University Riverview Assoc. v Chisholm

Civil Court of the City of New York, Bronx County

Decided on April 6, 2026

Index No. LT-323243-24/BX

Diane E. Lutwak, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent's Motion to Conduct Discovery or to Dismiss (m seq #2) and Petitioner's Cross-Motion for Leave to Amend Petition (m seq #3), consolidated herein for determination:

Papers Doc ##

Respondent's Notice of Motion, Attorney's Affirmation,

Power of Attorney's Affirmation, Exhibits A-I 1,2,3,4-12 [NYSCEF##21-32]

Petitioner's Cross-Motion, Attorney's Affirmation, Exhs 1-3 13,14,15-17 [NYSCEF##33-37]

Respondent's Attorney's Affirmation in Reply/Opposition, Exs A-E 18,19,20-24 [NYSCEF##39-44]

BACKGROUND & PROCEDURAL HISTORY

In this holdover eviction proceeding petitioner-landlord University Riverview Associates (Petitioner) seeks to evict respondent-tenant Norma Chisholm (Respondent) from an apartment at 1750 Sedgwick Avenue in the Bronx. The proceeding is based on a 90-day notice dated February 20, 2024 terminating the tenancy as of May 31, 2024 and indicating that the apartment is not subject to rent regulation because "the Housing Accommodations were built or substantially rehabilitated as family units on or after January 1, 1974 and you took occupancy subsequently thereto." The petition, filed June 27, 2024, includes this same language at ¶ 6 and further states, "The respondent receives a Section 8 subsidy, which is administered by NYCHA [New York City Housing Authority]." At ¶ 9, Petitioner asserts it is entitled to "the fair value of use and occupancy at $601.00 per month from 11/1/2023 to 6/30/2024 totaling $4,451.00 with interest from 11/1/2023" as well as future use and occupancy.

Upon motion by the New York City Department of Social Services, the Court appointed a guardian ad litem (GAL) for Respondent by Decision/Order of November 27, 2024. The GAL appeared, as did Respondent-Undertenant "Jane Doe", who identified herself as the daughter of Respondent, and the Court transferred the case to a Trial Part by Decision/Order of April 10, 2025 noting that Respondent's answer was a "general denial" and the statement: "Landlord refused to give renewal lease due to lack of payment of sec dep from 1974".

In this Trial Part, after an initial pre-trial conference on May 27, 2025 the case was adjourned to August 4 for trial. On August 1, a Notice of Appearance was filed by Bronx Legal Services on behalf of Respondent. The case was then adjourned a few more times in the Trial Part while settlement negotiations took place. On December 3, the Court gave Respondent's counsel permission to file a motion to amend the answer and to dismiss based on a claim arising out of New York State's Good Cause Eviction Law (GCEL), Article 6-A of the Real Property Law (RPL), and the case was adjourned to January 21, 2026.

On January 20, 2026, Respondent by counsel filed (1) an "Answer"FN1 raising six defenses (failure to plead Rent Stabilization as the apartment's regulatory status; defective predicate notice; failure to provide the requisite GCEL predicate notice or plead good cause in the petition; misuse of the pseudonym "Jane Doe" for Respondent's daughter Erica Chisholm; noncompliance with the Williams Consent Decree applicable to NYCHA Section 8 voucher holders by failing [*2]properly to certify its intent to commence a proceeding with NYCHA and failing to serve NYCHA with a copy of the petition and predicate notice prior to the commencement of the proceeding); one affirmative defense (use and occupancy should be limited to the amount of Respondent's Section 8 tenant share); and two counterclaims (harassment and attorney's fees); and (2) a motion seeking, in the alternative, discovery under CPLR § 408 related to the defenses and counterclaim based on failure to correctly plead the regulatory status or dismissal under CPLR R 3211(a)(7) and the GCEL, RPL §§ 214, 215, and 216. On January 21 the case was adjourned with a briefing schedule to March 27, 2026, when the motions were marked submitted.

Respondent's Motion

Respondent seeks discovery in the form of a demand for documents and six interrogatories concerning "the alleged substantial rehabilitation of the subject building between 1974 and present". Respondent points to the language in the termination notice and petition stating that the apartment is not subject to rent regulation because it was "built or substantially rehabilitated" on or after January 1, 1974 and her claim that the premises are subject to Rent Stabilization. To support the claim of "ample need" for discovery under CPLR § 408 and applicable case law such as New York University v Farkas (121 Misc 2d 643, 647, 468 NYS2d 808 [Civ Ct NY Co 1983]), Respondent provides copies of Petitioner's deed dated June 14, 1973; a prior deed dated June 8, 1969; a printout from the New York City Department of Buildings (DOB) regarding work done at the building between 1991 and 2017; a printout from the New York City Department of Housing Preservation and Development (DHPD) showing that the building has 20 stories and 227 units; a certified written statement from the New York State Division of Housing and Community Renewal (DHCR) that there are no cases or registration statements on file with that agency's Office of Rent Administration for "the subject building/apartment"; the assertion that in four eviction cases involving other apartments at 1750 Sedgwick Avenue the petitions assert that the premises are subject to Rent Stabilization (LT-336095-22/BX, LT-328297-23/BX, LT-310726-24/BX, and LT-317870-25/BX); and an affirmation from Respondent's daughter Erica Chisholm describing the poor condition of the building and their apartment and alleging her belief that the apartment had not been renovated "in a very long time". Erica Chisholm Affirm. at ¶ 11.

Respondent's request for dismissal is grounded in the undisputed fact that the petition includes no statements as to whether the apartment is or is not subject to the GCEL and, if it is, that there is "good cause" as defined in the GCEL for nonrenewal of the lease and grounds for eviction, as required by RPL §§ 215 and 216 (1) and RPAPL §§ 741(5-a) and (5-b), citing to DOC Realty Mgmt Inc v Morales (2024 NYLJ LEXIS 3009 [Civ Ct Qns Co 2024]).

Petitioner's Opposition and Cross-Motion

In opposition to Respondent's motion for discovery, Petitioner asserts that the statement in the petition that the apartment is not subject to rent regulation because it was built or substantially rehabilitated after 1974 is consistent with the applicable regulation, 9 NYCRR § 2520.11(e), which exempts from Rent Stabilization "housing accommodations in buildings completed or buildings substantially rehabilitated as family units on or after January 1, 1974." Petitioner provides a copy of the building's Certificate of Occupancy issued by DOB on September 14, 1976 pursuant to an application designated as "N.B. 55-72" and explains that [*3]"N.B." is a DOB designation for a "new building", citing to DOB's website. Petitioner argues that, the building at 1750 Sedgwick Avenue having been completed after January 1, 1974, Respondent has failed to show "ample need" for discovery of documents pertaining to "substantial rehabilitation".

In opposition to Respondent's motion to dismiss, and in support of Petitioner's cross-motion to amend the petition pursuant to CPLR § 3025(b), Petitioner points out that while the GCEL was enacted on April 20, 2024, the notice provision of the GCEL, RPL § 231-c, requiring landlords to append the specified GCEL notice to their predicate notices and RPAPL § 741 petitions, was not effective until August 18, 2024, after the commencement of this case. As to case law holding that petitions filed after the GCEL's initial effective date of April 20, 2024 but before August 18, 2024 must contain a statement of the GCEL status, Petitioner seeks leave to amend its petition to include such a statement, asserting that although the apartment is subject to the GCEL, Petitioner had "good cause" not to renew Respondent's lease at the time the Petition was filed "because Respondent failed to pay rent due and owing". Petitioner argues that under CPLR § 3025, leave to amend a pleading "shall be freely given", and that "absent prejudice, courts are free to permit amendment even after trial", Kimso Apartments, LLC v Gandhi (24 NY3d 403, 411, 998 NYS2d 740, 745, 23 NE3d 1008, 1013 [2014]).

Petitioner includes with its papers a proposed amended petition that includes a new paragraph 9 that reads as follows:

9. Please note that the subject premises are subject to the requirements of the Good Cause Eviction law as defined in Article 6A of the NYS Real Property Law (RPL) and to RPL 231-c, but is not renewing the lease pursuant to RPL 231-c(4)(E).

The original paragraph 9 regarding unpaid "use and occupancy" is renumbered as paragraph 10. Attached to the proposed amended petition is a GCEL notice, indicating that the GCEL applies but Petitioner is not renewing the lease for the following reason: "E. The landlord is not renewing the lease because the tenant has failed to pay rent due and owing, and the rent due or owing, or any part thereof, did not result from a rent increase which is unreasonable."

On reply, as to the need for discovery Respondent questions Petitioner's claim that 1750 Sedgwick was a new building in 1976, pointing to DOB's "N.B. 55-72" designation and asserting that this "likely instead indicates that the New Building application was filed in 1972," and that "[t]his does not prove that the building was built after 1974." Attorney's Reply Affirm. at ¶ 8. Respondent also points out that Petitioner did not respond to the allegation that in at least four other cases involving other apartments at 1750 Sedgwick Avenue Petitioner alleged that the subject premises were subject to Rent Stabilization.

In opposition to Petitioner's cross-motion Respondent argues that a petition that fails to comply with the GCEL is not amendable, citing to and providing copies of two unreported decisions in which a Housing Court Judge granted the tenants' motions to dismiss for failure to comply with the GCEL and denied the landlords' cross-motions to amend their petitions (Exhibits B and C to the reply papers, LT-330035-24/BX and LT-331248-24/BX).

Respondent's counsel further argues that Respondent will "suffer tremendous prejudice" if the Court allows the Petition to be amended, Attorney's Reply Affirm. at ¶ 16, pointing out that she is 84 years old, suffers from dementia, is bedbound, has lived in the building since the mid to late 1970's, has lived in the subject apartment since the mid 1990's, has received a NYCHA Section 8 subsidy for decades, and relies on Adult Protective Services to pay her share of the rent from her Social Security benefits. Respondent argues that Petitioner had ample time [*4]to seek to amend its petition, as there was a 20-month period between the filing of the petition and the cross-motion to amend, and that, "Petitioner's significant delay and conduct during the course of the proceeding suggest more than a mere technical mistake, but rather, a deliberate intent to deny Ms. Chisholm of her rights under the law." Id. at ¶ 19.

In the alternative, Respondent argues that the proposed amended petition itself is defective and should be dismissed. Respondent argues that while the GCEL does include nonpayment of rent as a "good cause" ground for eviction, here the amended petition only seeks "use and occupancy" (U&O), not rent. Further, Respondent argues that the amount of U&O sought is incorrect: While both the original and amended petitions specifically seek U&O of $4451, comprised of $601 a month for the period of November 2023 through June 2024, Petitioner's rent ledger (Petitioner's Exhibit A/NYSCEF Doc #37) shows that it received five payments of $682 during this period. Further, Petitioner's rent ledger does not comport with a settlement agreement in a prior nonpayment proceeding, LT-010941-20/BX: while that case was discontinued through August 31, 2023 by stipulation dated August 25, 2023 (Respondent's Exhibit D/NYSCEF Doc #43), the rent ledger does not reflect a zero balance at the end of August 2023. Respondent also objects that the proposed amended petition includes other defects: misuse of the pseudonym "Jane Doe" and failure to comply with the Williams Consent Decree.

DISCUSSION

The Court first will address Petitioner's motion to amend paragraph 9 of the petition to include a statement that while the GCEL does apply to the subject premises, "good cause" for eviction exists due to Respondent's nonpayment of rent. Under CPLR R 3025(b), leave to amend a pleading "shall be freely given" absent prejudice or surprise. Kimso Apartments, LLC v Gandhi (24 NY3d 403, 411, 998 NYS2d 740, 745, 23 NE3d 1008, 1013 [2014]); Badesch v Fort 710 Assocs, LP (233 AD3d 604, 604, 222 NYS3d 447, 447 [1st Dep't 2024]). Prejudice in this context "is not found in the mere exposure of the defendant to greater liability. Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position." Loomis v Civetta Corinno Constr Corp (54 NY2d 18, 23, 444 NYS2d 571, 573, 429 NE2d 90, 92 [1981]).

Absent prejudice, a landlord is permitted to amend its holdover petition to include or amplify GCEL-related allegations. Yorkville Plaza Assocs LLC v Guo (2025 NY Slip Op 25282 [Civ Ct NY Co 2025]); Shoreview Holdings, LLC v Fernandez (2025 NY Slip Op 25277 [Civ Ct Qns Ct 2025]); Parco v Fisch (2025 NY Slip Op 51752[U], 242 NYS3d 916 [Civ Ct Kings Co 2025]); Inga v Revenco (86 Misc 3d 1210[A], 233 NYS3d 921 [Civ Ct Kings Co 2025]); Sin Hang Lau v Yun He Zheng (86 Misc 3d 859, 225 NYS3d 854 ([Civ Ct Kings Co 2025]); Barretta v Parilla (85 Misc 3d 1222[A], 227 NYS3d 546 [Civ Ct Qns Co 2025]).FN2

Here, what Respondent raises as prejudice - that she is 84 years old, suffers from dementia, is bedbound, has lived in the building since the mid to late 1970's, has lived in the subject apartment since the mid 1990's, has received a NYCHA Section 8 subsidy for decades, [*5]and relies on Adult Protective Services to pay her share of the rent from her Social Security benefits — are the circumstances of her life which certainly are compelling but are not factors that constitute the type of prejudice contemplated by CPLR R 3025. Petitioner's delay in seeking to amend its petition to include the required GCEL allegations causes no prejudice to Respondent and her family, who have continued to reside in the premises during the pendency of this proceeding. Respondent has both counsel and a court-appointed GAL to protect her interests, assist her with the preparation of her case and avoid any undue prejudice. Inga v Revenco (86 Misc 3d 1210[A], 233 NYS3d 921 [Civ Ct Kings Co 2025]). While the amendment to the petition may affect the outcome, the Court can allow Respondent adequate time to file an amended answer and otherwise prepare for trial if need be.

Turning to Respondent's discovery request, it is clear from the documents filed by the parties that 1750 Sedgwick Avenue was erected pursuant to a "New Building" application issued in 1972 by DOB, which then certified the building for occupancy four years later.FN3 This is a reasonable timetable for construction of a 227-unit building. As stated in Rent Stabilization Code § 2520.11(e), "housing accommodations in buildings completed or buildings substantially rehabilitated as family units on or after January 1, 1974" are exempt from Rent Stabilization. See also Rent Stabilization Law, NYC Admin Code § 26-504((a)(1)(3). The DHCR's certified statement that none of the apartments in this building have ever been registered with that agency (Respondent's Exhibit E/NYSCEF Doc #28) is consistent with the DOB documents. Petitioner's filing of four petitions in other eviction proceedings containing allegations of Rent Stabilization coverage of the apartments in question is not of sufficient significance to warrant discovery.

While Respondent's daughter is of the opinion that "The building overall is in disarray and outdated," this is a 50-year-old — no longer new — building. In fact, Respondent's daughter acknowledges that since the 1990's all of the windows as well as the kitchen cabinets, flooring and appliances have been replaced, presumably due to normal wear and tear over time.FN4 On the record before the Court, Respondent has not established the requisite "ample need", NYU v Farkas, supra, for discovery on her merely speculative claim that the building "likely" was completed or substantially rehabilitated prior to January 1, 1974. Compare, e.g., Mautner-Glick Corp v Higgins (64 Misc 3d 16, 101 NYS3d 810 [App Term 1st Dep't 2019]); 1505 Broadway Realty LLC v Kahler (2024 NY Slip Op 31633[U][Civ Ct Kings Co 2024]).

Turning now to Respondent's motion to dismiss under CPLR R 3211(a)(7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." Guggenheimer v Ginzburg (43 NY2d 268, 275, 401 NYS2d 182, 185, 372 NE2d 17, 20 [1977]), quoted in Polonetsky v Better Homes Depot, Inc (97 NY2d 46, [*6]54, 735 NYS2d 479, 483, 760 NE2d 1274, 1278 [2001]). The pleading is to be afforded a liberal construction, CPLR § 3026, its allegations are accepted as true and the plaintiff (or petitioner) is given the benefit of every possible favorable inference. 511 W 232nd Owners Corp v Jennifer Realty Co (98 NY2d 144, 152, 746 NYS2d 131, 134, 773 NE2d 496, 499 [2002]). In a summary eviction proceeding, the "four corners" of the petition include any required predicate notices that are annexed and incorporated by reference. See CPLR R 3014.

New York State's Good Cause Eviction Law (GCEL), effective April 20, 2024, limits landlords from recovering possession of certain housing accommodations except for "good cause" as defined by Real Property Law § 216. Where the GCEL applies, there are ten grounds constituting good case for eviction, summarized as follows: (a) tenant's failure to pay rent due and owing; (b) tenant's violation of a substantial obligation of the tenancy or breach of the landlord's rules and regulations, and failure to cure such violation within ten days after written notice; (c) tenant creating a nuisance; (d) tenant's occupancy is in violation of law for which the landlord is subject to civil or criminal penalties; (e) tenant using the premises for an illegal purpose; (f) tenant's unreasonable refusal to provide access to the landlord; (g) landlord seeks to recover possession for their own or specified family members' personal use; (h) landlord seeks to demolish the premises; (i) landlord seeks to remove the premises from the rental market; (j) tenant fails to agree to reasonable changes to a lease at renewal, including reasonable rent increases as defined in the statute.

The GCEL in RPL § 231-c establishes the text of a mandatory notice indicating the GCEL's applicability or inapplicability which must be appended to or incorporated into "any initial lease, renewal lease, notice required pursuant to [RPL § 226-c(1)(a)], notice required pursuant to [RPAPL § 711(2)], or petition pursuant to [RPAPL § 741]." The RPAPL § 231-c notice must state whether the premises are subject to or exempt from the GCEL; if the premises are exempt, why they are exempt; if the premises are subject to the GCEL, the statutory good cause ground for eviction. The notice provisions had a delayed effective date of August 18, 2024.

In this case, filed in June 2024, while the GCEL notice provisions were not in effect at that time the GCEL itself was. It is undisputed that Respondent's apartment is subject to the GCEL and that the original petition made no reference to the GCEL. However, as noted above, the Court has allowed Petitioner to file an amended petition to address this deficiency. The question presented is whether that amended petition states an adequate "good cause" basis for eviction. The statutory "good cause" ground upon which Petitioner relies in this proceeding is that "[t]he tenant has failed to pay rent due and owing, provided however that the rent due and owing, or any part thereof, did not result from a rent increase which is unreasonable". RPL § 216(1)(a)(i). The amended petition differs from the original petition in that it adds a new paragraph "9" and includes a three-page, statutory GCEL notice. The new paragraph "9" states that the subject premises are subject to the GCEL and that Petitioner "is not renewing the lease pursuant to RPL 231-c(4)(E)." The GCEL notice includes checkmarks next to the boxes indicating that the premises are subject to the GCEL and that Petitioner's "good cause" for not renewing Respondent's lease is: "E. The landlord is not renewing the lease because the tenant has failed to pay rent due and owing, and the rent due or owing, or any part thereof, did not result from a rent increase which is unreasonable."

Significantly, neither the amended petition nor the attached GCEL notice includes any facts about what rent "due and owing" Respondent "has failed to pay". It is fundamental under [*7]RPAPL § 741(4) that a petition in a summary eviction proceeding must "[s]tate the facts upon which the special proceeding is based.". If this were a nonpayment eviction proceeding under RPAPL § 711(1) based on a fourteen-day rent demand, certainly, as explained by the Appellate Division, First Department, "At a minimum, the landlord or his agent should clearly inform the tenant of the particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each such period." 542 Holding Corp v Prince Fashions, Inc (46 AD3d 309, 310, 848 NYS2d 37, 39 [1st Dep't 2007]), citing Schwartz v Weiss-Newell (87 Misc 2d 558, 561, 386 NYS2d 191 [Civ Ct NY Co 1976]).

The question of whether a similar standard should apply to a holdover proceeding against a tenant residing in an apartment subject to the GCEL based on the claim that the tenant "failed to pay rent due and owing" was addressed by Housing Court Judge Adam Meyers in RP Wimbledon Owner, LLC v Chisholm (86 Misc 3d 1075, 231 NYS3d 372 [Civ Ct NY Co 2025]). In that case, annexed to the petition — as is annexed to the amended petition here — was a GCEL notice on which the landlord had checked the boxes indicating that the subject premises are subject to the GCEL and that the "good cause" for nonrenewal of the lease was the tenant's failure to pay rent due and owing. In that case — unlike in this case — the petition included a statement about the unpaid rent, specifically that the tenant was "liable to Petitioner for rent in the amount of 28,350.00 through August 31, 2024". The court found this to be an insufficient statement of the "facts upon which the proceeding is based" as required by RPAPL § 741(4), explaining:

In this case, the petition fails to comply with the requirements of [RPAPL] section 741 (4), because the plain statement of a lump sum of arrears failed to provide the respondent with the information necessary to identify and interpose potential defenses. Did these arrears accrue before the notice of nonrenewal was served or after? Do they represent payments tendered but not deposited? Checks that were lost or stolen? Did the shortfall result from payments having been applied toward other fees? Without a basic articulation of the specific payments that were missed or the periods of time in which the arrears accrued, a tenant is prejudiced in their ability to resolve the underlying dispute or craft a legal defense. Without a basic articulation of the specific payments that were missed or the periods of time in which the arrears accrued, a tenant is prejudiced in their ability to resolve the underlying dispute or craft a legal defense.

RP Wimbledon Owner, LLC v. Chisholm, supra (86 Misc 3d at 1081, 231 NYS3d at 378-79). See also 141 MacDonough St Hous Dev Fund Corp v Allen (2025 NY Slip Op 34594[U][Civ Ct Kings Co 2025]).

Applying this same analysis herein, where the petition states no facts whatsoever about any unpaid rent — it does not even state a lump-sum amount as was the case in RP Wimbledon Owner, LLV v Chisholm - dismissal is warranted.

This Court will not follow Inga v Revenco, supra, to the extent it declines to dismiss a case under RPAPL § 741(4) where both the original and amended holdover petitions included — as they do here - a separate paragraph stating that the landlord was entitled to U&O at a specified monthly amount for a specified period adding up to a specified total. Paragraph "9" of the original petition in this case, and paragraph "10" of the amended petition, reads as follows: "9. The Petitioner is entitled to the fair value of use and occupancy at $601.00 per month from 11/1/2023 to 6/30/2024 totaling $4,451.00 with interest from 11/1/2023 for an amount to be set by the Court as well as future use and occupancy."

"Rent" and "U&O" are distinct terms, with the former being a payment a tenant makes to a landlord under a lease and the latter being a payment made for possession of real property under a theory of quantum meruit for a period when there is no lease between the parties. See Eighteen Assocs, LLC v Nanjim Leasing Corp (257 AD2d 559, 560, 683 NYS2d 291, 292 [2nd Dep't 1999]); Goldman v Quintavalle (184 Misc 2d 310, 708 NYS2d 592 [App Term 1st Dep't 2000]). Under the GCEL, failure to pay rent is one of the "good cause" grounds for a landlord to refuse to renew a lease and commence an eviction proceeding, RPL § 216(a)(1), but failure to pay "U&O" is not. As Petitioner does not allege any unpaid rent and instead only states a claim for "U&O", the petition must be dismissed for failure to state a viable ground for eviction under the GCEL. Compare 1719 Gates LLC v Torres (85 Misc 3d 906, 915, 222 NYS3d 366, 373 [Civ Ct Qns Co 2024])(finding compliance with the GCEL and granting judgment to landlord after inquest where landlord proved three months of rental arrears due under a lease in addition to "U&O" which accrued thereafter).

CONCLUSION

For the reasons stated above, it is hereby ORDERED that:

(1) Petitioner's cross-motion (seq #3) is granted to the extent of permitting amendment of ¶ 9 of the Petition and deeming the proposed amended petition duly served and filed; AND

(2) Respondent's motion (seq #2) is granted to the extent that this proceeding is DISMISSED, without prejudice.

This constitutes the Court's Decision and Order, which is being uploaded on NYSCEF.

Diane E. Lutwak, HCJ

Dated: April 6, 2026

Bronx, New York