Civil Court of the City of New York, Bronx County, August 31, 2018

BOOM!Health Legal Services (Emilio Paesano of counsel) for respondent.

Jason D. Boroff & Associates PLLC (Madalina Danescu of counsel) for petitioner.

The decision and order on this motion is as follows:

This is a licensee holdover proceeding in which petitioner claims that respondent's license to occupy the subject premises expired with the death of her husband. The respondent lives in Mitchell-Lama housing which is supervised by the New York State Division of Housing and Community Renewal (DHCR).

This proceeding was adjourned several times for a Mandarin interpreter, for evaluation by Adult Protective Services and the appointment of a guardian ad litem, and for respondent to retain counsel. On June 6, 2018, after retaining an attorney, respondent served petitioner with an answer interposing a succession defense. The following day, respondent's counsel prepared a formal request to Findlay House on behalf of respondent that she be recognized as a successor tenant to the subject premises and mailed it to petitioner's attorney. The proceeding was adjourned several more times for motion practice, and to conference the case with the court.^[FN1]

Respondent moves for a stay of this proceeding pending the outcome of respondent's application to remain in occupancy as the lawful tenant of the apartment, and petitioner cross-moves for the use and occupancy that has accrued since the commencement of this proceeding, as well as ongoing use and occupancy{**61 Misc 3d at 646} during the pendency of this proceeding pursuant to Real Property Law § 220, RPAPL 749 (3) and 745 (2). Petitioner alleges several procedural infirmities on the part of respondent over the course of the proceeding, but does not oppose respondent's motion for a stay. Oral argument was heard on August 23, 2018.

The Answer

Petitioner argues that respondent's answer should be disregarded because it was served impermissibly late. However, an answer in a holdover proceeding may be filed "at the time when the petition is to be heard." (RPAPL 743.) Moreover, respondent served her answer immediately upon retaining counsel. (See City of New York v Candelario, 156 Misc 2d 330 [App Term, 2d Dept 1993], affd in part, revd in part on other grounds 223 AD2d 617 [1996] [an adjournment for tenant to retain an attorney extends tenant's time to file an answer].)

The Verification

Petitioner further argues that respondent's answer is improper because it contains a verification from respondent in English only, and respondent has requested a Mandarin interpreter each time she has been in court. However, respondent is entitled to an interpreter in court (Uniform Rules for Trial Cts [22 NYCRR] § 217.1). Moreover, petitioner, who accepted service of the answer personally on June 6, 2018, waited more than five weeks to make any objection as to the form of the answer and has thus failed to timely object to the form of the verification. (CPLR 3020.) Respondent also correctly points out that petitioner failed to attach a copy of the answer to which it objects as required by CPLR 2101 (f).

Short Service

Section 406 of the CPLR, which states "[m]otions in a special proceeding, made before the time at which the petition is noticed to be heard, shall be noticed to be heard at that time," shortens the time for notice of any motion made prior to the hearing in a special proceeding. (PCMH Crotona, L.P. v Taylor, 57 Misc 3d 1212[A], 2017 NY Slip Op 51401[U] [Civ Ct, Bronx County 2017].) Little or no notice is permitted by CPLR 406. (Goldman v McCord, 120 Misc 2d 754, 756 [Civ Ct, NY County 1983].) Any prejudice to the opposing party caused by truncated service of a motion can be cured by an "ad hoc adjournment procedure." (Id.)

{**61 Misc 3d at 647}In this case, petitioner was served with the respondent's motion, returnable on July 18, 2018, by regular mail on July 14, 2018. This is permissible pursuant to CPLR 406. Respondent also sent petitioner a courtesy email to ensure that petitioner would have notice of the motion and would not be surprised. On July 18, 2018, petitioner requested an adjournment to oppose respondent's motion and to cross-move for use and occupancy and the parties stipulated to a briefing schedule. Thus, any prejudice to petitioner has been cured by the additional time to oppose respondent's motion, time to which petitioner consented, and is necessarily obviated by the fact that petitioner does not oppose respondent's motion for a stay.^[FN2]

Respondent's motion for a stay pending the determination at DHCR is unopposed; thus, this proceeding is stayed pending the outcome of the administrative proceeding at DHCR.

In any event, the court notes that CPLR 2201 provides this court with the discretion to stay this proceeding "upon such terms as may be just." A stay of a proceeding is appropriate "where the decision in one action will determine all the questions in the other action, and the judgment on one trial will dispose of the controversy in both . . . ; this requires a complete identity of the parties, the causes of action and the judgment sought." (952 Assoc., LLC v Palmer, 52 AD3d 236, 236-237 [1st Dept 2008].) The parties and issues in both the holdover proceeding and the proceeding initiated by respondent with the housing company are identical. In both proceedings respondent should be recognized as a successor tenant to the Mitchell-Lama apartment in which she resided with her deceased husband. Respondent has applied to petitioner for permission to remain in occupancy as a successor tenant and permission has been granted by petitioner. The parties await DHCR's determination which will be dispositive of this proceeding.

DHCR is vested with exclusive jurisdiction to determine remaining family member claims in state-assisted Mitchell-Lama housing. (Bedford Gardens Co., LP, 29 AD3d 501 [holding that the New York City Department of Housing Preservation and Development (DHPD) has exclusive jurisdiction over succession claims in city-assisted Mitchell-Lama housing];{**61 Misc 3d at 648} Rochdale Vil., Inc. v Goode, 16 Misc 3d 49, 52 [App Term, 2d Dept, 2d & 11th Jud Dists 2007] [holding that "(i)n view of the similarity between the two sets of regulations, the same rule of exclusivity of jurisdiction that is applied in city-assisted Mitchell-Lama housing should be applied in state-assisted Mitchell-Lama housing"]; St. Marks Place Hous. Co., Inc. v Moultrie, 34 Misc 3d 140[A], 2012 NY Slip Op 50053[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [holding that occupant's succession-rights defense cannot be entertained in this (licensee) summary proceeding as DHCR has exclusive jurisdiction over that claim]; see also Starrett City, Inc. v Smith, 25 Misc 3d 42 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009].)

In this case, an award of use and occupancy pursuant to RPAPL 745 (2) is not appropriate. Section 745 (2) (a) of the RPAPL provides in relevant part:

"In a summary proceeding upon the second of two adjournments at the request of the respondent, or, upon the thirtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner, the court shall direct that the respondent, upon an application by the petitioner, deposit with the court within five days sums of rent or use and occupancy accrued from the date the petition and notice of petition are served upon the respondent, and all sums as they become due for rent and use and occupancy, which may be established without the use of expert testimony."

Under RPAPL 745 (2), if the respondent fails to make the deposit, or makes an initial deposit but not subsequent deposits, the consequences are dire. In the first instance, the answer and all defenses will be stricken. (RPAPL 745 [2] [c] [i].) In the second instance, the parties will be sent for an immediate trial. (RPAPL 745 [2] [c] [ii].)

The remedies provided by RPAPL 745 (2) are antithetical to the facts and posture of this proceeding. This proceeding is being stayed in order for respondent's succession claim, which was raised in her answer as a defense to the proceeding, to be determined by DHCR as is required by law given that DHCR has exclusive jurisdiction over respondent's claim. Were respondent{**61 Misc 3d at 649} to be required to pay use and occupancy pursuant to RPAPL 745 (2), her defense of succession would be stricken if she failed to make the initial deposit, or she would be required to go to an immediate trial if she failed to pay use and occupancy after an initial deposit. Such remedies conflict with the requirement that her succession claim lies within the exclusive jurisdiction of DHCR.

Section 749 (3) of the RPAPL, which is entitled "Warrant," contemplates a postjudgment posture of a summary proceeding and is therefore inapplicable to the instant proceeding at its current posture. Moreover, this court does not view Real Property Law § 220 to require that use and occupancy be paid to a landlord during the pendency of summary holdover proceedings. Section 220 of the Real Property Law authorizes actions which seek to "recover a reasonable compensation for the use and occupation of real property, by any person, under an agreement, not made by deed." (See e.g. 230 Park Ave. Assoc. v State of New York, 165 Misc 2d 920, 927 [Ct Cl 1995] [recognizing Real Property Law § 220 as a codification of the common-law rule that a landlord could recover reasonable use and occupation from a tenant who went into possession under an invalid lease].)

However, this court possesses the broad discretionary authority to grant payment of use and occupancy during the pendency of the proceeding as is necessary to balance equitably the parties' competing interests long recognized by the Appellate Division in the First Department. (Alphonse Hotel Corp. v 76 Corp., 273 AD2d 124, 124 [1st Dept 2000] ["(T)he court has broad discretion in awarding use and occupancy pendente lite"].) In upholding the lower court's decision to stay an ejectment action pending administrative decision of the New York City Loft Board, the Court wrote:

"However, we find error in the failure of Special Term to direct defendants to pay use and occupancy at the rate currently provided for as rent on each rental due date and, accordingly, modify the order to that extent. Such a result, in our view, accommodates the competing interests of the parties in affording necessary and fair protection to both parties, to the tenant through possession, pending determination of the issue by the Loft Board, and, at the same time, to the landlord by requiring the tenant to pay the landlord for use and occupancy." {**61 Misc 3d at 650}(Eli Haddad Corp. v Redmond Studio, 102 AD2d 730, 731 [1st Dept 1984] [emphasis added and citations omitted]; see MMB Assoc. v Dayan, 169 AD2d 422, 422 [1st Dept 1991] [noting that award of use and occupancy during proceeding "accommodates the competing interests of the parties . . . (by) preserv(ing) the status quo until a final judgment," and that it would be "manifestly unfair that defendant herein should be permitted to remain in possession of the subject premises without paying for their use"]; Shoshany v Goldstein, 20 Misc 3d 687, 689 [Civ Ct, NY County 2008] ["This court has the broad discretion to award use and occupancy pendente lite"].)^[FN3]

Here, like in Eli Haddad Corp., the equities require that respondent pay for her use and occupancy of the subject premises pending the determination by the administrative agency with [*5]both the expertise and jurisdiction to decide the facts at issue.^[FN4] The court is guided by the regulations governing city-assisted Mitchell-Lama housing which recognize this need and require that pending DHPD's determination of succession rights "the applicant may continue in occupancy and shall be required to pay for the use and occupancy of the apartment in an amount equal to the monthly rental/carrying charge paid by the vacating tenant/cooperator." (28 RCNY 3-02 [p] [8] [iii].)

Accordingly, within 20 days of the service of a copy of this order with notice of entry, the court orders respondent to pay use and occupancy of $751 per month from July 2018 (the month that petitioner interposed its cross motion for use and occupancy) for the pendency of this proceeding, which shall include any months during which respondent's request remains at DHCR and any months during which any appeal from DHCR's determination denying succession remains pending. In{**61 Misc 3d at 651} addition, within 30 days of the petitioner providing respondent with a lease agreement following approval of her succession claim at DHCR, respondent shall pay any outstanding use and occupancy.^[FN5] On default in either payment, petitioner may restore this proceeding to the calendar on notice to respondent for entry of a monetary judgment only.