MELILLO CTR. v. DENISE B.

Stein & Schonfeld, Garden City (Robert Schonfeld of counsel), for petitioner. Nassau/Suffolk Law Services Committee, Inc., Hempstead (Jane Reinhardt of counsel), for respondents.

OPINION OF THE COURT

JOEL K. ASARCH, J. October 1, 2003, counsel stipulated that the "sole remaining issue for determination by the court is whether or not the judgment should be set aside because the stipulation on which it is based is invalid due to the respondent's failure to recognize an alleged defense to the petition." Counsel stipulated that there were no other issues to be determined by the court. A briefing schedule was agreed to and the matter was thereafter submitted for the court's determination. Matter of Diana C. This holdover proceeding was commenced on or about September 22, 2003 by service of a notice of petition and petition upon the respondent. The petitioner seeks to recover possession of a residential apartment located in North Merrick, Nassau County, New York, and licensed to the respondent pursuant to an admission agreement dated March 28, 2003. This agreement, as with Denise B., provides that the respondent "will participate in all mental health, substance abuse and medical treatment as determined by all professional staff involved in [her] case. I understand that mental health treatment by a New York State Office of Mental Health licensed program is required. The level of treatment intervention and frequency of visits will be determined by the treatment provider." The petition contends that the respondent violated terms of the licensing agreement in that she failed to participate in treatment by all professional staff involved in her case and in having guests stay over for more than seven days. A written notice to quit was served upon the respondent and this holdover proceeding ensued. The respondent answered the petition, raising as an affirmative defense that "the provision of supported housing cannot be conditioned upon participating in all mental health, substance abuse or medical treatment as determined by all professional staff involved in the licensee's case." The petitioner has moved for partial summary judgment dismissing this defense. The respondent seeks summary judgment dismissing the petition on the basis of this defense. However, no notice of cross motion was served. (CPLR 2215.) The court may, in searching the record, grant such judgment if appropriate to a nonmoving party. (CPLR 3212 [b].)

Discussion of the Law

It is often useful to take a step back and assess the ramifications of a particular case. Here, the consequences are potentially treatment as required by all of the petitioner's professionals during this time period, the court will entertain an application to further extend the stay against enforcing the warrant. (See, e.g., Blalock v Amityville Senior Dev. Corp., NYLJ, Nov. 12, 1999, at 36, col 3 [ED NY].) The petitioner has indicated throughout this proceeding that its desire was to assist the respondent in becoming more self-sufficient through treatment— the very goals of the McKinney Act. Accordingly, the court will leave this option open to the respondent to consider. However, the court cannot say that this is not one of the "most severe" cases wherein termination of the license is appropriate. Unless extended as aforesaid, effective May 1, 2004, all stays granted herein are vacated, and the eviction of the respondent may proceed. In the matter of petitioner against Diana C., partial summary judgment is granted and the first affirmative defense that "the provision of supported housing cannot be conditioned upon participating in all mental health, substance abuse or medical treatment as determined by all professional staff involved in the licensee's case" is dismissed. [1] Coalition for the Homeless, May 2003. [2] Nassau/Suffolk Coalition for the Homeless, taken from Shelter Plus Care application filed by Office of Mental Health (OMH) and dated July 2, 1993. [3] The license agreement provided that the respondent must comply with the following requirement: "Participate in all mental health, substance abuse or medical treatment as determined by all professional staff involved in my case. I understand that mental health treatment by a licensed professional is required."