New York City Housing Authority, Appellant, v. Viola McClinton, Respondent

OPINION OF THE COURT

Per Curiam.

Order entered June 17, 1998 modified by vacating the provision allowing for a postjudgment cure pursuant to RPAPL 753 (4); as modified, order affirmed, without costs.

Appeal from order entered October 27, 1998 denying renewal and/or reargument dismissed, without costs, as academic.

After due notice and a hearing, respondent’s tenancy was finally terminated by landlord New York City Housing Authority because of her failure to submit requisite information concerning her income and household composition. Subsequently, the Authority served a 30-day notice to vacate and commenced this holdover eviction proceeding. Civil Court, while granting summary judgment on the petition, afforded tenant a postjudgment opportunity to cure pursuant to RPAPL 753 (4) based upon tenant’s affidavit that “I have now complied in full” with the recertification/income verification requirements.

We do not agree that RPAPL 753 (4) is appropriately invoked here. This proceeding was not premised upon a correctable breach of tenant’s lease, but was brought to enforce an administrative determination that tenant was no longer eligible for continued occupancy because of her noncompliance with certain rules and regulations governing the tenancy (see, New York City Hous. Auth. v Williams, 179 Misc 2d 822 [App Term, 2d Dept]; North Waterside Redevelopment Co. v Flores, NYLJ, July 21, 1997, at 27, col 5 [App Term, 1st Dept]). While it is argued that Civil Court’s application of the statute was “procedural” only, what has happened, in substance, is that the court has effectively reinstated a tenancy previously terminated by the Housing Authority after exhaustion of the administrative .process. The Housing Authority, in the exercise of its adjudicatory function, retains the discretion to grant or withhold a “cure” in a given case, subject only to the more limited standard of review applicable to CPLR article 78 proceedings timely commenced in Supreme Court (see, e.g., Matter of Dukuly v Aponte, 204 AD2d 189). It is not for the Civil Court to judicially extend the tenancy by the application of RPAPL 753 (4) in holdover proceedings of this type.

So far as appears from the record, tenant did not challenge the Housing Authority’s final determination by way of CPLR article 78 review.

McCooe, J.

(dissenting). I respectfully dissent for the reasons stated in Thompson v 490 W. End Ave. Apts. Corp. (252 AD2d 430, 436 [1st Dept 1998]) which cites with approval the trial court’s decision in New York City Hous. Auth. (Red Hook E. Houses) v Williams (170 Misc 2d 963 [Civ Ct, Kings County 1996]). I disagree with the Appellate Term, Second Department’s reversal in New York City Hous. Auth. v Williams (179 Misc 2d 822) and the majority’s reliance on it. RPAPL 753 (4) (amended in 1982) should be “liberally construed.” (Nestor v McDowell, 81 NY2d 410, 414 [1993].) “In construing a statute, courts should not lose sight of the problem that the amendment was intended to remedy.” (Matter of Muller v New York State Div. of Hous. & Community Renewal, 263 AD2d 296, 305 [App Div, 1st Dept].) Noncompliance with the rules and regulations of the New York City Housing Authority by not timely furnishing financial data is a breach of an implied term of the lease curable under RPAPL 753 (4). (See, 923 Fifth Ave. Assocs. v Eisenberg, 191 AD2d 396 [1st Dept 1993]; Fairbanks Gardens Co. v Gandhi, 168 Misc 2d 128 [App Term, 2d Dept 1996].)

The order granting a postjudgment cure should be affirmed.

Parness, P. J., and Davis, J., concur; McCooe, J., dissents in a separate memorandum.