INTRODUCTION

The petitioner, CBHS, operates a scatter-site supported housing program in Brooklyn, New York, which is tailored for single men and women, over the age of eighteen, who have Axis I mental health diagnosis. Supported Housing is designed "to ensure that individuals who are seriously and persistently mentally ill (SPMI) may exercise their right to choose where they are going to live, taking into consideration the recipient's functional skills, the range of affordable housing options available in the area under consideration, and the type and extent of services and resources that recipients require to maintain their residence with the community."^[FN1] [*2]

CBHS rents individual apartments in various buildings and participants in the program occupy the apartments with a roommate. Each participant must enter into an Agreement / Sublease with CBHS for a one year period, unless terminated sooner for default in compliance at which time CBHS may serve a 10 day Notice of Termination and commence an eviction proceeding. The monthly housing fee is 30% of the participant's monthly income regardless of the rent that CBHS pays to the landlord. Each participant is assigned a case manager who meets with them on a weekly basis.

Petitioner is the over-tenant licensor of the subject premises located at 307 Martense Street, Apt. 5B, Brooklyn, New York 11226 pursuant to a written lease with the owner of the premises, 307-323 Martense Realty, LLC. The respondent is the under-tenant-licensee residing in the subject premises. He is 53 years of age and suffers from major depression, an anxiety disorder and physical disabilities including kidney problems. He has resided in these premises since February 2002.

In or about May 2006, respondent was given a new sublease agreement for a one year term to commence May 1, 2006 and ending on April 30, 2007. On May 30, 2006, the respondent signed the agreement. However, at the end of the last printed paragraph (20. No Jury Trial - No Counterclaim - Attorneys Fees) the respondent wrote the following: "Michael Block does not agree to #

20 in this lease. Michael Block 5-30-06 ".

The petitioner refused to accept this altered sublease and considers the respondent a month to month tenant.

In 2004, prior to commencing the instant holdover proceeding, the petitioner commenced a summary proceeding based on the alleged problematic conduct of the respondent with respect to his roommates [L & T #

81822/04]. At that time respondent was represented by a guardian ad litem and consented to vacate the premises by November 30, 2004. Thereafter the Urban Justice Center ["UJC"], which is currently representing the respondent in the case at bar, made an application to vacate the stipulation and requested additional time for the respondent to vacate as the UJC claimed to be looking for suitable housing for him. On January 20, 2005, the court [Hoyos, J.] denied the application and vacated all stays. Although the petitioner was then allowed to go forward with an eviction, it opted to give the respondent another opportunity to rectify his conduct. As a result of the alleged continued conduct of the respondent the present proceeding was commenced with the service of a notice of termination dated December 21, 2006.

The respondent moves for dismissal of this proceeding or, in the alternative, leave to file an amended answer and for discovery. The petitioner seeks an order granting the petition, use and occupancy and striking the defenses and counterclaims.

The positions of the parties can be summed up as follows:

RESPONDENT: [*3]

The respondent argues that this proceeding should be dismissed, in the first instance, because the petitioner commenced two holdover proceedings against him simultaneously. The first proceeding [L & T #

56520/07] was commenced on February 1, 2007. This proceeding was commenced on February 22, 2007. On the first scheduled date for this proceeding, the petitioner withdrew the earlier commenced holdover proceeding. Both proceedings rely on the same predicate notice of termination dated December 21, 2006. Respondent claims, and petitioner concedes, that no new predicate notice was created for this proceeding and that he never received said notice.

The respondent maintains that the petitioner has no standing to commence this proceeding because it did not follow the requirements of the Social Services Law ["SSL"] § 461-h in that the petitioner: a) did not serve the proper parties; b) did not set forth specific reasons for termination; c) did not provide respondent with a list of free legal services, etc.; and d) did not serve a notice of a hearing or provide a hearing to the respondent. Thus, it is alleged that the respondent's tenancy was either not terminated or was terminated without due process.

The respondent claims that the petitioner commenced this proceeding prior to the termination of his residency agreement and that it is retaliatory in nature.

Finally, the respondent avers that his due process rights were violated due to government entwining with the petitioner, relying on 512 E 11 Street HDFC v. Grimmet, 181 AD2nd 488, 581 NYS2d 24 (AD 1st Dept., 1992). The respondent argues that the petitioner operates under the auspices of the OMH which funds the petitioner and, therefore, OMH must be contacted prior to the removal of residents from the program. Further, the petitioner must have good cause for the removal because the petitioner is, in effect, operating as a governmental agency. Since the petitioner is funded and supported by OMH public funds for the purpose of providing permanence in the treatment and housing for individuals with psychiatric disabilities, the respondent contends that a no-cause holdover without the required discharge planning violates due process.

Alternatively, the respondent seeks an order to file an amended answer and for discovery, including, but not limited to, seeking a copy of petitioner's contract with OMH ; all other documents of state and federal funding to establish a relationship with OMH; and all correspondence with OMH about the respondent; all leases and agreements with respondent; respondents records and correspondence and e-mails between the parties.

PETITIONER:

The petitioner cross-moves for a judgment in its favor, the granting of U & O amended to date, and for an order to strike the defenses in the event it is denied summary judgment.

At the outset, the petitioner emphatically states that it is not a for-profit corporation with funding from OMH. It further maintains that there is no written contract with OMH and it receives no federal funds. The petitioner states that it does not own any buildings or apartments. It subleases individual apartments to participants in its program who must share the apartment with a roommate. The monthly housing fee for the respondent is 30% of his monthly income, which in this case amounts to a $155 per month payment by the respondent, as of January 2007. The petitioner rents the room from the owner at a rate of $992.33 per month.

The mandates for the petitioner in the operation of its program are set forth in the NYS OMH Supported Housing Implementation Guidelines. The petitioner also has its own Manual [*4]which is consistent with the OMH Guidelines. All rooms, as noted above, require two roommates. As previously stated, the respondent has complained on many occasions of issues with his former roommates and petitioner made numerous efforts to resolve those issues in the past. After a resolution of a prior proceeding in 2004, wherein the respondent agreed to vacate the subject premises fell through, the petitioner decided to give the respondent another chance to abide by the programs rules and peacefully cohabit in his apartment with another roommate. Eventually, the problems re-occurred and the petitioner, once again, commenced a holdover proceeding. That proceeding [L & T #

05620/07] was followed by the commencement of this proceeding and the former was withdrawn due to a defective petition on the first court date of this matter. Petitioner argues that the use of the same predicate notice under these circumstances is not defective and does not vitiate this proceeding and that affirmative defenses 1-4 are without merit.

The petitioner contends that the SSL does not apply to supported housing program providers and that affirmative defenses 5-9 should be stricken. Petitioner states that it is not an "adult home" as defined in SSL § 2(25) nor a "residence for adults" as defined in SSL § 2(24) and is not certified by the NYS Department of Social Services. Petitioner asserts that Title 14 of the New York Codes Rules and Regulations [NYCRR] pertaining to OMH operation of residential programs for adults is inapplicable to the petitioner because it is not licensed pursuant to article 31 of the Mental Hygiene Law [MHL].

Petitioner further makes the point that the respondent has no privity with the landlord; that as far as petitioner is concerned, the material changes to the sublease agreement by the respondent was never accepted by the petitioner and, as such, there is no binding agreement between them; and that respondent has no property rights in the premises that are protected by the U.S. Constitution. Petitioner also argues that "because the fact that a corporation has a contract with a government agency does not rise to the level of state action sufficient to implicate rights protected under the Constitution..." (Notice of Cross Motion, Attorney Affirmation, ¶ 44)

Lastly, the petitioner refutes the respondent's defenses of retaliatory eviction and breach of the warranty of habitability. Petitioner states that there were no complaints to any governmental agency regarding the respondent's former roommates or rent impairing conditions; that the respondent withheld his rent money and also refused the petitioner access to his apartment to make repairs; and that the breach of warranty of habitability is not a defense to a holdover proceeding.

In deciding the motion and cross-motion the Court will discuss the three prevalent issues that the respondent has raised in defense of this proceeding: 1) whether a new predicate notice was required to commence this proceeding in lieu of utilizing the same notice of termination that initiated the prior holdover proceeding that was withdrawn on the first day this matter was noticed to be heard; 2) whether the petitioner's business is sufficiently entwined with governmental agencies that it is required to follow all governmental rules and regulations regarding the termination of the respondent's tenancy, service of notices and any necessary plans for discharge; and 3) whether the actions of the petitioner were retaliatory in nature.

PREDICATE NOTICE:

The thirty day notice of termination, dated December 21, 2006, which predicated the [*5]commencement of the prior holdover proceeding [L & T #

56520/07] was properly utilized in order to commence this holdover proceeding. Recognizing that the petition in the first proceeding was defective, the petitioner commenced this case and made it returnable on the same adjourned date of the then pending matter. On that date, March 13, 2007, the petitioner withdrew the prior proceeding "without prejudice" and the written withdrawal was "so ordered" by the court [Fitzpatrick, J.]. The respondent's position, that use of the same predicate notice from the discontinued proceeding in this matter is a basis for dismissal, is without merit based on the factual circumstances of this case. While it may be the general rule that predicate notices from one holdover proceeding may not be used in a subsequent holdover proceeding that is commenced after the termination, dismissal or discontinuance of the former proceeding, it is the timing of the commencement of the second proceeding that becomes the crucial factor to be considered. In Arol Development v.Goodie Brand Packing, 84 Misc 2d 493, 378 NYS2d 231, 233, the Appellate Term, First Department, stated:

In the fact pattern under review, that the first petition was discontinued by respondent because defective did not require that a second notice to quit be served. The first proceeding was attacked by appellant as a nullity; hence it may not now be asserted by appellant to bar the second (citation omitted). Moreover the second proceeding was brought promptly and within a reasonable time after the notice of termination was served. (Emphasis added)

In Arol the appellate court found it sufficient to use the same notice of termination if the subsequent proceeding was brought promptly and within a reasonable time, without specifically stating how much time is reasonable. Clearly, however, by commencing this proceeding prior to discontinuing the first proceeding, the issue of "reasonable time" requires no further inquiry. Citing Arol, id., the court in Atlantic Westerly Co. v. Cohen, NYLJ, 10/5/05, p.18, col.1 held:

The limited exception exists when a petitioner, prior to the termination of one proceeding, commences another proceeding on the same grounds; if the second proceeding is commenced prior to the termination of the first, it may be premised upon the notices used to support the first proceeding (citation omitted).

In accord is Hudson Waterfront Assoc.IV, LP v. MTP 59 St. LLC, NYLJ,8/10/05, p.25, col.2 (AT 1) and 808 West End Ave.LLC v. Pomeranz, NYLJ 1/10/07, p.23, col.1. In 808 West End Ave.LLC v. Pomeranz the court dealt with a dispute as to whether a second holdover proceeding using the same predicate notice was brought on the same day the first proceeding was discontinued or the next day. Relying on DiCara v. Cecere, NYLJ, 4/18/79, p.13, col.5 (AT 2) [not required to serve a second predicate notice where landlord commenced a second proceeding the very next day after the first was discontinued] and Voldstad v. Ashley, NYLJ, 11/27/89, p.26, col.6 (AT 1) [second notice not required since second proceeding was brought "shortly" after the first proceeding was dismissed], the court found that under either set of facts, the respondent "suffered little prejudice thereby" and denied the motion to dismiss.

This Court reaches the same conclusion and the motion to dismiss this proceeding on this ground is denied.

GOVERNMENT ENTWINEMENT

The respondent asserts that the petition must be dismissed because this proceeding [*6]violates his due process rights. Relying on the case of 512 East 11th Street HDFC v. Grimmet, 181 AD2d 488, 581 NYS2d 24, (AD 1st Dept.), the respondent argues that the petitioner, although a private entity, is acting as a governmental agent because of the funding that it receives and the guidelines it must follow, and, therefore, it is sufficiently "entwined" with the government to trigger the respondent's due process rights. In 512 East 11th Street HDFC v. Grimmet the city oversaw the petitioner's activities and operation, monitored its building management skills, set initial rents, approved subsequent rent increases and had to approve the commencement of holdover proceedings.

Thus, the city is so entwined' with the conduct of the program as to constitute significant and meaningful governmental participation, triggering constitutional due process guarantees (citation omitted). One of those guarantees is that a tenant is entitled to notice of the alleged cause for eviction and procedural due process in the determination of whether cause exists. Eviction *** requires a cause other than mere expiration of the lease' (citation omitted). Since the petitioner did not allege any cause for removal of the tenant, the petition was properly dismissed. Id. at 581 NYS2d 26 {181 AD2d 492}

While it has been held that tenants who sublease apartments from a state agency are entitled to a due process hearing when the state intends to refuse to renew their subleases, even when the state is a lessee and not the owner of the property, (see, Fuller v. Urstadt, 28 NY2d 315, 321 NYS2d 601),

such is not the case here. The petitioner here is not the state, and unlike the petitioner HDFC in Grimmet, supra , can lease premises, enter into subleases, etc., without prior government approval and the city does not retain " a right of reversion in the event the landlord fails to abide by the terms and conditions placed upon the property and its use." Id. at 581 NYS2d 25

The petitioner attests to the fact that it has no written contract with OMH, receives no federal funds and is not required to be or is licensed by any governmental agency. As stated in Metalsky v. Mercy Haven Inc., 156 Misc 2d 558, 566, 594 NYS2d 124, "[N]either extensive government funding nor regulation necessarily transforms the actions of a private entity into State action." The respondent must show that he has a constitutionally protected right or interest in his apartment to trigger due process. There is no landlord-tenant relationship between the landlord/owner of the subject premises and the respondent. The privity with the landlord is solely with that of the petitioner lessor, not the subtenant lessee. Therefore, the respondent has no property interest in the premises. (See, 757 East 169th Street HDFC v. Haney, 171 Misc 2d 965, 656 NYS2d 92 (Civ. Ct. 1992 [Heymann, J.] Any license he may have to the premises is provided to him pursuant to a sublease agreement which contains conditions that must be met in order to remain in the premises. At this juncture, the issue remains as to whether the respondent even has a binding agreement with the petitioner whereby he can assert any rights to remain in the subject premises. Unless the respondent can prove at trial that the "agreement" that he signed, and which petitioner claims it rejected, is in full force and effect, the Court finds that commencement of this proceeding as a licensee proceeding was appropriate and that petitioner did not have to demonstrate good cause. However, it would appear that if "good cause" was required the petitioner would have had no difficulty in setting forth its reasons for termination based on the prior correspondence between the parties and the respondent's negative history with [*7]the petitioner. The petitioner's affirmative representations that it is not an agent of the state and that there is currently no binding sublease agreement in effect between the parties, coupled with the respondent's failure to provide proof that he has a protected right or interest in the subject premises, warrants a finding that no Constitutional rights of due process have been violated. (See, Helping Out People Everywhere, aka HOPE, v. Deich, 155 Misc 2d 707, 589 NYS2d 744, aff'd 160 Misc 2d 1052, 615 NYS2d 215 (AT 2nd Dept.)

RETALIATORY EVICTION

Real Property Law ["RPL"] §223-b [Retaliation by landlord against tenant] sets forth the three protected acts by a tenant ^[FN3] for which a landlord is prohibited from commencing any summary proceeding to recover possession of real property in retaliation thereof:

a) a good faith complaint to a governmental agency of health or safety violations;

b) action taken to enforce rights under a lease or rental agreement; and

c) a tenant's participation in activities of a tenant's association.

RPL § 223-b.5. creates a rebuttable presumption that the landlord is acting in retaliation if a summary proceeding is commenced within six months after the tenant: a) makes a good faith complaint about health or safety violations to a government agency; b) commences a court or administrative proceeding to enforce rights; or c) received a judgment in his or her favor for retaliation in a prior action between the parties.

Notwithstanding a tenant's defense of retaliatory eviction, the statute does not relieve the tenant of the obligation to pay the rent for which the tenant is liable.

Applying the above requirements of this affirmative defense to the case at bar, it is clear that the respondent is not in a position to prevail on this issue. At the outset, there are no allegations or documentation that the respondent made any formal complaints to a governmental agency regarding the conditions in his apartment. Clearly, complaints about his roommates, which, according to the petitioner, required them to make five different changes of roommates to accommodate the respondent, is not a rent impairing condition or one that falls within any of the categories that characterize retaliation by the landlord. As to complaints about habitable conditions, the petitioner claims that access to do repairs was denied. At this point it should be noted that although complaints to a governmental agency or commencement of a proceeding by the tenant regarding a breach of the warranty of habitability under RPL § 235 is a protected act, breach of the warranty of habitability is not an affirmative defense to a holdover proceeding.

In addition, as acknowledged by the respondent himself, he withheld his rent which is in direct contravention to the statute seeking such relief. (See, Reeves v. Steen, 117 Misc 2d 851 [court held that the defense of retaliatory eviction is equitable in nature and the mere assertion of the rights does not relieve one of responsibility (to pay the rent)])

The CBHS Rules and Regulations Manual (Resp. Motion, Ex. G) on page 8 [Resident Grievance Policy and Procedure] states in part:

CBHS will not tolerate retaliation against or unfair treatment of any resident(s) who use the grievance procedure. The procedure should not be construed, however, in any way as preventing, limiting, or delaying CBHS from taking action against any resident(s), up to and [*8]including discharge, relocation, and/or eviction, in circumstances where CBHS deems such action appropriate.

The participants are directed to follow the four (4) steps set forth on page 9 of the Manual "if you have a complaint, problem or question on program policy or procedure." There is no statement in the respondent's affidavit that he followed these established guidelines in making his complaints.

With respect to the respondent's claim that he could "repair and deduct" the cost of repairs for a broken lock, he was told, in no uncertain terms, that he could not do so and that petitioner would not accept any payments for rent unless made in full. Instead, respondent states he has "all the accrued rent money since that time [November 2006] (including all of November) available in a bank account."

(Resp. Affidavit, ¶ 8) Therefore, not only did the respondent retain the cost for the lock, but his entire rent as well, which, as stated above, is specifically proscribed by RPL § 223-b.

It is the opinion of the Court that the affirmative defense of retaliatory eviction has no merit in this matter.

Regarding the respondent's request for discovery, the Court finds that it is overly broad and that based on the representations of the petitioner that there are no contracts with OMH or federal funds given to the petitioner there is nothing more that need be discovered in addition to all the documents already provided. Regarding correspondence between the respondent and petitioner, including e-mails, these items are not in the exclusive possession and control of the petitioner and respondent should have retained his own copies. Therefore, the branch of the motion seeking discovery is denied.

Based on the foregoing, the respondent's motion to dismiss this proceeding is denied, discovery is denied and leave to file an amended answer is granted solely as to the general denial and the Fifth Affirmative Defense - Termination Within the Lease Period, as there is still the open issue as to whether or not there is any binding agreement between the parties. All the remaining affirmative defenses and counterclaims are stricken for the reasons enunciated in the body of this decision.

Regarding the petitioner's cross-motion, summary judgment is denied, the respondent's affirmative defenses are stricken in accordance with the preceding paragraph, and the issue of use and occupancy is to be determined by the trial court.

This matter was previously adjourned to January 9, 2008 in Part C at 9:30 A.M. at which time it will be referred to the Expediter for assignment to a trial part.

This constitutes the Decision and Order of the Court.

Dated: January 4, 2008_______________________________

GEORGE M. HEYMANN, J.H.C.