Cooper v New York City Hous. Auth.

[*1] Cooper v New York City Hous. Auth. 2006 NY Slip Op 51874(U) [13 Misc 3d 132(A)] Decided on October 2, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 6, 2006; it will not be published in the printed Official Reports.

Decided on October 2, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1579 Q C.

Zev Cooper AND DALIA BEHAR-COOPER, Respondents,

against

New York City Housing Authority, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Stephen S. Gottlieb, J.), entered June 20, 2005. The order, insofar as appealed from, upon granting reargument, adhered to the court's prior determination denying defendant's motion for summary judgment.

Order, insofar as appealed from, reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

As relevant to this appeal, this action was commenced to recover Section 8 assistance payments allegedly owed for two tenants, Hattan and Shamilova. On its motion for summary judgment, defendant established that plaintiff Behar-Cooper,
Hattan's landlord, was notified on February 8, 2000 that Hattan's apartment had failed inspection based on specified conditions and that the subsidy would be terminated effective March 1, 2000 unless Behar-Cooper notified defendant that the conditions were corrected and the corrections were inspected and approved. When defendant heard nothing from Behar-Cooper by March 1, 2000, the subsidy was suspended. In opposition, Behar-Cooper failed to show that the conditions were corrected or that the corrections were approved. Thus, defendant was entitled to summary judgment dismissing the cause of action seeking to recover subsidies for the Hattan unit for the period beginning March 1, 2000.

Defendant was similarly entitled to summary judgment with respect to plaintiff Zev Cooper's cause of action to recover subsidies for the Shamilova unit. In support of its motion, [*2]defendant established that the Shamilova subsidies were paid through November 2002 and that, in November 2002, Shamilova transferred to another apartment. Defendant further showed that Shamilova's lease had expired in March 2002 and that a holdover proceeding to evict her was commenced in April 2002. In opposition to defendant's motion, plaintiff Cooper claimed that Shamilova left her possessions in the unit until mid-December 2002. Cooper's assertion was insufficient to raise a triable issue with respect to his claim for subsidies for December 2002. Under the terms of the assistance contract, defendant was obligated to make payment "only for the period during which the contract unit is leased and occupied by the Family...". In December 2002, the unit was not "leased and occupied" by Shamilova within the meaning of the Section 8 contract, and defendant cannot be held liable for the December 2002 subsidy on the ground that the tenant may have failed to timely remove her furniture. Cooper's remedy, if any, lies against Shamilova for her alleged failure to remove her possessions until mid-December 2002 (see generally Niagara Frontier Transp. Auth. v Euro-United Corp., 303 AD2d 920 [2003]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.