Bay Towers Co. v Hankinson

[*1] Bay Towers Co. v Hankinson 2008 NY Slip Op 52594(U) [22 Misc 3d 1103(A)] Decided on December 15, 2008 Civil Court Of The City Of New York, Queens County Birnbaum, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 5, 2009; it will not be published in the printed Official Reports.

Decided on December 15, 2008
Civil Court of the City of New York, Queens County

Bay Towers Company, Petitioner

against

Mary Hankinson, Respondent



62159/07

Ronni D. Birnbaum, J.

Petitioner brings this nonpayment proceeding to recover rental arrears for apartment 13L located at 320 Beach 100th Street, Rockaway Park, New York. Respondent is a long term tenant in these premises that are part of the Mitchell Lama program. She receives the benefit of a United States Department of Housing and Urban Development (HUD) project based subsidy administered by the petitioner. Petitioner terminated the subsidy resulting in the demanded fair market rent arrears. Respondent defends on the ground that she was unlawfully terminated.

Based upon the credible testimony and evidence adduced at the trial the court makes the following findings of fact and conclusions of law. Respondent moved into the subject premises August 1, 1988. Each year, pursuant to the rules and regulations of HUD, the tenant is obligated to recertify her household composition and total household income.Respondent's anniversary date to recertify is December 1st. This requires the submission of proof of income of the tenant and occupants. The office manager, Kenya Taylor notified respondent by letter dated November 17, 2006 that she needed to submit the current occupation status of respondent's granddaughter, Erica, by November 22, 2006 to complete her recertification. Failure to do so would result in respondent being responsible to pay the contract rent of $812. On November 21, 2006 respondent provided Erica's pay stub for her part time job. Ms. Taylor claims that Ms. Hankinson refused to sign the completed recertification that included Erica's income. Ms Hankinson asserts that the recertification was not signed because it was never presented to her for signature. On December 4, 2006 respondent was notified that her rent would be increased. That same date Ms. Taylor sent a second letter notifying respondent that the subsidy would be terminated effective January 1, 2007.[FN1] When respondent met with management she was told her rent would be the fair market rent of $1,020 because of the added income brought into the household by her granddaughter. When Ms. Hankinson initially asked for Erica to be added to the family composition she did not realize the implications. Respondent felt she couldn't afford that rent and did not want her granddaughter added to the family composition. In a letter to [*2]petitioner, dated December 15, 2006, Ms. Hankinson wrote that although her granddaughter Erica Hankinson was not a current resident she was requesting that Erica be given succession rights to the apartment. Respondent testified that she did not truly understand the full meaning of the term "succession rights". She needs Erica's assistance due to her medical conditions and testified that Erica would come one or two days per week or an average of seven to eight days per month. Respondent testified that since May 2005 Erica has been living at Dayton Towers at 8400 Shorefront Parkway, Far Rockaway, NY Prior to May 2005 Erica would spend her time between her mother's and grandmother's apartments. Theresa, Erica's mother and respondent's daughter, lives in another apartment in Bay Towers.[FN2] Erica was previously included in the family composition in Theresa's lease.

Bay Towers processes two different subsidies. These are the Rent Assistance Program (RAP) and the National Housing Act §236 (12 U.S.C . §1715z-1) both of which are subject to HUD regulations. In this building there are seventy five RAP subsidies given to those households with the lowest income. The balance of the rent subsidies are administered under §236. As a result of respondent's December 15, 2006 letter, representing that Erica did not permanently reside with her, Ada Rodriguez in management processed aninitialcertification for a RAP subsidy. Ms. Hankinson completed the necessary documents and restated her family composition as one person. Ms. Rodriguez approved the RAP certification. Ms. Hankinson and Ms. Rodriguez signed off on the certification February 1, 2007 with an effective date of December 1, 2006. The new contract rent was $812 among which tenant's share was $650 and the assistance payment was $162. On February 14th, 2007, Ms. Taylor, from management, notified respondent that she was no longer eligible for a two bedroom unit with subsidy as her family size had decreased. She was required to either move to a one bedroom within thirty (30) days or, if she chose to remain, be required to pay the fair market rent for the apartment in the amount of $1,020. Respondent was to contact the office manager by February 21, 2007 to discuss the matter further. On February 27th, 2007 Ms. Ketay, the property manager, wrote to respondent that a transfer "must be done immediately unless you put your granddaughter on the lease and include her income if she is in fact residing in your apartment." On March 13, 2007 Ms Ketay wrote,

You are required to recertify annually by October 10th each year

for a December 1st recertification. Due to the fact you did not recertify

timely, you were no longer eligible to receive RAP assistance and therefore you go to market rent. The excess rent is the difference you are

charged for each month that you do not recertify and you are required to

pay it until you complete and sign the recertification. You completed

and signed the recertification on February 1, 2007, therefore, effective [*3]

2/1/07 the excess rent will no longer be charged to your account. On

this recertification you changed the family composition by removing

your granddaughter as an occupant of the apartment. February 14, 2007

a letter was sent to you advising you that it is mandatory for you

to transfer as per the rules and regulations of HUD. We are required to give

you thirty (30) days notice of transfer. You must transfer by April 1, 2007 in

order for you to remain eligible to receive a subsidy. If you do not transfer

by April 1st your rent will go to market and will be $1,020.00 per month

This letter is replete with misstatements. At this time respondent had been approved for a new RAP subsidy; it was not a recertification of her prior subsidy. The subsidy was effective December 1, 2006 resulting in no lapse of rental assistance. On March 29, 2007, Ms. Hankinson responded that she didn't feel she should have to relocate prior to her recertification date. It would be a hardship to do so because of her medical condition and attached a letter from her neurologist. She asked if petitioner would provide the physical labor necessary for her to move to a new apartment.

On April 2, 2007 Bay Towers wrote respondent that her subsidy was terminated as of April 1, 2007. Respondent was also informed that she owed excess rent for November 2006 through January 2007 which was clearly in error since she had been approved for a rent subsidy during that time period. On April 4, 2007 Hankinson replied, that she did not owe any excess rent. As to the transfer, Ms. Hankinson wrote,

HUD also mandates that I be informed of a unit in writing [within a set time]

that a one bed room unit has been secured. In addition, I have not been informed

where in the complex I would be moving to, nor have I been afforded the

opportunity to inspect the unit, if any.

When I spoke with Ms. Taylor February 16th, 2007 I made mention that it would

be almost physically impossible for me to move because of my physical problems.

At this time, Ms. Taylor only mentioned that she would try to make it a lateral

move; that is on the same floor. The move has to be conducive to my well being.

With regard to your last paragraph, I do not know what is or isn't available in

this Development. How can I move if I haven't been informed where I am

moving to, and haven't been given the opportunity to inspect the apartment?

You did not inform me as per HUD requirements. Therefore , you cannot

hold me liable for an increase in rent.

She concluded the letter requesting a meeting to discuss the matter further. Medical documentation was attached including a letter from Dr. Weinberg a neurologist, stating that respondent "suffers from cervical and lumbar disease which limits her ability to lift, bend and walk." It was his opinion that respondent was not capable of packing her belongings. On April 30, 2007 the rent demand was served upon the respondent and on May 5, 2007 the petition and [*4]notice of petition were served upon respondent. Petitioner seeks fair market rent arrears for March 2007 through May 2007 at $1,020 per month and a balance of $268 for February 2007. At trial, both parties stipulated that respondent had recertified as of December 1, 2006.

On May 14, 2007 Ms. Ketay responded to Ms. Hankinson's letter of April 4, 2007 and acknowledged that respondent was never informed of a specific apartment for the transfer. On May 20, 2007 respondent replied that she was entitled to be notified of the location of the available apartment and its date of availability. On May 31, 2007 Ms. Taylor wrote to respondent requesting that she contact the office by June 1, 2007 regarding the transfer to keep her in active status. When respondent was finally able to reach Ms. Taylor she was informed that an apartment was available in the same building on the tenth floor. On June 11, 2007 Ms. Hankinson viewed the apartment although management stated it would not be ready until June 15th. If respondent wanted to transfer earlier, there was a one bedroom without a balcony ready on June 12, 2007. (Ms Hankinson's present apartment has a balcony.) On July 3, 2007 a memorandum dated July 2, 2007 was delivered to respondent requesting her to come to the office to pick up keys for apartment 320-10I. Ms. Hankinson prepared to move. She took pictures in June to see how her furniture would fit, bought boxes and was willing to move but was physically unable to do so because of her inability to lift and pull. She requested petitioner to provide her with financial and physical assistance to move. On August 6, 2007 Hankinson wrote a letter to Ms.Ketay asking for assistance in the transfer, using the specific term of "reasonable accommodation" and requested the transfer requirement be waived. She detailed how she attempted to move but could not due to the physical hardship. She explained of suffering from pain as the result of arthritis and a diagnosis of osteoporosis with a high risk of fracture. Weight bearing on her right side is especially difficult. Respondent attached an MRI of the spine to document the cause of her physical inability to complete the move. Reference was made to a previous submission to petitioner of test results confirming the osteoporosis diagnosis as well as further medical documentation in support of her request for a reasonable accommodation.

HUD sets forth the requirements before an owner can mandate a tenant to transfer to another unit. HUD 4530.3 Rev1 ¶7-15 The owner needs to determine the appropriate unit size. If there is a finding of underutilization consistent with the HUD requirements then the owner needs to determine whether the tenant is required to move. HUD 4350.3 Rev1 ¶7-15(A)If there are appropriate sized units available then a transfer is required. HUD 4350.3 Rev 1¶7-16(2 ) If there are no appropriate size units available then the tenant is to remain in her current unit. If there is no demand for the larger unit that the tenant is occupying, the owner does not have to require the tenant to move. HUD 4350.3 Rev 1 ¶7-16 (2)(b)

On February 14th, 2007 respondent was initially notified that her apartment was too large for her family composition and that she would have to either move or pay market rent. On February 27, 2007 respondent was informed of the necessity to transfer immediately which is a misrepresentation of the HUD requirements allowing a minimum of thirty days. HUD 4350.3 Rev1 7-15(B) When respondent was terminated on April 1, 2007 respondent had never been offered another apartment. She was neither informed of nor shown any specific available apartments. It is clear that HUD requires that a tenant be allowed a minimum of thirty days to transfer after an apartment has been made available to them. An apartment was first made available to respondent on July 3, 2007 when the keys were offered to respondent for unit 320-[*5]10I.. According to HUD procedure she would have a minimum of thirty days from that date to move into the subject premises thereby bringing the earliest date that the subsidy could be terminated to August 2, 2007. HUD 4350.3 Rev 1 ¶7-16(B)(1)

Not only was respondent's subsidy improperly terminated prematurely, Bay Towers never addressed respondent's request for reasonable accommodation. "A reasonable accommodation is a change, exception, or adjustment to a program... dwelling unit... that will allow a qualified person with a disability to...Live in a dwelling...."HUD 4350.3 Rev 1 ¶ 2-39

Under both Section 504 of the Rehabilitation Act of 1973 and the

Fair Housing Act, a tenant or applicant for housing makes a

reasonable accommodation request whenever he or she makes it

clear to the housing provider that a request is being made for an

exception, change, or adjustment to a rule, policy, practice, service

or physical structure because of his or her disability." HUD 4350.3 Rev 1 ¶ 2-40(D)

Petitioner has known for many years that respondent was found to be disabled under the social security requirements. Respondent receives supplemental security income (SSI) which is reported every year as part of her re-certification. Furthermore, petitioner has known since respondent's December 15, 2006 letter that respondent is in need of assistance because of her medical condition. On March 29, 2007, respondent wrote to petitioner making it clear of the difficulty in complying with a transfer due to her health condition. On August 6, 2007, respondent specifically used the legal term "reasonable accommodation" in requesting petitioner to provide her with assistance. Petitioner chose to ignore all the requests except to say that there would be an attempt to make it a lateral move. Even that wasn't complied with, as the apartments ultimately offered were not on the same floor as the current one. HUD Handbook 4350.3 Rev 1 7-16 specifically provides that an owner may pay part or all of the moving costs as a reasonable accommodation for a person suffering from a disability. Respondent had specifically requested that form of assistance in her letter of March 29, 2007. While there was much correspondence between the parties not once did petitioner respond to Ms. Hankinson's reasonable accommodation request. No determination was ever made if respondent qualified for that accommodation because management never reviewed the numerous medical documentation submitted in support of the request. Bay Towers was obligated to give a prompt response to respondent's request for reasonable accommodation. HUD 4350.3 Rev 1 ¶2-40(F) Instead management failed to address the request in complete contravention of the HUD requirements. HUD 4350.3 Rev 1 ¶ 2-38

Accordingly, petition is dismissed.

This constitutes the decision and order of the court.

______________________________

Ronni D. Birnbaum, J.H.C.

Dated: December 15, 2008 [*6]

Queens, New York Footnotes

Footnote 1:The court need not make a determination as to whether respondent's subsidy at this time was properly terminated pursuant to the HUD regulations as it became moot when she subsequently received the RAP subsidy for the same time period in question.

Footnote 2:1988-Ms Hankinson moved into 18L with Theresa and Erica

1991- Theresa and Erica moved out and into a 1 bedroom apartment in the same building

1998 - Theresa and Erica moved into a 2 bedroom apartment , 14J, in the same building.

2000 - Theresa moved with Erica to apartment 14K in the Bay Towers building next door

May 2005 - Erica moved out of Bay Towers