HP Tyler's Bronx HDFC, Inc. v. De La Cruz

2025 NY Slip Op 30376(U)

• Court: Civil Court Of The City Of New York, Bronx County
• Decided: January 24, 2025
• Docket: Index No. LT-325449-24/BX
• Status: Unpublished

Opinion

HP Tyler's Bronx HDFC, Inc. v De La Cruz 2025 NY Slip Op 30376(U) January 24, 2025 Civil Court of the City of New York, Bronx County Docket Number: Index No. LT-325449-24/BX Judge: Bryant F. Tovar 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. Civil Court of the City of New York Index # LT-325449-24/BX County of Bronx _ _ _ _ _ _ _ _ _ 1111111111111111111111111111111111111111111111111111 HP TYLER'S BRONX HDFC, INC, AS NOMINEE FOR TY- LER'S Decision / Order BRONX,LLC, Petitioner(s) -against- JOSEFINA DE LA CRUZ; "John" "Doe"; "Jane" "Doe" Respondent(s)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed 1, 3-4 Answering Affidavits/ Affirmations ________ Reply Affidavits/ Affirmations ________ Memoranda of Law 2 Other 5-13

Upon the foregoing cited papers, the Decision/ Order on the motion is granted for the following reason(s):

BACKGROUND AND PROCEDURAL HISTORY

This is a non-payment proceeding wherein HP Tyler’s Bronx HDFC, Inc. as Nominee for

Tyler’s Bronx LLC (“Petitioner”), sought rent arrears for $5212.00 for the period of January

2021 to July 2024 from Josefina De La Cruz ("Respondent") pursuant to a written lease between

the parties for rental of Apartment # 3 ("subject premises") within 934 East 225th Street, Bronx,

New York, 10466 (“subject building”). According to the allegations in the petition the subject

premises are governed by the rent stabilization code with an additional subsidy administered by

the New York City Housing Authority (“NYCHA”), which are subject to the rules of Federal

Section 8 housing. The respondent filed a pro se answer on July 26, 2024 alleging the following

defenses: The rent or part of the rent has already been paid to the petitioner; there are or were

conditions in the apartment and/or the building house which the petitioner did not repair and/or

services which the petitioner did not provide (NY St Cts Elec Filing [NYSCEF] Doc No. 4, an-

swer (self-represented).

.

[* 1] The respondent now represented by counsel moves for dismissal of the proceeding pursu-

ant to CPLR § 3211 (a)(7) for failure to state a cause of action, in that the petitioner failed to

comply with the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), and for

failure to comply with the Violence Against Women Act (“VAWA”) (34 U.S.C. § 12491). In the

alternative, the respondent moves for leave to amend the pro se answer. The petitioner has not

filed opposition to the respondent’s motion.

LAW AND ITS APPLICATION

VAWA provides housing protections to victims of intimate partner violence, which in-

cludes domestic violence, dating violence, sexual assault, and stalking. VAWA protects individ-

uals from being denied or losing public housing or rental housing assistance due to incidents or

intimate partner violence against them. VAWA protects people from intimate partner violence,

which the law cannot be construed or interpreted to allow for a denial or termination in the guise

of “good cause”.

The relevant portions of 24 CFR §5.2005(a) of VAWA state:

“A covered housing provider must provide to each of its applicants and each of its tenants the notice of occupancy rights and the certi- fication form as described in this section:…the notice required by (a)(1)(i) of this section and certification form required by para- graph (a)(1)(ii) of this section must be provided to an applicant or tenant no later than at each of the following times: (i) At the time the applicant is denied assistance or admission under a covered housing program; (ii) At the time the individual is provided assis- tance or admission under the covered housing program; (iii) with any notification of eviction or notification of termination of assis- tance…”

[* 2] Accordingly, the petitioner's failure to serve the VAWA notice, and certification form

renders this proceeding dismissible (see Rahman v Lewis, 84 Misc. 3d 720, 723 [Civ Ct Bronx

Cty 2024]).

Section 4024 of the CARES Act, entitled "Temporary Moratorium on Eviction Fil-

ings", established two eviction related requirements: First, which applied for 120 days beginning

on March 27, 2020, created a temporary moratorium against initiating a legal action against a

tenant to recover possession for nonpayment of rent; 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 (30-Day

notice to vacate).

The 30-day notice to vacate applies to this non-payment proceeding where the land-

lord seeks either payment or surrender of the premises. This court adopts and follows the anal-

yses set forth in Arvada Vil Gardens LP v Garate (529 P 3d 105 ,2023 CO 24 [Colorado Sup Ct

May 15, 2023]) and Sherwood Auburn ,LLC v Pinzon ( 24 Wash App 2d 664 ,521 P 3d 212 [

Wash Court of Appeals Dec 5, 2022 ], app den, 1 Wn 3d 1005 ,526 P 3d 848 [Wash Sup Ct

April 5, 2023 ]). Accordingly, dismissal is warranted under CPLR§ 3211(a)(1) based on docu-

mentary evidence and under CPLR § 3211(a)(7) for failure to state a cause of action because the

petition is based on a non-amendable,14-day rent demand.

CONCLUSION

The failure to serve the VAWA notice and certification form with the petition is a fatal de-

fect (see Chinatown Apartments, Inc. v Chu Cho Lam, 72 AD2d 532, 532 [1st Dept 1979], affd, 51

NY2d 786 [1980]). Further petitioner’s failure to comply with 30-day notice to vacate renders the

rent demand defective. Accordingly, this constitutes the decision and order of this court.

[* 3] Date: January 24, 2025 ____________________________________________ BX-HOUSING-350 , 1/27/2025, 3:48:16 PM

Hon. Bryant F. Tovar Housing Court Judge

ENTERED January 24, 2025 Bronx Housing Court

[* 4]