencement of a Section 8 eviction proceeding. Unlike defects in pleadings, “defects in the notice of termination may not be cured by amendment nunc pro tunc.” “It is essential that the PHA be given timely notice of the commencement of proceedings to terminate the tenancy, not only so that it does not continue to make housing subsidy payments on behalf of a tenant who is no longer in possession, but also to enable it 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.” “A landlord seeking to terminate a Section 8 tenancy must serve a copy of the termination notice (or equivalent notice) on the public housing authority at the same time that such notice is served on the tenant. Failure to do so is a jurisdictional defect which precludes the maintenance of a summary proceeding.”

Here, the landlord never provided the Public Housing Agency with a copy of the termination notice. Since federal regulations and the terms of the lease require such notice, the petition must be dismissed. Nor can the landlord rely upon the letter she received from the tenant on November 1, 2006 indicating her intention to vacate the premises in thirty days as a predicate for the holdover proceeding. Since the tenant never moved from the premises, and the Section 8 payments resumed, these actions signified her intention to remain in the premises. The tenant never terminated the lease and therefore, the landlord was required to commence a court action in order to evict.

Moreover, under 24 C.F.R. §982.309(c), the tenant is also obligated to provide the Public Housing Agency with a copy of any termination notice for the same reasons the landlord is so required. Since the tenant’s purported termination notice was never sent to the Public Housing Agency, it is also legally insufficient.

The tenant also objects to the sufficiency of the termination notice because it was signed by an attorney without proof of her authority to bind the landlord. Landlord urges the Court to consider the parties’ recent dealings before this Court, where the same attorney represented landlord in each prior termination proceeding against the pro se tenant, which dealings “established the tenant’s knowledge of and acquiescence in the agency.” Although this argument has appeal, the regulatory authority governing termination of Section 8 tenancies by the landlord requires the termination notice to be in writing directly from the landlord. 24 C.F.R. §982.310(e)(1)(i). This regulation is the overriding consideration for the Court in assessing the sufficiency of the termination notice in this Section 8 tenancy.

Even where a lease provision requires notices from the landlord personally, Courts have interpreted Siegel to require “proof of authority in a notice signed by the landlord’s attorney only if the attorney is a total stranger to the transaction or if the attorney is one with whom the tenant had never previously dealt.” While a tenant may be equitably estopped from raising an objection to the sufficiency of a predicate notice signed by the landlord’s attorney based upon their prior conduct even where a lease provision requires notice directly from the landlord, when a statute or regulation requires such notice, there can be no estoppel.

Real Property Law §232-b, which governs notification to terminate month-to-month tenancies outside the City of New York, has no prescribed form to terminate a tenancy. “The notice can be oral or written, and may be served personally or otherwise, all that is required is that the notice be timely, definite and unequivocal.” “The true test of the sufficiency of such notice is: Has the landlord or the tenant notified the other at least one month before the expiration of the term of his election to terminate. The evidence that establishes such notification could be any logically probative evidence.”

Although the notice sent here by the landlord’s attorney may be sufficient under Real Property Law §232-b, the tenancy is also governed by Section 8 federal rules and regulations and a corresponding written lease, which are much more restrictive in their notice requirements. Neither the Section 8 federal rules and regulations nor the written lease between the parties gives an attorney or agent authority to bind the landlord in matters relating to termination. Under the terms of the lease and 24 C.F.R. §982.310(e), the “owner must give the tenant a written notice that specifies the grounds for termination of tenancy during the term of the lease.” The regulation further states that “the tenancy does not terminate before the owner has given this notice.”

Where a regulatory statute governing notice speaks only of notice emanating from the “owner,” a termination notice signed by an attorney without accompanying proof of authority to bind the landlord in the giving of such notice is legally insufficient, even where the tenant had prior dealings with the landlord’s attorney. Accordingly, in the present case, the termination notice sent by landlord’s attorney unaccompanied by proof of her authority to bind the landlord was legally insufficient and the petition must be dismissed.

Here, the termination notice was sent on January 30, 2007, and the holdover proceeding was commenced on March 28, 2007. The Section 8 Payment History List indicates that although the payments were suspended from November 1, 2006 through January 31, 2007, they resumed on February 1, 2007 and continued thereafter. Section 8 housing assistance payments are considered rent and there is no indication that petitioner rejected these payments. Thus, by accepting these rental payments in between the time the notice was sent and the commencement of the holdover proceeding, petitioner nullified the effect of the notice, requiring dismissal of the petition.

Under the terms of the Section 8 lease between the parties and the governing federal rules and regulations, the notice to terminate is invalid because it was never provided to the Public Housing Agency (PHA) and was signed by an attorney without accompanying proof of her authority to bind the landlord in such matters. In addition, by accepting rent after the notice to terminate was sent, the landlord nullified the effect of the notice.

Accordingly, the court held that the respondent’s motion to dismiss is granted and the petition is dismissed.

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