Respondent moves for summary judgement in this nonpayment proceeding. Respondent argues three issues: (1) that a recent Housing Court decision in Clinton Towers Hous. Co. v Castillo (Civ Ct, NY County, Oct. 27, 2008, Kaplan, J., Index No. L & T 67412/2008) precludes petitioner's claim; (2) that petitioner's reminder notices directing respondent to recertify his income for continued eligibility for Section 236 assistance fail to comport with the United States Department of Housing and Urban Development (HUD) regulations and thus that the petitioner is not entitled to collect the market-rent amount alleged in the petition; and (3) that petitioner failed to serve a rent demand containing a good-faith estimate of the amount of rent due.

This court agrees with respondent that the Housing Court's decision in Clinton Towers precludes petitioner from relitigating the validity of the identical reminder notices as those petitioner issued here to respondent to increase his rent after respondent did not recertify. Collateral estoppel, or issue preclusion, "bars relitigation of issues of ultimate fact between the same parties, which issues have been determined by a prior, valid final judgment. The doctrine precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party. . . ." (73A NY Jur 2d, Judgments § 337 [footnote omitted].) Two prerequisites must be met before collateral estoppel applies: "There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling." (Buechel v Bain 97 NY2d 295, 303-304 [2001].) In [*2]Castillo, Judge Kaplan found that petitioner's reminder notices failed to comply with HUD regulations. Petitioner, who had a full and fair opportunity to contest the adequacy of the notices in Castillo, is precluded from relitigating the validity of its notices.

Were this court not to apply collateral estoppel to bar petitioner from seeking market rent based on the Castillo court's finding that petitioner's notices are defective, this court would still, as explained below, find Castillo persuasive and find them defective.

Petitioner's notices in this case are identical, except for dates and names, to those in Castillo. In Castillo, the court found that notices sent to the tenant did not comply with HUD regulations. According to the Castillo court, the notices failed to inform the tenant to recertify annually, to specify the days and office hours when the property staff would be available for recertification review, and to indicate the exact rent that respondent would be billed if the tenant failed to recertify. Petitioner's notices share with the notices in Castillo the same failures to comply with HUD regulations pertaining to the location, days, and office hours of the property staff's availability for recertification interviews, and the third reminder notice does not inform respondent of the specific amount of rent he would be required to pay if he failed to recertify.

Petitioner's HUD-prescribed lease with respondent provides that "the Landlord agrees to implement changes in the Tenant's rent or tenant assistance payment only in accordance with the time frames and administrative procedures set forth in the HUD's handbook, instructions and regulations related to administration of multifamily subsidy programs." (Ryan Aff. Ex. C. ¶ 4.f) A landlord's failure to provide all the required information in the notice reminders as mandated by the HUD Handbook prohibits it from maintaining a nonpayment proceeding based on the market rent for the premises. (Good Neighbor Apt. Assocs. v Rosario, NYLJ, July 9, 2008, at 26, col 1 [Civ Ct, NY County] [explaining that the landlord's failure to provide required information in each of the recertification notices prohibits it from terminating the tenant's subsidy and demanding fair-market rent]; Goldstein v Bush, 2001 WL 1602661, 2001 NY Slip Op 50016 [U], *2 [Civ Ct, Kings County, Sept. 25, 2001] [holding that a landlord's failure to specify a cutoff date in the reminder notices impedes the landlord from seeking market rent].) If the landlord does not comply with HUD's reminder-notice requirements, a nonpayment proceeding based on a tenant's failure timely to recertify must be dismissed. (Starrett City, Inc. v Brownlee, 22 Misc 3d 38, 40 [App Term, 2d & 11th Jud Dists 2008]; Lower E. Side I Assocs. LLC v Estevez, 6 Misc 3d 632, 636 [Civ Ct, NY County 2004].)

Respondent's summary judgment motion is premised on petitioner's failure to comport with HUD regulations. A landlord must send an initial notice and is responsible for sending subsequent reminder notices if a tenant fails to recertify after the initial notice. (See HUD Handbook ¶ 7-7 [B].) The HUD regulations define exactly what information must be included in each notice, detailing the annual recertification process, deadlines, and consequences of failing to recertify. [*3]

The initial notice must "refer to the requirements in the HUD model lease regarding the tenant's responsibility to recertify annually" and must specify the cutoff date. (HUD Handbook ¶ 7-7 [B] [1] [a] [1]-[2].) The first reminder notice must again refer to the lease requirements and cutoff date, and additionally provide the contact information for the individual conducting the recertification interview including the location and availability of that individual, a list of information and documents that the tenant should bring to the interview and warn that "if the tenant fails to respond before the recertification anniversary date, the tenant will lose the assistance and will be responsible for paying the...market rent." (HUD Handbook ¶ 7-7 [B] [2] [b] [1]-[7].) The second reminder notice "must provide all of the information given in the first reminder notice." (HUD Handbook ¶ 7-7 [B] [3] [b].) The third reminder notice requires the landlord to "provide the tenant with all the information given in the first reminder notice. (HUD Handbook ¶ 7-7 [B] [4] [b] [1].) Additionally, the third reminder notice requires that the landlord "[s]pecify the amount of rent the tenant will be required to pay if the tenant fails to provide the required recertification information by the recertification anniversary date and state that this rent increase will be made without additional notice." (HUD Handbook ¶ 7-7 [B] [4] [b] [2].)

Respondent's affidavit in support of his motion attaches petitioner's "Initial Reminder Notice" dated March 3, 2008; a "Second Reminder Notice" dated April 1, 2008; and a "Third Reminder Notice" dated May 1, 2008. (Ryan Aff. Ex. G.) Each of the three reminder notices fails to contain any reference to the HUD-prescribed lease relating to respondent's responsibility to recertify annually. (See HUD Handbook ¶ 7-7 [B] [2] [b] [1].) Each of the three notices fails to "give the location, days, and office hours that property staff will be available for recertification interviews." (HUD Handbook ¶ 7-7 [B] [2] [b] [3].) The third notice reminder fails to "specify the amount of rent the tenant will be required to pay if the tenant fails to provide the required recertification information by the recertification anniversary date." (See HUD Handbook ¶ 7-7 [B] [4] [b] [2].) The notices are inadequate because they fail to provide all the required information as mandated by the HUD Handbook. This Court finds that these inadequacies bar petitioner from collecting market rent.

Respondent argues that he need not pay in this proceeding the remaining alleged rental arrears in the petition because petitioner supposedly failed to serve a rent demand containing a good-faith estimate of the amount of rent due. In Schwartz v Weiss-Newell (87 Misc 2d 558, 561 [Civ Ct, NY County 1976]), the court found that "[a] proper demand for rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of the period for which such claim is made. At a minimum, the landlord or agent should clearly inform the tenant of the particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each period." This court has observed that "[t]he demand for rent need not demand the precise sum due but, rather, claim in good faith the perceived amount of rents and periods due." (Rota Holding Corp. No. 2 v Shea,21 Misc 3d 1127 [A], 2008 NY Slip Op 52250 [U], *2 [Civ Ct, NY County, Oct. 23, 2008].) Here, as in Rota,petitioner, as detailed in petitioner's account ledger, gave respondent a good-faith approximation of what he supposedly owes. (Saketkhou Aff. Ex. 1.) Similarly, petitioner gave respondent the time periods [*4]of the alleged rental arrears. Respondent does not contest petitioner's breakdown of the rent respondent allegedly owes according to petitioner's account ledger, and petitioner gave respondent detailed assertions of the amount of rent and the periods for which they are due.

Petitioner is seeking to recover market rent in the amount of $715 a month from May 2009 through July 2009. Petitioner also seeks an alleged balance of $487.44 for April 2009, as adjusted by petitioner to reflect the market-rent rate. The total amount owed as alleged by petitioner is $2692.44. Petitioner separates the total amount into the sum of $1402.00 allegedly owed for market rent and $1290.44, which includes $270.00 in late fees, through July 1, 2009, for additional rent arrears. Respondent argues that his rent during the period covering April 2009 is $461.00 and that the rent for the period from May 2009 through July 2009 is $539.00.

Because petitioner's notices fail to comport with HUD regulations, petitioner may not collect market rent during the period that respondent is alleged to have failed to recertify. To the extent that there might be a further claim for rent arrears in the amount of $1020.44 (less the late fees) for the period from May 1, 2009, through the present, this proceeding is adjourned for trial to March 11, 2010.

This opinion is the court's decision and order.

J.H.C.