BACKGROUND

This summary holdover proceeding was commenced by NYCHA TWO BRIDGES HOUSES (Petitioner) seeking to recover possession of 286 SOUTH STREET, APT 2A

NEW YORK, NY 10002 (Subject Premises) based on the allegations that JACQUELINE SUAREZ and WILLIAM RIVERA (Respondent), are licensees who were no longer entitled to remain in occupancy after the death of the last tenant of record Rosa Suarez.

.PROCEDURAL HISTORY

This proceeding was commenced by service of a ten day notice to quit dated March 13, 2009. The Notice of Petition and Petition issued on April 9, 2009, and the proceeding was originally returnable in Part E on April 28, 2009.

The proceeding was adjourned to April 28, 2009 and then again to June 2, 2009. On June [*2]2, 2009, Respondent signed a stipulation adjourning the proceeding to September 2, 2009, and agreeing that Rosa Suarez, the last tenant of record, was deceased and deeming said fact proven.

The case continued to be adjourned over the next several months. Respondent filed a remaining family member grievance, and when this was denied, Respondent filed an Article 78 proceeding.

On or about January 2010, the Court was provided with a record pursuant to a subpoena, which stated that Jacqueline Suarez along with her minor children, including Alexis Rivera, were living in Section 8 Housing in Orange County New York. The January 19, 2010 letter from Pathstone, which was made part of the Court file, also provides that Respondent was not part of the household in Orange County, and that if Jacqueline Suarez was claiming residence in the Subject Premises such a claim would be in violation of her contractual obligations under the Section 8 housing in Orange County.

On February 23, 2010, Jacqueline Suarez signed a stipulation relinquishing all claims to the Subject Premises.

PETITIONER'S MOTION FOR SUMMARY JUDGMENT

On or about March 21, 2011, Petitioner moved for summary judgment. The motion was only served on Respondent and John or Jane Doe. The Court presumes this because Petitioner deemed the case resolved as against Jacqueline Suarez pursuant to the February 23, 2010 stipulation referenced above.

Petitioner's motion is supported by a lease showing Rosa Suarez was the last tenant of record for the Subject Premises.

Petitioner also attached a copy of a Project Grievance dated April 24, 2009, denying Respondent's remaining family grievance claim, and a District Grievance Summary dated January 8, 2010 dismissing the second step grievance. Respondent asserted that Jacqueline Suarez and his daughter Alexis Rivera had received permission to permanently occupy the Subject Premises. Respondent annexed a document to his opposition papers which is a letter dated December 22, 1999 on NYCHA stationary granting such approval. However, the Borough Manager denied the claim finding that the letter was not signed and stating:

A review of the file reveals that the lessee requested permission for Alexis to reside in the apartment however the request was disapproved by the manager on October 19, 2007. Alexis was not listed on any of the income affidavits. There was(sic) no documents on file that indicate that Alexis had permission to reside in the apartment. Mr. Rivera was asked to submit court documents indicating that he has custody of Alexis. He indicated that he will file for custody and Ms. Suarez has no objection. William Rivera and Alexis never received permission from the manager to reside in the apartment. Therefore, they are considered unauthorized occupants. I concur with the decision of the manager and deny their remaining family member claim.

Respondent filed an Article 78 proceeding challenging this determination. Pursuant to a decision and order dated September 23, 2010, Judge Wooten dismissed the Article 78 proceeding, finding that it was time barred and that Petitioner's denial of the remaining family grievance claim was neither arbitrary nor capricious. Respondent appealed the dismissal, and pursuant to a decision dated March 3, 2011 the Appellate Division dismissed the appeal.

Based on the foregoing, Petitioner appears to have established that Respondent, who [*3]appears to be the only party named, that remains in occupancy, has no right to ongoing possession of the Subject Premises. Nothing contained in Respondent's submission in opposition gives rise to any defense in regard to Respondent's right to occupy, or to any question of fact in regards to that issue.

However, there is a discrepancy in the motion papers between the affidavit of service for the Petition and Notice of Petition that is annexed to the moving papers and the original affidavit contained in the Court file. Specifically, the Court notes that the original affidavit in the file for the Notice of Petition and Petition is stamped received April 22, 2009, by the Court. The affidavit provides that service was made by conspicuous place delivery on April 16, 2009, at 3:30, with a previous attempt on April 15, 2009 at 5:00. The original affidavit in the Court file does not indicate whether these times were am or pm. Although the subsequent mailing is specified to have been made on April 18 at 2:40 pm.

The copy of the affidavit that Petitioner attached to the moving papers does have the times specified as to am and pm. That copy states that service was made by an initial attempt on April 15, 2009 at 5pm and conspicuous place delivery on April 16, 2009 at 3:30 am.

This discrepancy raises several concerns for the Court and as it pertains to this motion. Assuming arguendo that the version of the affidavit that was annexed to the moving papers is correct, service at 3am is not permissible. Assuming that it is incorrect and the second service was at 3pm, service would still be defective because both attempts were during business hours.^[FN1]

However, the Court notes that pursuant to a stipulations in the file dated October 20, 2009 and April 13, 2010, Respondent consented to the jurisdiction of the Court and thus waived any service claims.

Based on the foregoing, Petitioner is entitled to a final judgment of possession as against William Rivera. The proceeding is dismissed as against John Doe and Jane Doe as no evidence was offered in the motion in regards to said occupants. The warrant of eviction shall issue forthwith, execution of the warrant is stayed through June 30, 2011.

Petitioner is cautioned regarding what appears to be a document that was altered from the original filed with the Court, and submitted as if it had not been altered. This is not the first time that this Court has observed such discrepancies in the affidavits submitted by Petitioner.

It is unethical and improper to alter a document once it has been filed, or to attach an altered copy of a document to motion papers, without disclosing that changes have been made. If Petitioner discovers a defect in the affidavit originally filed, the proper course of conduct would be to make a motion to amend. Any such discrepancies if discovered in the future will result in this Court setting the matter down for a sanctions hearing, and taking other appropriate actions.

This constitutes the decision and order of this Court.

__________________________

HON. SABRINA B. KRAUS

Dated: New York, New York

May 13, 2011