Supreme Court, Appellate Term, Second Department, December 3, 2008

APPEARANCES OF COUNSEL

Gutman, Mintz, Baker & Sonnenfeldt, P.C., New Hyde Park (Joseph S. Goldsmith of counsel), for appellant. Camba Legal Services, Brooklyn (Jordan Maxwell Wolbrum of counsel), for respondent.

Memorandum.

Order affirmed without costs.

Landlord commenced this nonpayment summary proceeding to recover rent arrears which accrued following the termination of tenant's Section 8 subsidy after tenant allegedly failed to cooperate with the annual recertification requirements. A final judgment was entered in favor of landlord upon tenant's failure to answer. Thereafter, tenant moved, pro se, to vacate the default final judgment. Pursuant to a stipulation of settlement dated August 14, 2002, tenant's motion to vacate was granted only to the extent of staying execution of the warrant to September 18, 2006 for tenant to pay rent arrears of $17,119.55. Tenant subsequently obtained counsel, who moved to vacate the stipulation and default final judgment, and to dismiss the petition. The court below granted tenant's motion on the ground that the first and third recertification notices were deficient in that they did not set forth information required by the Department of Housing and Urban Development (HUD), specifically, the name and contact information of the person employed at the property to recertify tenant and the rent tenant would be obligated to pay absent a recertification of income eligibility. Landlord appeals and we affirm.

At all relevant times, United States Department of Housing and Urban Development Handbook 4350.3 REV-1 (Occupancy Requirements of Subsidized Multifamily Housing Programs [Handbook]), issued in 2003, required an annual recertification of a Section 8 recipient's eligibility for a subsidy and provided for a series of notices apprising the tenant, inter alia, of "the name of the staff person at the property to contact about scheduling a recertification interview, the contact information for this person, and how the contact should be made" (Handbook ¶ 7-7 [B] [2] [b] [2]) and, in the third notice, "[s]pecify[ing] the amount of rent the tenant will be required to pay if the tenant{**22 Misc 3d at 40} fails to provide the required recertification information by the recertification anniversary date" (id. at ¶ 7-7 [B] [4] [b] [2]). Landlord's first notice, which stated that tenant was to contact a "staff member" at landlord's "Management Office," and the third notice, which stated that tenant would be charged a "market rent," did not comply with the Handbook's aforesaid requirements (see e.g. Good Neighbor Apt. Assoc. v Rosario, NYLJ, July 9, 2008, at 26 [Civ Ct, NY County]; Lower E. Side I Assoc. LLC v Estevez, 6 Misc 3d 632, 635 [Civ Ct, NY County 2004]).

Given the nature of the defects, we are of the opinion that there was an improper termination of the Section 8 subsidy. Such an improper termination bars the maintenance of a nonpayment proceeding (Bedford Gardens Co. v Rosenberg, NYLJ, Mar. 27, 1998, at 31 [App Term, 2d & 11th Jud Dists]; Starrett City v Hamilton, NYLJ, Feb. 21, 1991, at 27 [App Term, 2d & 11th Jud Dists]; see also 1199 Hous. Corp. v McCartney, 171 Misc 2d 239 [App Term, 1st Dept 1997]). Consequently, as tenant showed that he inadvisably waived a substantial meritorious defense, as well as an excuse for his default, his motion to vacate the stipulation and default final judgment and to dismiss the petition was properly granted.

Weston Patterson, J. (dissenting and voting to reverse the order, deny tenant's motion to vacate the stipulation of settlement and the underlying default final judgment, and to dismiss the petition, and remand the matter for a hearing to determine whether tenant complied with the stipulation's provision requiring him to prove timely submission of recertification documents, in the following memorandum). In my view, landlord's recertification notices sufficiently complied with the HUD Handbook. Accordingly, I respectfully dissent.

Although the HUD Handbook guidelines require that the first recertification notice provide, among other things, "the name of the staff person at the property to contact about scheduling a recertification interview" (Handbook ¶ 7-7 [B] [2] [b] [2]), the corresponding sample notice reads, in relevant part: "To complete our review of your income and family composition, you must meet with (Resident Manager, Occupancy Clerk, etc.) at (place of interview) and supply the required information." (Handbook exhibit 7-2.) While I recognize that the sample's language is not controlling, it is, at the very least, helpful in interpreting the guideline's meaning. Reading the{**22 Misc 3d at 41} guideline together with the sample notice, I conclude that a landlord is not required to identify a specific individual by name in order for the notice to be sufficient. To the contrary, as long as the notice sufficiently apprises the tenant of the title of the staff person or, in this case, the management office, to be contacted, the notice should be deemed sufficient. Indeed, to require landlord—which oversees a 46-tower rental complex with numerous employees capable of performing Section 8 recertifications—to identify by name the employee to be contacted is not only impractical, but presents a burden to tenant, who is limited to contacting a single employee.

Landlord's third notice apprising tenant of the consequences of noncompliance with recertification is similarly sufficient and reflects the language contained in the sample notice. While the Handbook's guideline (id. at ¶ 7.7 [B] [4] [b] [2]) requires, in part, the third notice to "[s]pecify the amount of rent the tenant will be required to pay if the tenant fails to provide the required recertification information" the corresponding sample reads, in relevant part:

"If you do not respond before (insert recertification anniversary date), paragraph [15 . . . or . . . 14] of your lease gives us the right to terminate your assistance and charge you the ( . . . insert type of rent, either . . . market rent, contract rent or . . . 110% of BMIR rent) of $____. (insert rent the tenant will be required to pay) . . . ."

By listing "market rent" as an example of the amount of rent to be charged upon termination, the sample notice suggests that landlord's use of "market rent" in this case was proper.

Even assuming the notices in this case did not literally follow the language of the Handbook's guidelines, tenant's due process rights were not compromised. Tenant was fairly apprised of the contact information for recertification and the proposed increase in rent, and never denied in his affidavit that he received the notices. Indeed, tenant admitted receipt of the third notice and entered into a binding stipulation of settlement—the terms of which were explained to him by the court—directing him to complete recertification by August 24, 2006 and permitting a readjustment of arrears upon submission of proof that tenant's recertification documents were submitted timely. Tenant failed to comply and cannot now complain that his due process rights were violated.

Accordingly, I vote to reverse the order of the court below, deny tenant's motion to vacate the stipulation of settlement and{**22 Misc 3d at 42} the underlying default final judgment and to dismiss the petition, and remand the matter for a hearing to determine whether tenant complied with the stipulation's provision requiring him to prove timely submission of recertification documents.

Pesce, P.J., and Rios, J., concur; Weston Patterson, J., dissents in a separate memorandum.