In another case of relatively first impression, Richter Restrepo, PLLC successfully argued for dismissal of an illegal lockout matter in New York City Civil Court, where an administrative transfer was made in an emergency transitional housing facility operated by a private not-for-profit provider. Through a joint effort by Partners Peter M. Rivera, Esq., Juan C. Restrepo, Esq. and Associate Eoin O’Mahony, Esq. the Court sided with Respondent, The Bronx Parent Housing Network, Inc (BPHN) in holding that the new regulations under the Housing Stability Tenant Protection Act of 2019 (HSTPA) do not give licensees living in transitional emergency housing a right to possession and occupancy of their assigned living space, even if they have occupied said premises for longer than 30 days.

On June 1, 2020, in the matter of Jimenez v. 1171 Washington Ave, LLC and Bronx Parent Housing Network, 2020 N.Y. Misc. LEXIS 2394, 2020 NY Slip Op 50615(U) [Index No. LT-801167-20/BX], Hon. Diane E. Lutwak dismissed the petitioner’s claim, and upheld long standing precedent holding that licensees occupying temporary emergency housing operated by a not-for-profit under a contract with a New York City Agency, such as NYC’s Department of Human Resources Administration (“HRA”), lacked standing to sustain an illegal lockout claim, even after passage of the HSTPA. Petitioner’s counsel argued that the HSTPA, which amended the Real Property and Proceedings Law (“RPAPL”) § 711, created tenancy rights for “occupants” in possession for longer than 30 days, regardless of the transient nature of the housing, and therefore required the commencement of a summary proceeding for eviction. In her decision, Judge Lutwak notably upheld the existing law, citing that:

• The unlawful eviction provisions of NYC Admin Code § 26-521 “do not operate to change a license or other nonpossessory interest into a possessory interest” and “do not provide an avenue through which [an occupant] can be restored to possession,” citing Andrews v. Acacia Network (59 Misc3d 10, 70 NYS3d 744 [AT 2nd Dep’t 2018]).

• RPAPL § 711, as amended by the HSTPA, and which defines a landlord-tenant relationship, gave petitioner no recourse, since the statute “does not operate to convert a license into a possessory interest.”

• “A resident attestation signed by the petitioner was an enforceable and valid waiver of [tenancy] rights” where the petitioner’s license was so limited in scope and so highly regulated by HRA that it did not constitute the requisite “actual or constructive possession” needed to enforce one’s rights under the RPAPL, citing to, inter alia, Coppa v. LaSpina (41 AD3d 756, 839 NYS2d 780 [2nd Dep’t 2007]).

Additionally, and most notably, the Court found that the passage of the HSTPA, and the amended language to the RPAPL did not change existing precedent with regard to administrative transfers vetted by the overseeing governmental Agency in this type of highly regulated supportive transitional housing. The Court held that neither the plain language of the statute, nor its legislative history, provided grounds to convert the status of a transient occupant to one of a tenant with such broad rights that would satisfy an illegal lockout proceeding under the RPAPL. The Court cited Richter Restrepo’s thorough review of the legislative history of the HSTPA, as well as conducting its own due diligence, to find that nowhere in the history of the HSTPA, did the legislature intend to provide greater possessory rights to transient occupants or overturn any caselaw where administrative transfers were permitted. The Court correctly found that petitioner’s sole remedy, in disputing an administrative transfer, would be to request a post-transfer State Fair Hearing under 18 NYCRR Subpart 358-5.

To read the full Decision, click here

RICHTER RESTREPO, PLLC is a full-service real estate law firm, concentrating in the areas of community development, affordable housing, real estate, construction and litigation. If you have any questions regarding your commercial and residential landlord or tenant rights, do not hesitate to reach out to a member of our team for a free 30-minute consultation.

Published: 07/01/2022