[*1]
New York City Hous. Auth. v McNeil
2007 NY Slip Op 52208(U) [17 Misc 3d 1130(A)]
Decided on August 6, 2007
Civil Court Of The City Of New York, Kings County
Stanley, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2007
Civil Court of the City of New York, Kings County


New York City Housing Authority Brevoort Houses, Petitioner(s),

against

Paulette McNeil, Respondent(s).




L & T 17450/06



Petitioner represented by:

Raquel Miranda, Esq.

Respondent represented by:

Jonathan Roller, Esq.

John Henry Stanley, J.

Respondent moves to dismiss this holdover proceeding. After multiple adjournments in Part A the matter was transferred to Part EX for a hearing on waiver. During the initial conference in Trial Part S, respondent requested an adjournment until April 17, 2007 to move for dismissal upon submission of papers. The background of the case follows.

Respondent works as a teaching assistant for the New York City Board of Education. She is a single mother of two children. She and her family have lived in Brevoort Houses in Brooklyn, a part of the New York City Housing Authority ("NYCHA") since 2001. The monthly rent is $619.00.

Subsequent to an administrative hearing wherein an impartial hearing officer found that respondent was chronically late in paying rent from August 2003 through July 2004, the NYCHA board approved a Disposition of Termination on September 22, 2004. Five months after issuance of the Disposition of Termination, NYCHA acted upon the Certificate of Eviction by serving Ms. [*2]McNeil on February 11, 2005 with a Thirty Day Notice to Vacate the premises by March 31, 2005. The notice incorporated the September 22, 2004 administrative termination, a copy of which was attached and specifically integrated into the notice to vacate. A holdover petition was served under L & T Index No.16904/2005. On the return date of July 25, 2005 the proceeding was discontinued that same day by a stipulation that stated that the reason for dismissal was "defective service."

Immediately following the discontinuance of the holdover proceeding, NYCHA commenced a non-payment proceeding under L & T No. 19648/2005. Respondent answered the Non-Payment Petition and on the first court date of October 17, 2005 the proceeding was adjourned by stipulation until November 22, 2005. The stipulation stated:

Respondent to meet with management about rent dispute on 10/21/05, 3:15 pm. Respondent disputed rent amount.

The NYCHA representative who signed this agreement in court was Clara Moore Greene. Ms. Greene also signed respondent's Thirty Day Notice to Vacate in the recently discontinued holdover proceeding. On November 22, 2005, respondent failed to appear and NYCHA obtained a money judgment in the amount of $1,080.18. The warrant was to issue forthwith with execution stayed five days. The warrant never issued and respondent moved by order to show cause to vacate her default. On December 15, the prior judgment was vacated and the proceeding discontinued.

On April 19, 2006, one year and eight months (Court emphasis) after NYCHA obtained the Disposition of Termination, NYCHA served a second Thirty Day Notice to Vacate with a vacate date of May 31, 2006. This notice was identical to the prior notice except that the vacate date was exactly one year and two months later. A copy of the same September 22, 2004 administrative termination which was the basis of the prior holdover proceeding was attached and specifically incorporated into the Notice to Vacate.

The respondent moves to dismiss the petition on the grounds that petitioner's actions in commencing a non-payment proceeding after discontinuance of the first holdover proceeding vitiated the administrative determination of termination by waiver. Petitioner objects and counters that any delay by NYCHA to commence the holdover proceeding did not vitiate the administrative finding of termination because NYCHA is a municipal agency acting in a governmental capacity and is exempt from waiver.

It is clear under the law that NYCHA cannot waive governmental regulations (New York Housing Authority v. Skyes, 117 Misc 2d 293, 475 NYS2d 680 (NY Civ Ct, Kings Co 1982)). Consequently, this court lacks the power to look behind the administrative determination (New York Housing Authority v. Bernstein, 1 Misc 2d 84). However, this court has the authority to review the adequacy of predicate notices (Homestead Equities Inc v. Washington, 176 Misc 2d 459, 672 NYS2d 980; Chinatown Apts.v. Chu Cho Lam, 51 NY2d 786, 433 NYS2d 86). The administrative determination followed by the Thirty Day Notice to Vacate by March 31, 2005 gave respondent notice that her tenancy was terminated (NYCHA v. Aviles,6/25/92 NYLJ 25 (col 4) AT 1s)t. If respondent did not vacate then NYCHA must commence a holdover proceeding seeking [*3]possession of the premises.

NYCHA places great emphasis on its incorporation and attachment of the administrative Determination of Termination to the Thirty Day Notice to Vacate. The notice provisions of both the February 2005 and the April 2006 Notice to Vacate are identical. Both the notices state:



The reason your tenancy is being terminated is that a decision and disposition of termination was entered by the Impartial Hearing Officer on September 1, 2004. This was adopted by the Member of the Board of the New York City Housing Authority, who by Determination of Status for Continued Occupancy dated September 22, 2004, determined that you are ineligible for continued occupancy. A copy of the Determination of Status for Continued Occupancy is annexed hereto.

A notice served as the basis of a prior holdover proceeding cannot then again be recycled a second time as the basis of a subsequent holdover proceeding. It cannot be revived to support the case at bar (Kaycee West 113th Street Corp v. Diakoff, 160 AD2d 573, 554 NYS2d 216). The law is clear that the predicate notice does not survive dismissal of the original holdover proceeding (Katzman v City of New York, 11/18/99 NYLJ 29 (col 5)AT 1st; 20 Mott Place Corp v. Maldonado, 9/30/92 NYLJ 27 (col 1) AT 2 & 11; Nicolaides v Division of Housing and Community Renewal, 231 AD2d 723, 647 NYS2d 866 (2nd Dept. 1996)). In Nicolaides, the first petition was dismissed without prejudice, however when petitioner commenced a second proceeding using the prior predicate notice, the Appellate Division determined that dismissal of the earlier proceeding terminated the entire matter, including the notice of non-renewal. There is an exception if the second proceeding is commenced prior to the termination of the first. These are not the facts in this proceeding. Here, the second proceeding was commenced a non-payment proceeding rather than a holdover proceeding. One year and two months later, NYCHA then used the exact same predicate notice of the prior holdover proceeding as the basis for the instant proceeding. This court determines that NYCHA may not commence a new proceeding based on the same facts as the prior predicate notice of a previously discontinued holdover proceeding.

NYCHA's actions subsequent to the dismissal of the first holdover proceeding are intrinsically inconsistent with the Disposition of Termination. The premise of the 2005 holdover proceeding was that respondent's tenancy was terminated pursuant to the Disposition of Termination. The relief sought was possession of the premises. The rationale of the subsequent non-payment proceeding was that there was a landlord-tenant relationship and the relief sought was payment of rent arrears.

Acceptance of rent after the expiration of the notice, as in this case, reinstates the tenancy by operation of law (Mannino v. Figueroa 11/22/95 NYLJ 31 (col 1)). Respondent here was left with a reasonable impression that a landlord-tenant relationship was reinstated (Albanese v. Wilson, 1/3/2007 NYLJ 22, (col 1)). Was she to pay rent or to move? A respondent is entitled to unequivocal notices from their landlord concerning their intended actions (Siegel v Kentucky Fried Chicken, 108 Ad2d 218, aff'd. 67 NY2d 792 (1986)). The Court of Appeals has held "When rent is accepted with knowledge of particular conduct which is claimed to be a default, the acceptance of such rent constitutes a waiver by the landlord of the default" (Atkins Waste Materials, Inc v. May [*4]34 NY2d 422, 358 NYS2d 129). This court adopts the reasoning of Judge Fleury that "[i]t was not intended that the 30 day notice could hang like the sword of Damocles over the head of the tenant, to be used at some future date at the whim of the landlord" (Colavolpe v. Williams, 77 Misc 2d 430, 431, 354 NYS2d 309, (Civ Ct Kings Co, 1974)). Indeed, the tenant is entitled to know that there was finality in the prior action.

The fact that the same notice to terminate was used a second time after the first holdover proceeding was discontinued compounded by the commencement of a non-payment proceeding prior to commencement of a second holdover proceeding is fatal. Accordingly, the proceeding is dismissed. This constitutes the decision and order of the court.

Dated: Brooklyn, NY__________________________________________

August 6, 2007John Henry Stanley

Judge, Housing Part/ Civil Court