Landlord and Tenant - Eviction - Good Cause Eviction Law - Applicability to Tenant with Portable Section 8 Voucher

Landlord and Tenant - Eviction - Good Cause Eviction Law - Good Cause

New York Legal Assistance Group (Irina L. Kats of counsel) for Guadalupe Echevarria, respondent.

Baltzis Daigle LLP (Konstantinos G. Baltzis of counsel) for petitioner.

Petitioner commenced this holdover proceeding in July 2024 after service of a 90 day notice of termination. Petitioner alleged that the premises are not subject to rent regulation as{**87 Misc 3d at 799} the building was built after 1974 and that there is no 421-A or J-51 tax abatement in place.

Respondent appears with counsel and moves pursuant to CPLR 3211 (a) (1) and (7) to dismiss the proceedings as petitioner failed to assert why the premises are exempt from the Good Cause Eviction Law (herein GCEL) that went into effect on April 20, 2024. Respondent submits copies of certificates of occupancy and deeds for 347-A and 345-A which each contain six units and are owned by the same petitioner. As such, respondent argues that petitioner is not exempt from the Good Cause Eviction Law as a small landlord and has failed to articulate a permitted basis to commence a holdover proceeding per Real Property Law § 216. As petitioner has failed to state whether the premises are exempt from the Good Cause Eviction Law, respondent seeks dismissal.

In opposition petitioner cross-moves to amend the petition to state that the premises are not subject to the Good Cause Eviction Law pursuant to Real Property Law § 214 (5) in that the respondent is a recipient of section 8 and as such, respondent is not covered by the Good Cause Eviction Law. Petitioner argues as well that as the termination notice was issued on March 22, 2024, three weeks before the GCEL went into effect for notices, the termination notice is sufficient and does not require any language as to GCEL. Petitioner concedes that the petition and notice of petition do require notice as to whether the premises are covered or are exempt from the GCEL and seeks to amend the petition and notice of petition pursuant to CPLR 2001 and 3025 (b).

Respondent in opposition/reply argues that respondent, who has section 8 through a housing voucher program, does not live in New York City Housing Authority (NYCHA) or project-based section 8 housing and is therefore not exempt from protection under the GCEL. Respondent notes that petitioner is not a small landlord with less than 10 units, and there is no valid cause to exempt respondent from the GCEL protections.

Courts have held that under a motion to dismiss pursuant to CPLR 3211 (a) (1) dismissal is only warranted where the documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314 [2002]). The evidence must be unambiguous and of undisputed authenticity and resolve all factual issues as a matter of law (Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383 [1st{**87 Misc 3d at 800} Dept 2002]). In seeking dismissal, the proffered documents must "utterly refute[ ]" the allegations in the plaintiff's complaint "conclusively establishing a defense as a matter of law" (Goshen at 326).

On a motion to dismiss pursuant to CPLR 3211 (a) (7) a court must determine whether accepting as true the factual allegations in the petition and according the plaintiffs the benefits of any favorable inferences, the plaintiff can succeed upon any reasonable views of the facts and whether the pleadings have a cause of action (see Rochdale Vil. v Zimmerman, 2 AD3d 827 [2d Dept 2003]). Additionally, the allegations in the pleadings cannot be vague or conclusory (see Stoianoff v Gahona, 248 AD2d 525 [2d Dept 1998]). The court's role in determining a motion to dismiss is limited to determining whether the complaint states a cause of action (Frank v DaimlerChrysler Corp., 292 AD2d 118 [1st Dept 2002]). The standard is not whether a party has artfully drafted the pleadings, but whether, deeming the pleading to allege whatever can be reasonably implied for its statements, a cause of action may be sustained (Stendig, Inc. v Thom Rock Realty Co., 163 AD2d 46 [1st Dept 1990]). The pleading must be liberally construed and the court must accept the allegations as true, and if the allegations manifest any cognizable cause of action, the motion must be denied (see Fishberger v Voss, 51 AD3d 627 [2d Dept 2008]).

GCEL (Real Property Law § 214 [5]) states that no tenant may be evicted except for good cause except from a "unit on or within a housing accommodation where such unit is otherwise subject to regulation of rents or evictions pursuant to local, state or federal law, rule, or regulation."

Petitioner argues that as respondent is a recipient of section 8 and has an active voucher, her tenancy is exempt from the GCEL requirements. Respondent counters that although respondent has a portable housing voucher, her unit is not subject to any state or federal regulation and the mere fact that she receives a rental subsidy should not exempt her from GCEL protections.

For any eviction proceeding commenced on or after the date that GCEL was enacted, a petitioner must plead if the housing accommodation is subject to GCEL and, in the case of covered units, it must demonstrate a statutory good cause ground for removal. (Real Property Law § 216; RPAPL 741.) New York's GCEL was enacted on April 20, 2024 (L 2024, ch 56, § 1, part HH). The statute imposes several new notice provisions obligating{**87 Misc 3d at 801} landlords to state if the housing accommodations are subject to Good Cause in lease offers and pre-eviction notices (id. §§ 2-5). While these notice requirements were not phased in until August 18, 2024, 120 days after the effective date of the statute (L 2024, ch 56, § 1, part HH, § 7 [a]), the remaining portions of GCEL "take effect immediately and shall apply to actions and proceedings commenced on or after such effective date [April 20, 2024]" (L 2024, ch 56, § 1, part HH, § 7). This includes section 1 of the GCEL, which adds article 6-A to the Real Property Law and provides that a GCEL-covered tenant can only be removed from possession based on one of the good cause grounds enumerated in Real Property Law § 216 (1) (a)-(j). Thus, for any eviction proceeding commenced on or after April 20, 2024, a petitioner must plead if the housing accommodation is subject to GCEL (see RPAPL 741), and in the case of covered units it must demonstrate a good cause ground for removal (see Real Property Law § 216; see also QN St. Albans Holdings LLC v Sands, 85 Misc 3d 275, 277 [Civ Ct, Queens County 2024]).

GCEL, subject to certain exceptions, limits landlords from recovering possession of certain categories of apartments or housing accommodations except for good cause as defined by Real Property Law § 216 (L 2024, ch 56, § 1, part HH, § 1). Section 3 of part HH of the statute adds section 231-c to the Real Property Law (L 2024, ch 56, § 1, part HH, § 3). Real Property Law § 231-c (1) requires landlords to "append to or incorporate into any . . . petition pursuant to section seven hundred forty one of the real property actions and proceedings law" (hereinafter RPAPL 741) the notice to tenants regarding, inter alia, information as to whether a specific unit is subject to the GCEL (L 2024, ch 56, § 1, part HH, § 3). Section 5 of the GCEL amends section 741 to add two new subdivisions, (5-a) and (5-b) (L 2024, ch 56, § 1, part HH, § 5), which require a landlord to "plead if the housing accommodation is subject to GCEL (see RPAPL 741), and in the case of covered units it must demonstrate a good cause ground for removal" (QN St. Albans Holdings LLC v Sands, 85 Misc 3d 275, 277-278 [Civ Ct, Queens County 2024]; see Real Property Law § 216).

Respondent seeks dismissal per CPLR 3211 (a) (1) and (7) for failure to comply with GCEL requirements. Petitioner, in response to respondent's motion to dismiss, cross-moved to amend its petition to comply with RPAPL 741 (5-a) and (5-b). A party may seek leave to amend its pleadings at any time (CPLR{**87 Misc 3d at 802} 3025 [b]). Permission to amend pleadings should be "freely given" absent prejudice or surprise resulting directly from the delay (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983], quoting CPLR 3025 [b]; Lanpont v Savvas Cab Corp., 244 AD2d 208, 209 [1st Dept 1997] ["(I)n the absence of surprise or prejudice, it is an abuse of discretion, as a matter of law, for the trial court to deny leave to amend an answer during or even after trial"]). Herein, respondent fails to state any prejudice to respondent in petitioner's request to promptly amend the petition to comply with RPAPL 741 (5-a) and (5-b) and Real Property Law §§ 214-216. Given that petitioner has moved to amend its petition in an attempt to resolve all of the factual issues as a matter of law, and that the court must deem the allegations of the petition as true and construe them in petitioner's favor, affording petitioner the benefit of "every favorable inference" (Cortlandt St. Recovery Corp. v Bonderman, 31 NY3d 30, 38 [2018]), this court finds that respondent has failed to meet her burden seeking dismissal pursuant to CPLR 3211 (a) (1) and (7) as to the missing GCEL notice requirement.

The court will permit petitioner to amend the holdover petition to comply with GCEL requiring petitioner to state whether the premises were subject to GCEL and, if exempt, the basis for exemption. Petitioner promptly cross-moved to amend the petition after service of respondent's motion and respondent failed to show prejudice would be incurred by way of amendment (CPLR 3025 [b]; RPAPL 741 [5-a], [5-b]; see Sin Hang Lau v Yun He Zheng, 86 Misc 3d 859 [Civ Ct, Kings County 2025]; QN St. Albans Holdings LLC v Sands, 85 Misc 3d 275 [Civ Ct, Queens County 2024]). As such petitioner's cross-motion to amend the petition to add that the premises are exempt from GCEL due to respondent having a section 8 voucher is granted. The amended petition is deemed amended and served.

The court now looks to the amended petition and whether the petition now alleges a good cause to evict respondent from the premises. It is undisputed that respondent is a recipient of a "tenant-based" section 8 subsidy—a voucher. Unlike a project-based subsidy, which is associated with a specific dwelling unit, a voucher is "portable," i.e., "a portable voucher which a tenant can use to pay rent on any apartment, within certain limits, in the United States" (Matter of Manhattan Plaza Assoc. v Department of Hous. Preserv. & Dev. of City of N.Y., 3 Misc 3d 717,{**87 Misc 3d at 803} 718 n 1 [Sup Ct, NY County 2004], affd 8 AD3d 111 [1st Dept 2004]; Klein v Rhea, 39 Misc 3d 1216[A], 2013 NY Slip Op 50629[U] [Sup Ct, NY County 2013]). Courts have held that the section 8 program is voluntary and that "state and local law may properly provide additional protections for recipients of section 8 rent subsidies" and that those additional protections do not change the voluntary nature of a landlord's participation in the section 8 program (see Tapia v Successful Mgt. Corp., 79 AD3d 422, 424 [1st Dept 2010]; Kosoglyadov v 3130 Brighton Seventh, LLC, 54 AD3d 822, 824 [2d Dept 2008]). Here, the mere fact that for section 8 NYCHA requires additional protections for the recipient of its voucher does not render the unit one that is a "unit on or within a housing accommodation where such unit is otherwise subject to regulation of rents or evictions pursuant to local, state or federal law, rule, or regulation" (Real Property Law § 214 [5]) as the participation in the section 8 program by a landlord is voluntary. The voucher is associated with the recipient of the voucher, not the unit. Here petitioner has failed to prove that a tenant who has a portable housing choice voucher which can be used in any apartment the respondent rents makes the unit a "unit . . . subject to regulation of rents or evictions pursuant to local, state or federal law, rule, or regulation" under Real Property Law § 214 (5). Respondent's portable voucher does not regulate the amount of rent which can be charged for the unit or dictate the terms of an eviction such as a unit within a HUD-based section 8 building, NYCHA complex, Department of Housing Preservation & Development (HPD)-regulated housing or rent-stabilized/rent-regulated units. The court concedes that with a NYCHA section 8 portable voucher, petitioner must adhere to certain notice requirements to NYCHA; however the rules regarding evictions or rents is determined by the type of unit, not the type of subsidy a tenant may have. Petitioner's arguments that the premises are exempt because respondent has a portable section 8 voucher lack any basis in the law (Real Property Law § 214).

Based upon the foregoing, respondent's motion to dismiss, as petitioner is not a small landlord and has failed to prove the unit is not subject to GCEL on any other grounds, is granted.

Petitioner's cross-motion to amend is granted.

Respondent's motion to dismiss is granted.