| Emerald Lofts LLC. v Echevarria |
| Decided on May 30, 2025 |
| Civil Court Of The City Of New York, Kings County |
| Cohen, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the printed Official Reports. |
Decided on May 30, 2025
Emerald Lofts LLC., Petitioner
against Guadalupe Echevarria, Respondent, "Doe #1" and/or "Doe #2", Respondent(s)-Undertenant(s). |
Index No. LT No. 320752-24
Hannah Cohen, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent's motion to dismiss pursuant to CPLR 3211(a)(1), (a)(7), and ensuing cross motion to amend and ensuing opposition and reply.
Papers NumberedNotice of Motion 1
Cross Motion 2
Opposition/Reply 3
Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:
Petitioner commenced this holdover proceeding in July 2024 after service of a 90 day notice of termination. Petitioner alleged that the premises is not subject to rent regulation as 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 is exempt from the Good Cause Eviction Law, herein ("GCEL") that went into effect on April 20, 2024. Respondent [*2]submits copies of certificate of occupancy and deeds for 347-A and 345-A which each contain 6 units and is 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 RPL 216. As petitioner has failed to state whether the premises is exempt from Good Cause Eviction Law, respondent seeks dismissal.
In opposition petitioner cross moves to amend the petition to state that the premises is not subject to the Good Cause Eviction Law pursuant to RPL 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 ad notice of petition does require notice as to whether the premises is covered or is exempt from the GCEL and seeks to amend the petition and notice of petition pursuant to CLR 2001 and 3025(b).
Respondent in opposition/reply argues that respondent who has section 8 through a housing voucher program, does not live in 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 Mut. Life Ins. Co. of NY,
On a motion to dismiss pursuant to CPLR 3211(a)(7) a court must determined 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 Village Inc., v Zimmerman,
GCEL RPL 214(5) states that no tenant may be evicted except for good cause except a "unit on or within a housing accommodation where such unit is otherwise subject to regulation of rent 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 date that Good Cause Eviction Law (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. NY Real Property Law § 216; NY RPAPL § 741.New York's Good Cause Eviction Law (GCEL) was enacted on April 20, 2024 (L 2024, ch 56, part HH). The statute imposes several new notice provisions obligating landlords to state if the housing accommodations are subject to Good Cause in lease offers and pre-eviction notices (id. at §§ 2-5). While these notice requirements were not phased in until August 18, 2024, one hundred twenty days after the effective date of the statute (L 2024, ch 56, 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, part HH, § 7). This includes § 1 of GCEL, which adds Article 6-A to the Real Property Law (RPL) and provides that a GCEL-covered tenant can only be removed from possession based on one of the Good Cause grounds enumerated in RPL 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 RPL 216). See (QN St. Albans Holdings LLC v. Sands,
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 (hereinafter "RPL") § 216. (L 2024, ch 56, part HH, § 1). Section 3 of the statute which adds § 231-C to the RPL. (L 2024, ch 56, part HH, § 3). RPL § 231-C requires landlords "append to or incorporate into any ... petition pursuant to section seven hundred forty-one of the real property action and proceeding 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, part HH, § 3[1]). Section 5 of the GCEL amends § 741 to add two new subdivisions, 5-a and 5-b. (L 2024, ch 56, 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." (See RPL § 216; QN St. Albans Holdings LLC. v. Sands,
Respondent seeks dismissal per 3211 (a)(1) (7) for failure to comply with GCEL requirements. Petitioner in response to respondent's motion to dismiss, cross-moved to amend their petition to comply with RPAPL § 741(5)(a) and (b). A party may seek leave to amend its pleadings at any time. (CPLR § 3025[b]). Permission to amend pleadings should be "freely given" absent prejudice or surprise resulting directly from the delay. (Edenwald Contracting Co., Inc. v. City of New York,
Court will permit petitioner to amend the holdover petition to comply with Good Cause Eviction Law (GCEL) requiring petition to state whether premises were subject to GCEL and, if exempt, 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. NY CPLR § 3025(b); NY RPAPL § 741(5)(a) and (b).See Lau v. Zheng,
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 New York,
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 cross motion to amend is granted.
Respondent's motion to dismiss is granted.
This constitutes the decision and order of this court.
Dated: May 30, 2025Brooklyn, New York
Hannah Cohen, J.H.C.