Fairview Hous., LLC v Wilson

[*1] Fairview Hous., LLC v Wilson 2012 NY Slip Op 52385(U) Decided on December 20, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 20, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., IANNACCI and LaSALLE, JJ
2011-1592 W C.

Fairview Housing, LLC, Respondent,

against

Katherine Wilson, Appellant.

Consolidated appeals from final judgments of the Justice Court of the Town of Greenburgh, Westchester County (Arlene Gordon-Oliver, J.), entered, respectively, May 4, 2011 and May 20, 2011, and from an order of the same court entered August 29, 2011. The final judgment entered May 4, 2011 awarded landlord possession and rent arrears of $5,058.78 in a nonpayment summary proceeding. The final judgment entered May 20, 2011 awarded landlord possession and attorney's fees in the sum of $1,340. The order entered August 29, 2011, insofar as appealed from, denied tenant's motion, in effect, to vacate the warrant.

ORDERED that the final judgment entered May 4, 2011 is affirmed, without costs; and it is further,

ORDERED that the final judgment entered May 20, 2011 is reversed, without costs, and the award therein to landlord of possession and attorney's fees in the sum of $1,340 is vacated; and it is further,

ORDERED that the order entered August 29, 2011, insofar as appealed from, is reversed, without costs, and tenant's motion, in effect, to vacate the warrant is granted.

In this nonpayment proceeding against a Section 8 tenant, no issue has been raised on appeal with respect to the May 4, 2011 final judgment awarding landlord possession and rent [*2]arrears of $5,058.78. Accordingly, that final judgment is affirmed.

The Justice Court erred in granting landlord the final judgment entered May 20, 2011, awarding landlord possession and attorney's fees in the sum of $1,340. Notwithstanding that landlord's House Rules, incorporated by reference into the lease, provide that tenant shall be responsible for attorney's fees as "additional rent," such fees may not be deemed additional rent as against a Section 8 tenant and may not be recovered against a Section 8 tenant in a summary proceeding (Spring Val. Homes Assn. v Logan, 2003 NY Slip Op 51224[U] [App Term, 9th & 10th Jud Dists 2003]; see Binghamton Hous. Auth. v Douglas, 217 AD2d 897 [1995]). Accordingly, the final judgment entered May 20, 2011, awarding landlord possession and attorney's fees of $1,340, is reversed and the award therein of possession and attorney's fees is vacated.

In our view, tenant's motion, in effect, to vacate the warrant, should have been granted. Under the particular circumstances of this case, including the fact that tenant produced a Department of Social Services' guarantee letter for the sum of $3,387.78 and money orders and agency checks for the balance of the $5,058.78 awarded in the final judgment entered May 4, 2011, and needed only a short delay for the Department of Social Services to reissue checks that it had canceled due to a computer error, the granting of a brief delay would have been appropriate (see Port Chester Hous. Auth. v Faison, NYLJ, Nov. 10, 1997 [App Term, 9th & 10th Jud Dists]). In light of the foregoing, and as the checks were subsequently reissued, the order entered August 29, 2011 is reversed and tenant's motion, in effect, to vacate the warrant is granted.

LaCava, J.P., Iannacci and LaSalle, JJ., concur.
Decision Date: December 20, 2012