Before the Court is respondent's motion seeking dismissal of this proceeding pursuant to CPLR §3211(a)(1) and (7), RPAPL §711(1) and 24 CFR §247 et. seq., and the same is decided as provided herein.

This action was commenced as a holdover proceeding on the grounds of material non-compliance under the terms of the lease at issue and the allegation that respondent had adversely affected the rights and comfort of the other tenants in the building. Specifically, it is alleged that respondent acted in a menacing and unstable manner to other tenants, caused other tenants to become so fearful that they were forced to move from the building as a direct result of respondent's actions and threatened other tenants with a knife. Respondent now moves for dismissal of the Petition based upon the allegations that: the Petition fails to properly plead the Section 8 status of respondent's apartment, that the termination clause of the lease "constitutes a condition" and that the predicate Notice of Petition lacks the required specificity or fails to set forth the specific lease clause alleged to have been violated.

Pleading of Section 8 Status [*2]

The Notice of Termination at issue was specifically incorporated into the Petition and references the specific Section 8 HUD Handbook sections and subdivisions which are alleged to have been violated as well as the specific provisions of respondent's lease alleged to have been violated. Accordingly, the Court agrees with petitioner's claim that respondent, based upon a review of the Petition, cannot claim that he is unable to identify the governing HUD programs at issue or to properly prepare a defense. Further, the subject premises is a site-based HUD building and all paperwork is administered and completed on site, negating a need for separate or additional notice to Section 8. Therefore, respondent's claim of inadequate pleading of Section 8 status is baseless. Further, and as petitioner points out in opposition papers, the paragraph at issue has been upheld by thisCourt in the past(Greenwich Gardens v. Saunders, 23 Misc 3d 521 [2009]).

Respondent alleges herein, inter alia, that he cannot formulate a proper defense due to an alleged lack of specificity in the termination notice. Review of said notice, however, reveals that petitioner identified specific acts and behavior allegedly committed by respondent on specific dates. The notice also sets forth the specific sections of the HUD Handbook and lease which petitioner alleges to have been violated. The Court is left with the conclusion that the notice contains sufficient allegations with which respondent could prepare a defense to the Petition. Although respondent's counsel attempts to characterize petitioner's allegations as "minor violations", the Court agrees that petitioner's allegations of menacing, property damage, causing other tenants to become fearful to the point of vacating a HUD subsidized property, causing police to be called to the property and causing complaints by other tenants, are not "minor" as alleged by respondent. Accordingly, this portion of respondent's motion is also found to be baseless.

Respondent also alleges that the Petition must be dismissed because the default provision of the lease creates a condition which would preclude the commencement of a summary proceeding. In fact, and as asserted by petitioner, paragraph "23" of the lease in question creates a conditional limitation whereby the lease automatically comes to an end upon the occurrence of an event and notice of its occurrence, thus permitting the commencement of a summary proceeding. (See RPAPL §711(1)). Respondent was served with a thirty day termination notice and a concurrent ten day notice permitting respondent to discuss the charges with the landlord. Accordingly, petitioner has complied with the minimum requirements of HUD regulations. (Perrotta v. Western Regional Off-[*3]Track Betting Corp., 98 AD2d 504 (1983)). The parties herein agreed to a limitation of the term of the lease upon the giving of specific notice. There is no condition or condition subsequent involved because the notice of termination terminates the lease automatically upon the expiration date set forth in the notice, not at the option of the landlord as in the case of a condition subsequent as alleged by respondent. By reason thereof, respondent's argument regarding a condition subsequent must fail for the purposes of this motion.

Based upon the foregoing, respondent's motion is denied in its entirety. The parties and their respective legal counsel are directed to personally appear on February 16, 2010, for the trial of this matter.

The foregoing constitutes the Decision and Order of the Court.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:January 26, 2010

CC:Nassau/Suffolk Law Services Committee, Inc.

Horing, Welikson & Rosen, P.C.

SF/mp