Justice Court of the Town of Clarkstown, Rockland County, February 24, 2025

{**88 Misc 3d at 734}OPINION OF THE COURT

Aimee Pollak, J.

Before the court is the notice of petition and petition of Spring Valley Preservation, L.P. (petitioner landlord) to recover real property from Cleveland T. McCoy (respondent tenant) for the premises known as 7 Lakeview Village, Spring Valley, NY 10977 and for damages in the [*2]amount of unpaid rent, plus interest and costs. Also before the court is the motion by respondent for a stay of eviction per RPAPL 753.

The matter came on for trial on February 4, 2025. Petitioner was represented by Edward Quilice, Esq. of Silverstein Law P.C. Respondent was represented by Mary Ellen Natale, Esq. of the Legal Aid Society of Rockland County. The following exhibits were entered into evidence:

Background

Petitioner is the beneficial owner and landlord of a low income subsidized housing complex known as Lakeview Village, located in Spring Valley, New York. On December 30, 2022, petitioner and respondent entered into a lease agreement for unit 7 at the property beginning on December 30, 2022, and extending for a year. Rent was set at $1,000/month, due on the first of each month.

On August 20, 2024, petitioner delivered a 30 day notice to respondent informing him that he owed $10,160 in rent from October 2023 through August 2024. The 30 day notice informed respondent that he had 30 days to pay the arrears or surrender possession of the unit. The 30 day notice further stated that petitioner would commence summary proceedings to recover possession of the unit if respondent neither paid the arrears nor vacated the unit.

On October 31, 2024, petitioner sent a subsequent letter by certified mail to respondent informing him that he owed $12,160 in unpaid rent as of that date. This notice indicated that respondent's rent was more than five days past due and further indicated that failure of respondent to pay immediately upon receipt of the notice would result in the landlord taking legal action.

On November 8, 2024, petitioner filed the notice of petition and petition with this court. The matter was set for a first appearance {**88 Misc 3d at 735}on November 19, 2024, but adjourned on consent. Petitioner and respondent both appeared by counsel on December 10, 2024. The matter was again adjourned to allow respondent to file an answer, which he did on January 3, 2025. The parties appeared on January 7, 2025. No settlement was reached and the matter was set down for trial on February 4, 2025.

Trial Testimony

Petitioner called Ms. Christine Scofield of Arco Management as its first witness. Ms. Scofield testified that she is the vice president of operations. She said that Arco Management provides management services at Lakeview Village. She testified about the lease agreement, the 30 day notice, the five day notice sent on October 31, 2024, by certified mail, and the rent [*3]ledger, each of which were accepted into evidence over objection of respondent's counsel.^FN* Ms. Scofield testified that the 30 day notice was served on Mr. McCoy personally by a process server. She testified that Mr. McCoy currently owes $16,160 in back rent, plus $142 for an air conditioning fee.

On cross-examination, Ms. Scofield admitted that she did not sign the lease agreement or the notices. She testified that she did not send the notices herself. On redirect, she testified that she is familiar with the office procedures for sending notices of these types. Petitioner rested.

Counsel for respondent moved to dismiss for failure to make out a prima facie case. Counsel argued that the predicate notices were defective, as the 30 day notice was served two months before the five day notice was mailed. Counsel for petitioner responded that the five day notice was properly sent more than five days after rent became due. Counsel argued that failure to send the five day notice may be raised as an affirmative defense, but pointed out that it was not raised in the answer and was therefore waived. The motion to dismiss was held in abeyance.

Respondent took the stand to testify on his own behalf. He testified that he had lived in Lakeview Village for about a year. He testified that he was working when he moved into the unit, but then he was diagnosed with cancer, which prevented him from continuing his employment. He testified that he subsequently {**88 Misc3d 736}had a stroke and was then diagnosed with a second type of cancer. He testified that he receives cancer treatment at Good Samaritan Hospital. He is 64 years old.

Respondent testified that he made his rent payments each month until he stopped working. He said that he last worked on May 30, 2023. He reviewed the ledger that was admitted into evidence. Respondent testified that he did not know if the balance of $16,160 was correct. He testified that he had not made any payments since April 2024, but he thought that he had submitted a couple of money orders in October 2023 that totaled $4,000. He testified that he kept his payment receipts in his car, but he does not have that car anymore. Respondent admitted to some confusion and called himself "discombobulated."

Respondent testified that he has not looked for alternative housing. He said that if he is forced to move out of his unit, he would probably move in with the mother of his three-year-old son. He also said that his daughter lives in North Carolina and she has offered for him to stay with her, but he does not want to do that until he has finished his medical treatment.

On cross-examination, respondent testified that he had tried to apply for Section 8 after he stopped working, but he was denied. He testified that he receives $800/month in SSI (supplemental security income). He admitted that he could not afford to pay $1,000/month in rent going forward.

In closing, respondent's counsel argued that respondent should be given credit for the amounts he claimed to have paid that he testified were not reflected on the ledger. Respondent's counsel also argued that the improper order of the delivery of the predicate notices requires dismissal of the matter. Finally, in the alternative, counsel requested that this court grant an RPAPL 753 stay of eviction to respondent based on his serious health issues.

Petitioner's counsel argued in closing that petitioner had proved with competent evidence [*4]that respondent owed over $16,000 in rental arrears. Counsel argued that petitioner had properly completed every procedural step required for a summary proceeding. Counsel argued that all predicate notices were properly served. Petitioner's counsel argued that any objection to the five day notice was not preserved because it was not raised in the answer. Counsel argued that respondent did not provide any competent evidence of payments that were not properly credited. Finally, counsel argued that respondent does not qualify for a stay per RPAPL 753 because he has other housing options and he cannot pay ongoing rent.

Discussion

The Housing Stability and Tenant Protection Act of 2019 (HSTPA) (L 2019, ch 36) enacted many changes and additions to the Real Property Law and the Real Property Actions and Proceedings Law for the stated purpose of tenant protection (see HSTPA § 1 ["This act enacts into law major components of legislation relating to rent regulation and tenant protection"]). Amongst other things, HSTPA added subdivision (d) to Real Property Law § 235-e (HSTPA § 1, part M, § 9), which directs that a landlord send a notice to a tenant when rent is five days late.

Article 7 of the RPAPL contains the substantive and procedural rules governing summary proceedings to recover possession of property. The courts have held that there must be strict adherence to the statutory provisions of the summary eviction proceedings in the RPAPL because they are creations of statute in derogation of the common law (see Dulberg v Ebenhart, 68 AD2d 323, 328 [1st Dept 1979] [summary proceeding may be maintained only where authorized by statute]; Zenila Realty Corp. v Masterandrea, 123 Misc 2d 1 [Civ Ct, NY County 1984]; see also MSG Pomp Corp. v Doe, 185 AD2d 798, 799-800 [1st Dept 1992] [a "summary proceeding is a special proceeding governed entirely by statute and . . . there must be strict compliance with the statutory requirements to give the court jurisdiction" (internal quotation marks and citations omitted)]). In particular, RPAPL 711 (2) requires a landlord to deliver a predicate notice to the tenant by personal service at least 14 days prior to commencement of a summary nonpayment proceeding. The landlord must establish that it provided a tenant with a notice that satisfies RPAPL 711 (2), served as directed in RPAPL 735, or the summary proceeding must be dismissed (see e.g. ShopRite Supermarkets, Inc. v Yonkers Plaza Shopping, LLC, 29 AD3d 564, 565-566 [2d Dept 2006]; Matter of Salvatore & Catherine Pepe v Miller & Miller Consulting Actuaries, 221 AD2d 545 [2d Dept 1995]; Greenport Preserv., L.P. v Heyward, 74 Misc 3d 46 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Article 7 of the Real Property Law contains additional substantive and procedural law governing the landlord-tenant legal relationship. Article 7 of the Real Property Law applies whether a summary proceeding is pursued or not. The notice {**88 Misc3d 738}provision at section 235-e (d) requires a landlord to provide a tenant with a written notice of the nonpayment of rent by certified mail after the rent is five days late. The statute states that "[t]he failure of a lessor . . . to provide a lessee with a written notice of the non-payment of rent may be used as an affirmative defense by such lessee in an eviction proceeding based on the non-payment of rent" (Real Property Law § 235-e [d]). However, unlike RPAPL 711 (2), the courts have held that lack of compliance with Real Property Law § 235-e (d) is not jurisdictional (see 320 E. 73, LLC v Alfredo, 80 Misc 3d 178, 182-183 [Civ Ct, NY County 2023] [compliance with Real Property Law § 235-e (d) not a condition precedent to maintaining summary proceeding]; Lawler v Canfield, 66 Misc 3d 312, 317 [Watertown City Ct 2019]).

Here, respondent does not dispute that petitioner complied with section 711 (2) by personally [*5]serving the 30 day notice dated August 20, 2024. Nor does respondent allege that the section 711 (2) notice was defective. Respondent instead argues that the section 235-e (d) notice should have preceded the section 711 (2) notice. Respondent argues that the alleged improper order of the notices invalidated the section 235-e (d) notice and/or the section 711 (2) notice, requiring dismissal of the petition.

Reference to the text of the two statutes does not lend support to respondent's argument, as neither statute references the other. Case law has not addressed this matter, either, making it a matter of first impression. However, in discussing whether section 235-e (d) created a condition precedent to filing a summary proceeding, the court in 320 E. 73, LLC v Alfredo reasoned:

"When the legislature passed the HSTPA and substantially amended RPAPL 711 (2), it did not require a notice pursuant to Real Property Law § 235-e (d) as a condition precedent to the maintenance of a summary nonpayment proceeding. Nor did the legislature require service of the Real Property Law § 235-e (d) notice as a condition precedent within Real Property Law § 235-e (d) itself (compare this with Real Property Law § 232-a where a condition precedent to maintaining a summary proceeding is clearly articulated). If the legislature sought to add a new or additional condition precedent to the maintenance of a summary nonpayment proceeding, it would have explicitly done so in passing {**88 Misc3d 739}the HSTPA. For these reasons, the court finds that compliance with Real Property Law § 235-e (d) is not an essential fact that must be stated in the petition pursuant to RPAPL 741 (4) for petitioner to maintain this summary nonpayment proceeding." (80 Misc 3d at 182-183.)

Using the same principles of statutory construction, a plain reading of the language reveals that neither statute directs a particular order for service of the two notices. Instead, it appears that the RPAPL 711 (2) notice and the Real Property Law § 235-e (d) notice are completely independent of each other. Presumably, if the legislature intended to require that one notice precedes the other, it could have explicitly included such language in the HSTPA. Lacking any evidence of such intent, this court must conclude that there is no requirement that the section 235-e (d) notice be mailed prior to the service of the section 711 (2) notice, nor that the mailing of the section 235-e (d) notice after the section 711 (2) notice impacts the validity of either. Therefore, respondent's motion to dismiss on this basis is denied.

A petitioner landlord has the burden to prove (1) that the petitioner is the real property's owner or is otherwise authorized to maintain the proceeding; (2) the existence of a valid lease between the parties; (3) that the predicate notice demanding unpaid rent was served; (4) and that the rent demanded is actually owed (see Hon. Gerald Lebovits & Michael B. Terk, A Guide to New York State Commercial Landlord-Tenant Law and Procedure—Part II, 87 NY St BJ 34, 38 [Mar./Apr. 2015]). The petitioner has the burden of proving its case by a fair preponderance of the credible evidence (see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976]).

Here, petitioner provided uncontroverted testimony that it is authorized to bring the proceeding, a copy of a valid lease, proof of predicate notices, and credible testimony and evidence that a total of $16,160 was owed in back rent. Respondent provided inconsistent testimony about how long he had lived in the unit, when he stopped working, when he got sick, and when or how much he paid in rent with money orders that allegedly were not reflected in the rent ledger. Respondent admitted that he was "discombobulated," which significantly undercut the reliability of his testimony. Respondent's claim that he had paid additional amounts by money orders that were not properly recorded was not sufficiently credible to overcome [*6]petitioner's proof. Therefore, petitioner's claim for a judgment of possession, damages in the amount of $16,160, and a warrant of eviction is granted.

Finally, respondent moves for a stay pursuant to RPAPL 753 based on his poor health. While serious ill health is a ground upon which a stay may be granted, unfortunately, respondent admitted that he cannot pay the ongoing rent, which is a requirement for granting a stay per RPAPL 753 (2). Further, respondent admitted that he has not looked for alternative housing because he can move in with his son's mother if he cannot remain in Lakeview Village, undercutting any argument that he has made reasonable efforts to secure other housing. Based on this testimony, respondent failed to establish entitlement to a stay. Therefore it is ordered that the motion to dismiss by respondent is denied; and it is further ordered that a judgment of possession of the property at 7 Lakeview Village, Spring Valley, New York in favor of petitioner is granted; and it is further ordered that a judgment in the amount of $16,160 as and for unpaid rent from November 2023 through February 2025, plus interest and costs, is granted; and it is further ordered that a warrant of eviction for removal of respondent from the premises is granted; and it is further ordered that respondent's motion for a stay pursuant to RPAPL 753 is denied.