Civil Court of the City of New York, Kings County, March 11, 2024

The Legal Aid Society for respondent.

Andrew Mark Tilem for petitioner.

This is a nonpayment proceeding commenced on May 24, 2023, against Carmen Aquino (respondent). Respondent is a recipient of an HRA HOME Tenant-Based Rental Assistance (TBRA) program subsidy.^[FN*] The proceeding first appeared on the court's calendar for intake with the Universal Access to Counsel (UAC) provider of the day on September 19, 2023. Thereafter, on November 8, 2023, The Legal Aid Society (LAS) appeared for respondent and the proceeding was adjourned for respondent to file an amended answer which respondent did. One week later, on December 14, 2023, respondent filed the instant motion to dismiss on the bases that petitioner has failed to plead the regulatory status of the premises, and that petitioner is seeking more than the tenant portion of the rent. (NY St Cts Elec Filing [NYSCEF] Doc No. 10, notice of mot [seq 1].)

The motion has been adjourned twice pursuant to a stipulated briefing schedule for petitioner's opposition and respondent's reply, if any. On the third adjourn date of the motion, petitioner sent a per diem attorney who was unfamiliar with the motion to check in with the clerk. No excuses were offered to account for petitioner's attorney of record's absence; or for his failure to oppose the instant motion. Finally, at 12:15 p.m., the covering attorney reappeared in the courtroom. Petitioner clearly has no vested interest in litigating this proceeding; as such, respondent's motion to dismiss is decided on default. (See Super Acupuncture & Herbology, P.C. v Global Liberty Ins. Co. of N.Y., 66 Misc 3d 143[A], 2020 NY Slip Op 50178[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020] [granting plaintiff's motion upon defendant's default in timely serving its cross-[*2]motion and opposition papers "as per the stipulation"].) Relatedly, pursuant to RPAPL 745 (2) (e), "[t]he court may {**83 Misc 3d at 627}dismiss any summary proceeding without prejudice . . . by reason of excessive adjournment[ ] request[s] by the petitioner."

That respondent is a recipient of a TBRA subsidy is apparent from the ledger attached to the 14-day rent demand notice which breaks down monthly payments in columns, to wit TBRA, HRA PA, and Tenant. Petitioner claims arrears in the amount of $21,390 due through April 2023. In clear violation of controlling law, the amount claimed includes TBRA payments which were not received from the program. (Dawkins v Ruff, 10 Misc 3d 88 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]; Prospect Place HDFC v Gaildon, 6 Misc 3d 135[A], 2005 NY Slip Op 50232[U] [App Term, 1st Dept 2005]; NYSCEF Doc No. 1, petition & rent demand with ledger at 2-3.)

Moreover, there is no reason why the court, or respondent, should be tasked with deducing that the premises are subject to a rent subsidy which provides respondent with substantive rights. It is the court's opinion that this fact should have been specifically pleaded in the petition and failure to do so is a material omission of fact which requires a motion to amend the petition and an analysis of prejudice. Even if there is no prejudice, no cross-motion to amend the petition is before the court. (17th Holding v Rivera, 195 Misc 2d 531, 532 [App Term, 2d Dept 2002] [holding that regulatory status must be pleaded but in the absence of discernible prejudice deeming petition amended to state that the premises are subject to rent stabilization].)

As for respondent's counterclaims, the court hereby severs them without prejudice pursuant to CPLR 407. (See Great Park Corp. v Goldberger, 41 Misc 2d 988, 989 [Civ Ct, NY County 1964] ["It is essential . . . to vest the court with broad powers to control such joinder or interposition of claims and to order severances when the summary nature of the special proceeding would be jeopardized" (internal quotations marks and citation omitted)]; V & J Inc. v 2320 Rte. 112, LLC, 13 Misc 3d 30, 31 [App Term, 2d Dept, 9th & 10th Jud Dists 2006] ["It is well settled that in a special proceeding, the trial court may at any time order a severance of counterclaims"].)