Lambert
Houses Redevelopment Co., Petitioner-Landlord,
against
Abiodun Jobi, Respondent-Tenant.
|
L & T 039411/2013
Jason Boroff & Associates, PLLC
305 Broadway, Suite 923
New York, New York 10007
Legal Aid Society
Bronx Neighborhood Office
260 East 161st Street, 8th Floor
Bronx, New York 10451
Javier E. Vargas, J.
Upon the foregoing papers and for the following reasons, the motion by Respondent
Abiodun Jobi ("Tenant") for, inter alia, leave to file an Amended Answer and for
summary judgment dismissing the instant nonpayment proceeding, is granted, and the
proceeding is hereby dismissed.
Since 2001, Tenant has resided in the subject Project-based Section 8
federally subsidized Department of Housing and Urban Development ("HUD") building,
known as the Lambert Houses East, located at 994 East 180th Street, Apt. 4F, in Bronx,
New York, and owned by Petitioner Lambert Houses Redevelopment Co. ("Landlord").
Tenant, whose sole source of income is Public Assistance from the New York
Department of Social Services, received a Section 8 Subsidy from the HUD Substantial
Rehabilitation Program (see 42 USC 1437), and her share of the rent amounted to
$312 per month as of her last recertification of March 1, 2012.
On November 1, 2012, Landlord allegedly personally served Tenant with the
First Annual Recertification Reminder Notice reminding her of the need to recertify her
family income and composition by March 1, 2013. The Second Recertification Reminder
Notice was served upon Tenant on December 1, 2012. Finally, Landlord served by
certified mail the Third Annual Reminder Notice/Notice of Termination to Tenant on
January 2, 2013. Those Notices properly warned Tenant that her failure to recertify
would permit Landlord to charge her the full market rent on the apartment of $1,423 per
month, effective March 2013. Apparently, Landlord also served fourth, fifth and sixth
Notices as well. Despite all these Notices, Tenant failed to recertify and her Section 8
Subsidy was terminated. Subsequently, on June 18, 2013, Landlord served Tenant with a
Ten-Day Notice of Termination demanding $5,380 in rent arrears, which represented
over four months of market rent in the amount of $1,423 per month. No payment was
received by Landlord and Tenant did not vacate.
As a result, by Notice of Petition and Petition filed July 15, 2013, Landlord
commenced [*2]the instant nonpayment summary
proceeding to recover rent arrears of $6,803, which accrued following the termination of
Tenant's Section 8 Subsidy. Although the Petition describes the subject apartment as not
subject to Rent Control or Rent Stabilization, but subject to the Section 8 HUD
"Regulations governing Substantial Rehabilitation Program," there is no allegation in the
Petition regarding Tenant's alleged lease violation by her failure to cooperate with the
annual recertification requirements. On July 19, 2013, Tenant filed a pro se Answer only
asserting that there were conditions in the apartment needing repairs.
However, she failed to appear and defaulted on the July 29, 2013 appearance
date, and a Final Judgment was entered in favor of Landlord and against Tenant in the
sum of $6,803. Thereafter, Tenant moved, pro se, to vacate the default Final Judgment.
Pursuant to a Stipulation of Settlement dated August 13, 2013, Tenant's motion to vacate
was granted only to the extent of vacating the prior Judgment, and staying execution of
the warrant to September 13, 2013 for Tenant to pay the new Final Judgment of rent
arrears of $9,757. A warrant of eviction was subsequently issued on September 12, 2013.
Two further Orders to Show Cause by the pro se Tenant resulted in Orders extending her
period to pay arrears then amounting to $12,630, to November 30, 2013.
In the meantime, Tenant obtained counsel, the Legal Aid Society, which
now moves, by Order to Show Cause dated February 18, 2014, for an order: (1) granting
leave pursuant to CPLR 3025(b) to deem a proposed Amended Answer filed; (2)
vacating all Judgments entered against Tenant because she was unlawfully charged the
full contract rent without being properly represented and terminated from the Section 8
Program; (3) granting summary judgment pursuant to CPLR 3212(e) on the First
Affirmative Defense dismissing the proceeding or, in the alternative, dismissing with
prejudice those arrears that exceed the amount that can lawfully be charged as Tenant's
share of the rent; and (4) staying execution of the warrant of eviction to afford her time to
pay any arrears so calculated. Tenant's Amended Answer interposes as an Affirmative
Defense that Landlord improperly terminated her Section 8 Subsidy in violation of the
applicable HUD Handbook and Federal Law, and counterclaims for reasonable legal
fees.
In support of her Motion, Tenant asserts that she entered into unadvisable
and one-sided stipulations of settlement because she was unrepresented at the beginning
stages of this proceeding. She additionally argues that Landlord's three Recertification
Reminder Notices and 30-day Termination Notice were not properly served upon her,
and were deficient in that they did not set forth information required by HUD,
specifically: the name and contact information and office hours of the person employed
at Landlord's property tasked with recertifying her. In opposition to the Motion, Landlord
argues that it complied with the HUD Multifamily Occupancy Handbook by properly,
timely and personally serving all the required Annual Recertification Reminder and
Termination Notices upon Tenant and, indeed, that it went out of its way by serving
additional fourth, fifth and sixth notices upon her, which she failed to heed. This Court is
unconvinced.
"When the owner of Project-based Section 8 units commences a
non-payment proceeding in Housing Court seeking a judgment for market rent based
upon the suspension or termination of a Section 8 subsidy, Housing Court has
jurisdiction to determine the propriety of the subsidy termination or suspension and the
market rent charges" (East Harlem Pilot Block Bldg. 1 HDFC v Cordero, 196
Misc 2d 36, 39 [Civ Ct 2003, Acosta, J.] see 1199 Hous. Corp. v McCartney,
[*3]171 Misc 2d 239 [AT 1st Dept 1997]). In order to
impose penalties on a tenant for failing to recertify her Section 8 Subsidy, an owner must
provide her with a number of very detailed notices by very specific deadlines as
mandated by the applicable HUD Regulations and Handbook (see Starrett City, Inc. v
Brownlee, 22 Misc 3d 38 [AT 2nd & 11th 2008] Lambert Houses Redevelopment
Co. v Huff, 35 Misc 3d 1215[A], 2012 NY Slip Op 50709[U] [Civ Ct 2012]).
The HUD regulations define exactly what information must be included in each notice,
detailing the annual recertification process for a Section 8 recipient's eligibility,
deadlines, and consequences of failing to recertify (see Clinton Towers Hous. Co. v Ryan, 26 Misc 3d
1229[A], *2, 2010 NY Slip Op 50305[U] [Civ Ct 2010]). The failure to comply
with these notice requirements invalidates any termination of a Section 8 Subsidy for
failure to recertify, and bars collection of market rent from a tenant in a project-based
subsidized apartment (see id.), thereby requiring dismissal of the proceeding (see Westbeth Corp. HDFC Inc. v
Ramscale Prod., Inc., 37 Misc 3d 13, 15 [AT 1st 2012]).
Relevant to the instant proceeding, HUD Handbook 4350.3 Rev—1,
Chapter 7, entitled: Recertification, Unit Transfers and Gross Rent Changes, requires an
annual recertification for recipients and provides for a series of four notices apprising the
tenant of, inter alia, the information needed, "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," "the location, days, and office hours that
property staff will be available for recertification interviews" (HUD Handbook, Ch 7,
¶ 7—7[B][2][b][2], [3]), and "[s]pecify[ing] 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" (id. at ¶
7—7[B][2][b][7], [B][4][b][2]). These Notices must also be timely; for instance,
the First Reminder Notice is required to be provided "at least 120 days prior to the
recertification anniversary date" (id. at ¶ 7—7 [B][2][a]). If the
tenant fails to respond to the First Reminder Notice within 30 days, the owner is required
to provide a Second Reminder Notice to the tenant between 90 and 60 days before the
anniversary date (id. at ¶ 7-7 [B] [3] [a]). If the tenant fails to respond to
that Notice, the owner must send a Third Reminder Notice "no later than 60 days prior to
the anniversary date" (id. at ¶ 7-7[B][4][a] see Lower E. Side I Assoc. LLC v
Estevez, 6 Misc 3d 632, 634 [Civ Ct 2004).
Applying these legal principles to the matter at bar, this Court finds that
Tenant has sufficiently established good cause to vacate the Judgment and dismiss the
proceeding as Landlord failed to comply with the Federal Regulations and HUD
Handbook in terminating her Section 8 Subsidy. Initially, there is no evidence in the
record that Landlord sent, or that Tenant received, the Initial Notice notifying her of the
Upcoming Recertification on March 1, 2013. Although the subsequent three Reminder
Notices properly instruct Tenant to mail all required documents for recertification to
Lambert Houses's address and state the consequences that would arise from her failure to
do so, they all neglected to include some of the information required by the HUD
Handbook. Specifically, the Notices fail to state the name of "the staff person at the
property to contact about scheduling a recertification interview, the contact information
for this person," and do not "give the location, days, and office hours" during which the
staff person would be available, as required by the HUD Handbook (id. at
¶¶ 7—7[B][2][b][2], [3] 7—7[B][3][b]
7—7[B][4][b][1]). Nor was the Third Reminder Notice, which properly declared
that Tenant would be charged "market rent," mailed in a timely fashion as it was mailed
by [*4]certified mail on January 2, 2014, one day late
from the required 60-days prior to the Recertification date (see Lower E. Side I
Assoc. LLC v Estevez, 6 Misc 3d at 635).
Given the nature of the defects, this Court holds that there was an improper
termination of Tenant's Section 8 Subsidy. Such an improper termination bars the
maintenance of this nonpayment proceeding to recover market rent from Tenant (see
1199 Housing Corp. v McCartney, 171 Misc 2d at 240). Consequently, since Tenant
has sufficiently shown that she unadvisedly waived a substantial meritorious defense, her
motion, insofar as it seeks to vacate all the Stipulations and the Final Judgment, and grant
her leave to amend her Answer, is granted. Upon considering her Affirmative Defense,
Tenant's motion to dismiss the Petition, is also granted, and the proceeding is hereby
dismissed. The foregoing constitutes the decision and order of the Court.E N T E
R:
Dated: May 23, 2014
Bronx, New YorkJ.H.C.
To:
Jason Boroff & Associates, PLLC
305 Broadway, Suite 923
New York, New York 10007
Legal Aid Society
Bronx Neighborhood Office
260 East 161st Street, 8th Floor
Bronx, New York 10451