BACKGROUND

This summary holdover proceeding was commenced by SAUNDERS HOMES HDFC ("Petitioner"), and seeks to recover possession of Apartment 1 at 387 New Jersey Avenue, Brooklyn, New York, 11207 ("Subject Premises"), based on allegations that SUSAN LAMAR("Respondent") is a month-to-month tenant, with no ongoing right to possession of the subject premises. The petition purports to allege two other alternative basis for eviction under Title 28, Chapters 21 through 23 of the Rules and Regulations of the City of New York ("28 RCNY §21-23(d)") pursuant to 28 RCNY § 21-23 (d)(6) and 28 RCNY § 21-23 (d)(8).

The subject building was transferred to Petitioner by the City of New York pursuant to the Department of Housing Preservation and Development's "Neighborhood Homes Program". The Neighborhood Home Program ("NHP") is one of the programs included in the Division of Alternative Management Programs ("DAMP").

This is the second consecutive holdover proceeding commenced against Respondent by Petitioner. The first proceeding brought under Index No. 8933/06 was dismissed by the Court, and is further discussed below.

PROCEDURAL HISTORY

This proceeding first appeared on the court's calendar on November 21, 2007. On or about December 5th, 2007, Respondent's attorneys , The Legal Aid Society, Brooklyn Office for the Aging, filed an answer for Respondent, having previously appeared in this proceeding on her behalf. The Answer asserted a defense that the predicate notice was defective because it did not meet the statutory requirement that Respondent be provided with an offer to relocate to a substantially similar housing accommodation.

On or about December 27, 2007, Respondent moved for summary judgment pursuant to CPLR § 3212, and for an order dismissing the petition herein. Respondent alleges that dismissal [*2]is mandated because the predicate notice is defective, and Respondent has not been offered a substantially similar housing accommodation as required by statute. Petitioner opposes stating it is under no obligation to relocate Respondent, and that it has the right to terminate Respondent's tenancy by issuance of a thirty day notice in accordance with

RPL § 232a. Alternatively, Petitioner argues that if it were under an obligation to offer Respondent relocation to substantially similar housing, it has complied with said requirement.

FACTS

Respondent has lived in the subject premises since 1973. She is seventy-nine years old and disabled. Respondent alleges that she has difficulty walking, and uses both a walker and a wheelchair at times to get around. She states she can only go up or down a few stairs with assistance, and that she is not capable of walking up or down a flight of stairs. She states that she rarely leaves the subject premises.

Respondent lives on a fixed income of $476.34 per month, which is income from Social Security benefits and Supplemental Security Income.

Respondent alleges that around 1980, the subject building premises was abandoned by the previous owner, and New York City Department of Housing Preservation and Development ("HPD") took over management. Respondent paid rent to HPD through July 2006, at which time HPD advised Respondent that the subject building had been sold.

Respondent states that during the summer of 2006, she received phone calls from the new owners asking when she planned on moving.

On or about September 2006, Petitioner commenced a holdover proceeding against Respondent under Index No. 89833/06. The parties were both represented by the same attorneys as in the case at bar.

The prior proceeding was commenced by service of a thirty day notice which stated alternative relief for the proceeding either pursuant to 28 RCNY 21-23 or RPL § 232-a. Respondent filed a similar motion to the motion pending here, in the case at bar, and Judge Oymin Chin granted the motion and dismissed the proceeding by decision and order dated May 3, 2007. In the prior proceeding, Petitioner conceded that it had not served a notice to Respondent offering to relocate her, but argued that no such notice was required.

Petitioner argued that such a notice was only required if Petitioner was proceeding under 28 RCNY § 21-23(d)(6), and that a proceeding commenced under 28 RCNY § 21-23(d)(8) does not require such notice, and in fact that pursuant to 28 RCNY 21-23(d)(11), service of a 30 day notice terminating Respondent's monthly tenancy was all that was required under statute.

In granting Respondent's motion to dismiss the proceeding, Judge Chin held in pertinent part :

While respondent argues that the rules of statutory interpretation require the twenty day notice to be applied to all sections of the statute, the Court need not reach this issue. Petitioner's Thirty Day Notice of Termination is silent as to which section of 28 RCNY § 21-23 it is proceeding under. However, Petitioner does concede in its papers that it attempted to relocate the respondent, showing that it was attempting to comply with the requirements of the that (sic) Neighborhood Homes Program and 28 RCNY § 21-23(d)(6), but alleges that she refuse (sic) to cooperate. Having demonstrated its intent to comply with these provisions, petitioner cannot now claim it is proceeding under a different theory. Therefore, petitioner was required to serve a twenty day notice and its failure to do so is fatal to this proceeding.

(Footnote omitted). [*3]

RESPONDENT'S TENANCY IS NOT SUBJECT TO TERMINATION WITHOUT CAUSE

Petitioner's argument that it is entitled to terminate Respondent's tenancy without cause, based on the fact that she is a month-to-month tenant, pursuant to RPL §232a and 28 RCNY § 21-23(d)(11) is rejected by the Court, as without merit in law.

It is well established that where a governmental entity participates in the operation or control of a building in a significant manner, eviction requires a cause other than mere expiration of the tenancy. Volunteers of America-Greater New York, Inc. v. Almomte, 17 Misc 3d 57 (App. Term, 2nd Dept., 2007); 512 E. 11th St. HDFC v. Grimmet, 181 AD2d 488 (1st Dept., 1992); Hudsonview Terrace v. Maury, 100 Misc 2d 331 (App. Term, 1st Dept., 1979); Marcus Garvey Park Homes HDFC v. Franco, 12 Misc 3d 840 (2006).

Therefore, it is clear that no cause of action is stated against this Respondent based on RPL §232a, because Petitioner is required under law to set forth a basis for the termination of the tenancy and the underlying proceeding. The portion of the proceeding brought pursuant to 28 RCNY 21-23 (d)(11) and RPL §232a does not state a cause of action for termination, and those claims are dismissed with prejudice.

PETITIONER'S CLAIM PURSUANT TO 28 RCNY 21-23(D)(8)

Respondent argues that the requirement to relocate a tenant and serve a predicate notice offering such relocation found in 28 RCNY § 21-23(d)(6)(ii) should be interpreted to apply to all of the causes of action for eviction set forth under 28 RCNY § 21-23(d). The Court disagrees. The statute is drafted in such a way that the twenty day notice is only a predicate for a cause of action under 28 RCNY § 21-23(d)(6). There is no basis to read that requirement into the other basis for eviction under 28 RCNY § 21-23(d). However, for the reasons set forth below, Petitioner must proceed in this case under 28 RCNY § 21-23(d)(6) and the twenty day notice is a required predicate for this proceeding.

COLLATERAL ESTOPPEL

28 RCNY § 21-23 provides that all tenants of a building in DAMP shall be month-to-month tenants, further it provides that a non rent based eviction proceeding can only be maintained on one of the basis listed in subsections (d)(1) through (11).

Subsection (8) provides for eviction when "The building is to be placed in a program of rehabilitation or reconstruction which requires vacating of the entire building."

Petitioner argues that since it is proceeding under 28 RCNY § 21-23(d)(8), as one alternative ground, the notice required under 28 RCNY § 21-23(d)(6) is not required here. This argument was already made and rejected by Judge Chin in the previous proceeding. Judge Chin's decision provided that whether or not Petitioner was required to relocate Respondent by statute, Petitioner's concession that it had attempted to comply with the statutory provision requiring relocation, bound Petitioner to compliance with said provision and that "...petitioner cannot now claim it is proceeding under a different theory."

Judge Chin's order directed that Petitioner was required to serve a twenty day notice in accordance with 28 RCNY §21-23(d)(6), and dismissed the proceeding because Petitioner had failed to do so. Petitioner is thus collaterally estopped from claiming in this proceeding that no [*4]twenty day notice offering relocation is required. Petitioner's remedy if it disagreed with Judge Chin's decision was to appeal.

The doctrine of collateral estoppel precludes a party from re-litigating an issue raised in prior litigation, when that issue was decided against that party. Ryan v. New York Telephone Co., 62 NY2d 494 (1984). Collateral Estoppel allows the issue to be determined by reference to a determination in a previous proceeding, in which the same issue was necessarily raised and decided. Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481.

In the previous proceeding, the issue was material and essential to Judge Chin's dismissal of the proceeding. Were the Court to rule differently on this point in this proceeding it would essentially overrule Judge Chin's determination that the twenty day notice offering relocation is a required predicate to the Petitioner's cause of action for possession. As such, Petitioner is precluded from re-litigating the same issue in this proceeding. Ryan, supra at 501-502.

Moreover, the NHP is not intended to allow sponsors to displace senior citizens from their homes without cause or assistance. HPD describes NHP as follows:

The Neighborhood Homes Program's goal is to convey occupied City owned 1-4 family residential buildings to selected community based sponsors for rehabilitation and eventual sale to owner occupants. The sponsor will purchase the properties subject to existing tenancies and is responsible for identifying permanent affordable housing for each legal tenant in good standing. (See Exhibit "E" to respondent's moving papers).

Similarly, the information pamphlet describing NHP states that the purchase is subject to existing tenancies, and that the sponsor is responsible for identifying permanent affordable housing for each tenant in good standing.

The goals of this program would not be served by allowing Petitioner to evict this 79 year old disabled respondent from her home of thirty-five years for no cause and without relocation , as Petitioner claims it has a right to do.

Assuming arguendo that Petitioner were not precluded from raising this issue, the Court still does not find that the pleadings herein set forth a claim under 28 RCNY § 21-23(d)(8). While Petitioner alleges in its papers that its is entitled to proceed with Respondent's eviction pursuant to 28 RCNY § 21-23(d)(8), there are no statements in either the predicate notice or the petition which allege the facts required to support such a proceeding.

As noted above, a proceeding based on 28 RCNY § 21-23(d)(8) applies where "(t)he building is to be placed in a program or reconstruction which requires the vacating of the entire building."Petitioner does not allege that such is the case either in its predicate notices or in the petition. The Thirty Day notice states only that "(t)he scope of such rehabilitation or reconstruction is such that same cannot be accomplished within the time limits imposed by the aforesaid deed and LDA, unless the premises are vacant". The Court would normally construe "premises" to mean the subject apartment, and not the subject building. The pleadings do not allege anywhere that the entire building must be vacant due to the scope of the rehabilitation or reconstruction, which is what is required pursuant to 28 RCNY § 21-23(d)(8).

Moreover, the project summary annexed to the moving papers contemplates a "moderate rehabilitation." The subsection relied upon by Petitioner does not provide a basis for eviction to enable a sponsor to meet time constraints of the Land Disposition Agreement ("LDA"), but only provides for eviction when the entire building must be vacated for the purposes of the rehabilitation or reconstruction. [*5]

Based on the foregoing, even if Petitioner were not already bound to relocate Respondent and comply with the requirement to relocate respondent in accordance with 28 RCNY § 21-23(d)(6), pursuant to Judge Chin's prior ruling on the issue, Petitioner's the Court claim under 28 RCNY § 21-23(d)(8) is still subject to dismissal, as it is not supported by the underlying pleadings.

WHETHER PETITIONER HAS COMPLIED WITH THE REQUIREMENTS OF 28 RCNY 21-23(D)(6) IS A QUESTION OF FACT REQUIRING A TRIAL

Respondent alleges that Petitioner has not complied with the relocation requirements of 28 RCNY § 21-23(d)(6) in that the apartment that was offered to Respondent is not a "substantially similar" housing accommodation because it is on a higher floor than the premises currently occupied by Respondent.

"Although the statute does not specifically state what the notice must contain, for such a notice requirement to be meaningful, the tenant must be apprised of a substantially similar housing accommodation in the building or a nearby building at the same rent and the tenant has 20 days to move into such apartment or face eviction proceedings." Quisqueya Housing Corp. v. Various Tenants, 181 Misc 2d 1008 (Civ. Ct., NY Co., Ling-Cohan, J.,1999)

The Court finds that whether the Petitioner complied with its obligation to offer said notice, and whether the housing offered was substantially similar are questions of fact which must be determined at trial. The facts alleged in Respondent's moving papers suggest that petitioner's representatives agreed that the housing offered was not suitable and intended to make another offer. However, this issue can not be resolved on motion papers.

In Owner's Use Proceedings brought under §2524.4(a)(2) of the Rent Stabilization Code, where there exists an analogous requirement to relocate senior citizens or disabled persons, courts have held that an offer of relocation to an apartment which requires that the tenant climb additional stairs may not be considered an offer of equivalent housing, and that the higher floor is a relevant consideration in making such determination. See e.g. Tsororos v. Lauriello, N.Y.L.J., April 8, 1998, p.32, col.5, (Civ. Ct., Kings Co.,J., Wendt)(apartments which required a senior citizen who had trouble walking to negotiate additional stairs could not be considered equivalent); Dooling v. O'Connor, N.Y.L.J., Dec. 27, 2006, p.22, col.1 (Civ Ct., NY Co., J. McClanahan)(proposed apartment two floors higher may not be equivalent given tenant's age).

As such, the balance of Respondent's motion for summary judgment requesting dismissal of the cause of action asserted under 28 RCNY § 21-23(d)(6) is denied, and the matter set down for trial.

CONCLUSION

The portion of this proceeding brought pursuant to RPL §232a and 28 RCNY § 21-23(d)(11) is dismissed with prejudice for the reasons stated above. Similarly, the cause of action predicated on 28 RCNY § 21-23(d)(8) is dismissed with prejudice. The balance of Respondent's motion for summary judgment is denied and Petitioner's claim under 28 RCNY § 21-23(d)(6) shall proceed to trial.

The proceeding is restored to the Court's calendar for trial on June 5, 2008 at 9:30 a.m.

This constitutes the decision and order of this court.

Dated: Brooklyn, New York [*6]

May 16, 2008



SABRINA B. KRAUS

JHC