Landlord and Tenant - Summary Proceedings - Applicability of Good Cause Eviction Law Amendments to RPAPL 741

RiseBoro/LEAP, Brooklyn (Karsin Williard of counsel), for Wen Jing Zheng, respondent.

Stonee Tsui Chi Yeung, P.C., New York City (Tsui Chi Yeung of counsel), for petitioners.

At controversy here is the effective date of certain portions of{**86 Misc 3d at 860} New York's Good Cause Eviction Law (hereinafter GCEL), which requires landlords to plead in the petition a "good cause" ground for a summary proceeding. Respondent here argues that the petition is fatally defective for failure to plead or mention any information regarding the GCEL. Petitioner in response argues that the pleading requirement did not go into effect until August 18, 2024, nine days after the proceeding commenced. For the reasons stated below, this court holds that while the petitioner filed the affidavit of service for the notice of petition and petition after the initial effective date of the law, the proceeding commenced before the new pleading requirements went into effect, and, in any event, petitioner has moved promptly to amend any possible defect. Thus, as further discussed below, the court denies respondent's motion to dismiss and grants petitioner's cross-motion to amend.

The petition in this summary holdover proceeding alleges that respondent(s) are month-to-month tenants who entered into possession of the subject premises in or about December 1998 and whose tenancy was terminated by way of a 90-day notice of termination dated September 8, 2023. (NY St Cts Elec Filing [NYSCEF] Doc No. 1.) The petition also alleged that the subject premises are not rent-stabilized as the building only consists of two units. (NYSCEF Doc No. 1.) It is undisputed that the petition lacks any information regarding the GCEL.

On or about October 1, 2024, respondent Wen Jing Zheng, the only appearing respondent (hereinafter respondent), retained RiseBoro/LEAP as his attorney. Respondent, through his counsel, filed the instant motion to dismiss pursuant to CPLR 3211 (a) (1) and (7) on the basis that petitioner failed to comply with the pleading requirements promulgated by the GCEL. (L 2024, ch 56, § 1, part HH.) In response, petitioner filed a cross-motion to amend the petition pursuant to CPLR 3025 to comply with the new pleading/notice requirements as required under the GCEL.

The procedural timeline regarding the commencement of the case is worth underscoring: Petitioner served a notice of termination dated September 8, 2023, with a vacate date of December 31, 2023; a petition was dated and verified on January 9, 2024; and petitioner filed an affidavit of service for the pleadings on August 9, 2024, which was after the initial effective date of the GCEL, but before the effective date other relevant portions of the law.{**86 Misc 3d at 861}

Good Cause Eviction Law

New York's GCEL was enacted on April 20, 2024. Subject to certain exceptions, this law limits landlords from recovering possession of certain categories of apartments or housing accommodations except for good cause as defined by Real Property Law § 216. (L 2024, ch 56, § 1, part HH, § 1.) The court begins with section 3 of the statute which adds [*2]section 231-c to the Real Property Law. (L 2024, ch 56, § 1, part HH, § 3.) Real Property Law § 231-c requires landlords "append to or incorporate into any . . . petition pursuant to section seven hundred forty one of the real property actions and proceedings law" (hereinafter RPAPL 741) the notice to tenants regarding, inter alia, information as to whether a specific unit is subject to the GCEL. (Real Property Law § 231-c [1].)

RPAPL 741, even before GCEL was enacted, governs the contents of a petition. Section 5 of the GCEL amends section 741 to add two new subdivisions, (5-a) and (5-b). (L 2024, ch 56, § 1, part HH, § 5.) In short, these new subdivisions require a landlord to "plead if the housing accommodation is subject to GCEL (see RPAPL 741), and in the case of covered units it must demonstrate a good cause ground for removal (see Real Property Law § 216)." (QN St. Albans Holdings LLC v Sands, 85 Misc 3d 275, 277 [Civ Ct, Queens County 2024].)

It is worth noting that part of the GCEL became effective immediately upon its passing on April 20, 2024, while a portion of the statute became effective on August 18, 2024, 120 days later. (L 2024, ch 56, § 1, part HH, § 7 [a].) The timing of when the statute went into effect is pertinent here as the GCEL applies to all cases commenced after April 20, 2024. For purposes of this motion, the court must answer when this proceeding commenced and whether it was subject to the new provisions under RPAPL 741 which govern the GCEL contents of the petition.

Commencement of the Proceeding and Effective Date of the Statute

Respondent avers that this proceeding commenced on August 9, 2024, when petitioner filed the affidavit of service for the notice of petition and petition. (NYSCEF Doc No. 7, line 18.) Respondent further argues that the new RPAPL 741 (5-a) and (5-b) went into effect on April 20, 2024. (NYSCEF Doc No. 7, line 16.) To start, this argument relies on the underlying notion{**86 Misc 3d at 862} that commencement is defined by service of the petition and notice of petition, not when they are filed, for jurisdiction is obtained upon service, not upon filing. (92 Bergenbrooklyn, LLC v Cisarano, 50 Misc 3d 21, 24-25 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

This court finds the argument unavailing. Respondent's definition of commencement is one that is used in the context of vitiation, i.e., the landlord's retention of a rent between the termination date in a predicate notice and a commencement of a holdover. (184 W. 10th Corp. v Westcott, 8 Misc 3d 132[A], 2005 NY Slip Op 51150[U] [App Term, 1st Dept 2005].)

Instead, this court finds the reasoning of QN St. Albans Holdings LLC v Sands compelling. (85 Misc 3d at 278.) The court in Sands stated that "commencement of an eviction proceeding for purposes of GCEL" is the date of filing and not the date of service. (Id.; see CCA 400 [1].) Although this court usually takes the position that "commencement" for purposes of vitiation is defined by service of the petition and notice of petition (Cisarano, 50 Misc 3d at 24-25), this does not apply when the alternative would impair rights petitioner possessed when it acted, vis-à-vis the filing of the petition, and increase petitioner's liability for past conduct, or impose new duties with respect to transactions already completed. (Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 365 [2020].) It is axiomatic that courts do not favor retroactive operation of legislation and will only construe a statute retroactively if the statutory language expressly or by necessary implication requires it (Matter of St. Clair Nation v City of New York, 14 NY3d 452, 456-457 [2010]), or if the Legislature's preference for retroactivity "plainly manifest[s]" the intention to do so. (Matter of Marino S., 100 NY2d 361, 370-371 [2003], cert denied 540 US 1059 [2003]; Matter of Regina Metro. Co., [*3]LLC, 35 NY3d at 365.) Here, nothing in the GCEL expresses a legislative intention for a retroactive operation of the statute.

The court finds petitioner's exhibit 2 to their cross-motion compelling insofar as the New York State legislation printout indicates that the new RPAPL 741 went into effect on August 18, 2024. (NYSCEF Doc No. 12.) To state otherwise and argue that this proceeding commenced in August, while the petition was verified in January, would invalidate properly filed papers after their preparation and would create a retroactive application of the GCEL absent any legislative intent to do so. (Matter{**86 Misc 3d at 863} of Regina Metro. Co., LLC, 35 NY3d at 370-371 [stating that "expression of intent must be sufficient to show that the legislature contemplated the retroactive impact on substantive rights and intended that extraordinary result"].)

In an attempt to reconcile any retroactive prejudice to petitioner, respondent cites to Doc Realty Mgt. Inc. v Morales, which stands for the proposition that the pleading requirements pursuant to RPAPL 741 became effective on April 20, 2024. (85 Misc 3d 389 [Civ Ct, Queens County 2024].) The court respectfully disagrees and takes the position that the effective date of RPAPL 741 (5-a) and (5-b) was in fact August 18, 2024, nine days after petitioner filed the affidavit of service for the pleadings. The facts in Morales are dissimilar to the case at bar as petitioner in that case did not move to amend the pleadings or "incorporate the information in the content of the petition." (Id. at 392.) Further, petitioner, here, has never asserted that the GCEL does not apply because the "termination notice ended the tenancy." (Id.) Instead, petitioner asserts in their proposed amended petition that they are a "small landlord who owns no more than ten (10) units," which would be one of the exemptions from the GCEL. (NYSCEF Doc No. 14, line 9; see Real Property Law § 214 [1].)

Additionally, the court notes, unlike the facts in Morales, that the petition in this proceeding was filed back in January 2024, prior to the enactment date and/or passage of any portion of the GCEL legislation. It is also worth noting that the first court date for this proceeding was on August 20, 2024, and was not assigned until April 10, 2024—a full three months after the petition was filed and still prior to the first effective date of the GCEL. Respondent seemingly now asks the court to require petitioner to include language in their petition in a case that was commenced months before GCEL was even passed by the New York State Legislature. To dismiss a proceeding on these grounds, especially when the first court date was given eight months after the petition was filed, would be highly prejudicial to petitioner. Simply put, to require petitioner to comply with the new RPAPL 741 (5-a) and (5-b), as amended, when all aspects^[FN*] of the petition predate the relevant effective date of the GCEL would create an unreasonable or absurd application of the law. (People v Schneider, 37 NY3d 187, 196 [2021].){**86 Misc 3d at 864}

Petitioner's Cross-Motion for Leave to Amend the Petition

In response to the instant motion, petitioner cross-moved to amend their petition to comply with RPAPL 741 (5-a) and (5-b). A party may seek leave to amend its pleadings at any time. (CPLR 3025 [b].) Permission to amend pleadings should be "freely given" absent prejudice or surprise resulting directly from the delay. (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983], quoting CPLR 3025 [b]; Lanpont v Savvas Cab Corp., 244 AD2d 208, 209 [1st Dept 1997] ["(I)n the absence of surprise or prejudice, it is an abuse of [*4]discretion, as a matter of law, for the trial court to deny leave to amend an answer during or even after trial"].)

Applying this framework to the case at bar, respondent has failed to convince the court of prejudice incurred by way of the amendment. Simply stating that amending the petition would be "fatal to this proceeding because neither the tenant nor the Court were put on notice of the laws governing the tenancy" without any specificity is not tantamount to a showing of prejudice. (NYSCEF Doc No. 15, line 9.) Further, petitioner filed their cross-motion on October 28, 2024, only 21 days after respondent's initial motion.

Given that petitioner has moved to amend their petition in an attempt to resolve all of the factual issues as a matter of law (Kolchins v Evolution Mkts., Inc., 31 NY3d 100, 106 [2018]) and that the court must deem the allegations of the petition as true and construe them in petitioner's favor, affording petitioner the benefit of "every favorable inference" (Cortlandt St. Recovery Corp. v Bonderman, 31 NY3d 30, 38 [2018]), this court finds that respondent has failed to meet its burden under both sections of CPLR 3211. Petitioner has, in fact, presented facts that fit a cognizable legal theory. (Kahlon v DeSantis, 182 AD3d 588 [2d Dept 2020]; Children's Magical Garden, Inc. v Norfolk St. Dev., LLC, 164 AD3d 73, 80 [1st Dept 2018].)

Accordingly, for the reasons stated above it is ordered that respondent's motion (seq 1) is denied in its entirety, without prejudice to a motion to amend their answer; it is further ordered petitioner's cross-motion (seq 2) is granted only to the extent of amending the petition and deeming it timely served and filed nunc pro tunc.