Cross Bronx Preserv. LLC v. Delgado

Cross Bronx Preserv. LLC v Delgado 2025 NY Slip Op 31036(U) March 24, 2025 Civil Court of the City of New York, Bronx County Docket Number: L&T Index No. 337942/23 Judge: Elizabeth Donoghue Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: BRONX CIVIL COURT - L&T 03/24/2025 12:57 PM INDEX NO. LT-337942-23/BX NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/24/2025

-l- CIVI COURT OF THE CITY OF NEW YORK COUNTY OF BRONX: HOUSING PART S X CROSS BRONX PRESERVATION LLC, L&T Index No.337942123 Petitioner,

-against- DECISION/ORDER

ONEIKAH DELGADO,

Respondent X Present: Hon. ELIZABETHDONOGHUE Judge, Housing Court

Recitation, as required by CPLR 2219(a), of the papers considered in the review ofRespondent's Motion to Dismiss:

Papers Numbered

Order to Show Cause, Memorandum, Affirmations. ......NYSCEF Doc. 9-12 Respondent's Exhibits....... NYSCEF Doc. l3-20 Answering Affidavit NYSCEF Doc. 28 Petitioner's Exhibits............. ... NYSCEF Doc. 29-31 Respondent's Reply................ .... NYSCEF Doc. 33-34 Respondent's Reply Exhibits NYSCEF Doc. 35-41

After hearing and upon the foregoing cited papers, the decision and order on Respondents' order to show cause is as follows:

This nonpayment eviction proceeding was commenced by the filing of the Petition and

Notice ofPetition on September 13,2023, against Respondent Oneikah Delgado ("Respondent),

seeking $29,232.00 for the period August 2020 to July 2023. According to the petition, NYCHA

is the fee owner of the subject premises/building, and as such the premises are exempt from rent

regulation pursuant to the statutory exemption of housing accommodations owned and./or [* 1] 1 of 5

FILED: BRONX CIVIL COURT - L&T 03/24/2025 12:57 PM INDEX NO. LT-337942-23/BX NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/24/2025

-2- operated by a public housing authority. Pursuant to a Declaration of Interest and Nominee

Agreement dated December 28, 2018, petitioner is the equitable and Beneficial Owner ofthe

Property and thus authorized to maintain the instant proceeding. Petitioner operates the subject

building pursuant to that regulatory agreement. The building was converted from public housing

(NYCHA) to project-based Section 8 pursuant to NYCHA's Permanent Affordability

Commitment Together ("PACT") program. Respondent receives a project-based subsidy

administered by NYCHA.

Respondent fied a pro se answer on October 24, 2023, which raised no defenses.

Respondent later obtained counsel and filed the instant motion to dismiss and leave to file an

amended answer.

LEAVE TO AMEND THE ANSWER

The branch ofthe motion seeking leave to interpose an amended answer is granted

pursuant to CPLR $3025(b), as leave to amend pleading should be freely granted in the absence

ofundue prejudice, and Petitioner has not cited such prejudice. See Herrero v. Highgate Hotels,

L. P., 21 3 A. D3d 15 5 (l't Dept 202 3). Therefore, the proposed amended answer is deemed served

and filed on March 24,2025, the date ofthis decision.

MOTION TO DISMISS

On a motion to dismiss pursuant to CPLR $3211(a)(7), the pleading must be afforded

liberal construction. The pleading survives dismissal as long as the facts, as alleged, "fit within

any cognizable theory". Leon v Martinez,-84NY 2d 83 (1994); see also Alden Global Value

Recovery Master Fund, L.P. v KeyBank N.A., 159 AD3d 618 (lst Dept 2018) (citing 219

Broadway Corp. v Alexander's Inc., 46 NY 2d 506 (1979) ("On a CPLR 93211(a)(7) motion to

dismiss for failure to state a cause ofaction, the complaint must be construed in the light most [* 2] 2 of 5

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favorable to the plaintiff and all factual allegations must be accepted as true"); see also EBC L

Inc. v Goldman Sachs & Co., 5 NY 3d I I (2005) ("whether a plaintiff can ultimately establish its

allegations is not part of the calculus in determining a motion to dismiss").

Respondent's motion to dismiss pursuant to CPLR $3211(a)(7) is based upon two

grounds; violation ofthe CARES Act 30-day predicate notice requirement, rendering the petition

fatally defective, and for failure to comply with the notice requirement(s) ofthe Violence

Against Women Act ("VAWA") (34 U.S.C. 912491).

The Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act") established

two eviction related requirements: first, (which applied for 120 days beginning on March 27,

2020),lhe CARES Act created a temporary moratorium against initiating a legal action against a

tenant to recover possession for nonpayment ofrent; second, (which commenced at the end of

the 120 day temporary moratorium with no expiration date), prohibits a landlord from requiring a

tenant to vacate a "covered dwelling" without first issuing a 30-day notice to vacate.

Section 4024 (c) ofthe CARES Act states that the: "lessor ofa covered dwelling unit

may not require the tenant to vacate the covered dwelling unit before the date that is 30 days

after the date on which the lessor provides the tenant with a notice to vacate". l5 USC

$9058(cX1). An apartment is subject to the protection of the CARES Act when it is "occupied

by a tenant pursuant to a residential lease... and in a covered property... [t]he term

"covered property" means any property that participates in a covered housing program (as

defined in section 41411(a) of the Violence Against Women Act of 1994 (34 U.S.C. 12491(a))

... or has a Federally backed mortgaged loan; or a Federally backed multifamily mortgage loan".

Section 9058(a)(2XAX4X5), [* 3] 3 of 5

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4- It is undisputed that respondent and petitioner pa(icipate in a Section 8 Housing program

administered by NYCHA, a covered program under the statute. Therefore, the subject premises

is a "covered property", and this proceeding is subject to the notice provisions ofthe CARES

Act.

The 30-day notice to vacate applies to this nonpayment proceeding, where the

petitioner/owner seeks either payment or srurender of the premises. Andrew Plaza LP v

Rodriguez, LY-310838-23/BX, unpublished (Civ. Ct. Bronx CW,8115/23)), HP Tyler's Bronx

HDFC, Inc. v De La Cruz, et al,LT-325449-24lBX unpublished (Civ. Ct. Bronx Cty U24/25),

2501 Hoffman Properties LLC v Robinson,LT-308333-23lBx, unpublished (Civ. Ct. Bronx Cty,

12128123). Accordingly, dismissal is warranted under CPLR 93211(aXl) based upon the

documentary evidence and under CPLR $3211(a)(7) for failure to state a cause ofaction because

the petition is based upon a non-amendable l4-day rent demand.

CONCLUSION

To state and maintain a cause ofaction for nonpayment ofrent, the petition must state the

facts upon which the proceeding is based. RPAPL $741(4). One ofthose facts is that a proper

rent was made as required by RPAPL 971 l(2)

The Petitioner's failure to comply with the 30-day notice to vacate renders the rent

demand defective. The failure to serve the VAWA notice, and failure to serve a proper predicate

notice are fatal defects (see Chinatown Apartments, Inc v Shu Cho Lam, 72 AD2d 532,532 [1'l

Dept 19791, affd,5l NY2d 786 [1980].) In light ofthe foregoing, the Respondent's motion is

granted, and the petition is dismissed without prejudice.

This constitutes the Decision and Order of the Court. [* 4] 4 of 5

FILED: BRONX CIVIL COURT - L&T 03/24/2025 12:57 PM INDEX NO. LT-337942-23/BX NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/24/2025

Dated: Bronx, New York March24,2025 HON ELIZABETI.I DONOGHUE J.H.C.

Hon. Ellzabetfi Donoqhue 'Judgq Fiousing Coirr

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