Notice of Motion, Affirmation & Exhibits Annexed.................................1

Affirmation in Opposition & Exhibits Annexed........................................2

Reply Affirmation & Exhibits Annexed...................................................3

Respondent's Memorandum of Law.......................................................4

Upon the foregoing papers and for the following reasons, the motion by Respondent Susie Wright ("Tenant"), for, inter alia, an order dismissing the instant chronic rent delinquency holdover proceeding, is granted, and the proceeding is dismissed. [*2]

Tenant is a 73 years old who has resided in the subject project-based Section 8 federally subsidized Housing and Urban Development ("HUD") building, known as 443-445 St. Ann's Avenue in the Bronx, New York, for the past 31 years, and in the subject apartment premises, Apartment 3C, for the last 15 years, with her three teenage grandchildren, of whom she is their legal guardian. While Tenant was paying $548 per month for the rent, apparently constituting 30% of her Social Security and pension income, HUD paid Landlord Mins Court Housing Company, Inc. ("Landlord") a subsidy of $1,292 to complete her monthly rent of $1,840. However, sometime in 2012, the subject premises were switched to become a market rate apartment and Tenant was offered an enhanced Section 8 portable voucher through the NYC Department of Housing and Preservation Development ("HPD"). It appears that issues arose with Tenant's qualifications for the Section 8 voucher, prompting her to fall in arrears, and to commence a CPLR Article 78 proceeding against HPD and Landlord.

Prior thereto, on February 8, 2013, Landlord served upon Tenant a ten-day Notice to Terminate her Tenancy, alleging that she had violated a substantial obligation of her lease agreement by "exhibit[ing] a chronic and systematic propensity for paying [her] rent late each month, allow[ing] arrears to accumulate over periods of months, and hav[ing] compelled the Landlord to commence numerous non-payment proceedings to collect rent" during the past 22 years of her tenancy. Specifically, Landlord alleged that, "Since 1991, [Tenant] h[as] caused the Landlord to commence legal proceedings for non-payment on no less than twelve (12) occasions," under Bronx Housing Court Index numbers: 94173/1991, 123398/1994, 123398/1995, 2023/1997, 91194/1998, 29359/2002, 30753/2003, 35974/2004, 52163/2006, 19145/2007, 30507/2011 and 54176/2011, thereby substantially violating her primary lease obligation and requiring the immediate termination of her tenancy.

By Notice of Petition and Petition filed February 27, 2013, Landlord commenced this chronic rent delinquency holdover proceeding against Tenant to recover possession of the premises, alleging that she has chronically failed to timely pay the rent, her lease expired on February 24, 2013 and that she owes over $15,090 in rent arrears. On the appearance date of March 13, 2013, by Stipulation and Order, Tenant consented to the jurisdiction of this Court, waived any traverse issues, and agreed to subpoena her HPD Section 8 records. After several adjournments, this Court discontinued the action against the John and Jane Doe respondents, and Tenant eventually obtained legal counsel, the Legal Aid Society, Bronx Neighborhood Office.

By Notice of Motion returnable November 7, 2013, Tenant now moves for an order dismissing the proceeding pursuant to CPLR 3211(a), and for summary judgment in her favor pursuant to CPLR 3212, arguing that the Notice of Termination fails to state a prima facie cause of action for breach of a substantial obligation of the tenancy based on chronic nonpayment of the rent. In the alternative, she seeks summary judgment dismissing that part of the Petition which asserts untimely predicate claims barred by the Statute of Limitations of CPLR 213(2), or for permission to file an Answer pursuant to CPLR 3025(b). In support of her Motion, Tenant argues that Landlord cannot rely on nonpayment proceedings commenced against her over six years prior to this proceeding, and that, in any event, the three timely legal proceedings which could be relied upon by Landlord were either settled by stipulations containing repair and habitability issues or concluded after only one appearance; hence, Landlord cannot classify her as chronically delinquent and the Petition should be dismissed. In opposition, Landlord argues that [*3]its predicate notice sufficiently states a cause of action for a substantial obligation breach and that triable issues of fact exist as to the basis for the chronic nonpayment holdover proceeding. This Court disagrees.

"A history of repeated nonpayment proceedings brought to collect chronically late rental payments supports an eviction proceeding on the ground that the tenant has violated a substantial obligation' of the tenancy" (Adams Tower Ltd. Partnership v Richter, 186 Misc 2d 620, 621—622 [AT 1st Dept 2000], citing Sharp v Norwood, 89 NY2d 1068, 1069 [1997]). This proceeding was not brought upon the ground of nuisance, which requires a showing of "aggravating circumstances" (Sharp v Norwood, supra at 1069), but rather upon the allegation that Tenant's long-term, "chronic and systematic" failure to pay rent as it became due breached a material leasehold obligation. The number and frequency of nonpayment proceedings are not the only criteria judicially considered when determining whether a substantial obligation has been violated since "the number of nonpayment actions commenced is relevant only in the context of the entire circumstances surrounding the alleged withholding of rent" (Greene v Stone, 160 AD2d 367, 368 [1st Dept 1990] ). The breach must also be firmly documented in the record either by the absence of bona fide habitability claims or any dispute as to the amount of rent owed raised during the proceedings (see Adams Tower Ltd. Partnership v Richter, 186 Misc 2d at 620). "A temporary financial embarrassment may excuse isolated instances of late payment, but inability to pay cannot excuse chronic and continuing delinquency" (id. [nine nonpayment proceedings in three years] see 2564 Co. v D'Addario, 35 Misc 2d 176 [AT 1st Dept 1961] [eleven nonpayments in almost two years]).

Applying these legal principles to the matter at bar, Tenant has demonstrated that Landlord failed to sufficiently establish a prima facie showing of a substantial obligation breach. As a threshold matter, Tenant is correct that out of the 12 legal proceedings relied upon by Landlord in bringing this chronic rent delinquency proceeding, nine should be barred from consideration under the Statute of Limitations in CPLR 213(2), as having been commenced more than six years prior to this contractual proceeding (specifically, Index Nos. 94173/1991, 123398/1994, 123398/1995, 2023/1997, 91194/1998, 29359/2002, 30753/2003, 35974/2004, 52163/2006) (see Westminster Props. Ltd. v Kass, 163 Misc 2d 773, 774 [AT 1st Dept 1995]). As such, Tenant's motion is partially granted dismissing any consideration of those time-barred proceedings prior to 2007. Therefore, only the last three proceedings can be legally relied upon in examining the sufficiency of the predicate notice of chronic rent delinquency.

In particular, the 2007 nonpayment proceeding commenced against Tenant under Index No. 19145/2007, was duly answered by her pro se asserting affirmative defenses that "the monthly rent being requested was not the legal rent" or already paid, and that there were "conditions in the apartment which need[ed] to be repaired." Consistent with her answer, that proceeding was settled on the first court appearance of April 4, 2007 by a so-ordered Stipulation of Settlement, which provided payment and repairs schedules, including repairs needed for radiators, leaks and electrical problems. Similarly, Tenant asserted a payment defense to the 2011 proceeding under Index No. 30607/2011, which concluded in a default judgment for $1,431 after an initial Stipulation of Settlement requiring Landlord to make some repairs and Tenant to provide missing money orders in order to receive proper credit by Landlord. Since there was no other appearance, it could be reasonably inferred that Tenant paid the money owed and continued [*4]her tenancy. The final 2011 nonpayment proceeding Index No. 54176/2011 resulted in a Default Judgment against Tenant, dated December 23, 2011, in the sum of $1,148 for her failure to answer. No further document is contained in that file.

This Court is thus faced with the fact that the 2007 nonpayment case was settled by a Stipulation of Settlement requiring repairs, that the initial 2011 proceeding resulted in an interim Stipulation also requiring repairs, and that there is no showing that Tenant failed to comply with the terms of those Stipulations. Those two proceedings were therefore not so unjustified as to warrant a lease violation finding (see Bennett v Mentis, NYLJ, September 13, 2000, at 22, col 1 [AT 1st Dept 2000]). Only the December 2011 proceeding could serve as a proper predicate for chronic delinquency since it resulted in a Default Judgment against Tenant for failure to answer. But even were this Court to deem the two 2011 proceedings as proper predicate proceedings, Tenant has established that Landlord has failed to allege enough frequency and number of prior proceedings to show that Tenant has substantially violated a material obligation of her 15-year tenancy.

In accordance with the foregoing, Tenant's motion to dismiss the Petition for failure to sufficiently state a cause of action under a theory of substantial obligation breach is granted, and the proceeding is hereby dismissed. The foregoing constitutes the decision and order of the Court.

E N T E R:

Dated: January 10, 2014

Bronx, New YorkJ.H.C.

John Ciurcina, Esq.

1461 Franklin Avenue

Garden City, New York

Legal Aid Society, Bronx Neighborhood

260 East 161st Street

8th Floor

Bronx, New York 10451