Anthony v Cole
Annotate this CaseDecided on January 5, 2009
District Court of Nassau County, First District
Neville Anthony, Petitioner(s)
against
Sonia Cole, "JOHN DOE" AND "JANE DOE," Respondent(s)
SP 2809/08
William D. Friedman, Esq., Attorney for Petitioner, 507 Fulton Avenue, Hempstead, New York 11550, (516) 538-5462; Judy Slater Hirshon, of counsel, Jeffrey Seigel, Esq., Nassau/Suffolk Law Services Committee, Inc., Attorneys for Respondent, One Helen Keller Way, Hempstead, New York 11550, (516) 292-8100.
Scott Fairgrieve, J.
Respondent SONIA COLE moves for an order pursuant to CPLR Rule
3211(a)(1) and RPAPL § 711(1) dismissing this hold-over proceeding on the ground that
she is not a month-to-month tenant, but rather a tenant under the existence of an enforceable one
year rental agreement. Petitioner opposes Respondent's motion.
This hold-over proceeding was instituted by service of a Notice of Petition and Petition by delivery to a person of suitable age and discretion pursuant to RPAPL §735 on June 5, 2008, returnable in this court on June 12, 2008. Numerous applications for adjournments were made and granted. On November 10, 2008, the Respondent made the instant application returnable November 18, 2008, which was adjourned to December 9, 2008 for Reply.
In her affidavit in support of the motion, Respondent claims that she was a tenant in another property owned by the Petitioner and that, while living there, the Petitioner agreed to accept her as a Section 8 tenant so long as she moved to the subject premises 22 Huff Court, Second Floor, Hempstead. Under that agreement, Respondent applied for a Section 8 voucher with the full cooperation of the Petitioner. All papers had been submitted by both parties and the Respondent was approved for a Section 8 voucher. The rental of $1,900 was approved effective March 1, 2008 with the Tenant paying $845 and the Housing Authority paying $1,055. The Respondent moved into the subject premises, without a lease, and the Petitioner accepted the Housing Authority payments of $1,055 for the months of March through July, 2008, with the balance of $845 from the Respondent. Respondent claims that it was only because of Petitioner's actions that she moved into the apartment from which he is now seeking to evict her as a month-[*2]to-month tenant.
Under the rules and regulations of the Housing and Urban Development Agency, the Petitioner was required to enter into a Housing Assistance Payments [HAP] Contract, which is governed by 24 C.F.R. § 982.451. Petitioner's attorney claims in his opposition affirmation that while Petitioner's premises passed inspection, the Section 8 program does not commence until the HAP contract between Petitioner and the PHA [public housing agency] takes effect. Among papers needed to finalize the HAP contract was the submission by Petitioner of "a certificate of occupancy" for the subject premises. No explanation is offered as to why the certificate was not submitted. In fact, the Petitioner himself is silent on this motion, with only his attorney's hearsay affirmation offered in opposition. The Public Housing Authority issued a certification letter as to the approved rent, the Section 8 subsidy and the tenant's share of the rent, and subsequently paid to Petitioner the Section 8 subsidy for the months of March through July 2008. However, upon its discovery that Petitioner never finalized the HAP contract, it recouped the full amount paid from the Petitioner by deducting the amounts paid on account of Respondent to four other Section 8 tenants of Petitioner, and has not made any further payments to Petitioner.
Further, 24 C.F.R. §982.302(c), required that Respondent had to submit to the PHA a request for approval of the tenancy and a copy of the lease, including the HUD-prescribed tenancy addendum. The request must be submitted during the term of the voucher. It is apparent from Respondent's own papers, that she failed to abide by the rules and regulations relating to her eligibility as a Section 8 tenant by moving into the apartment without a lease.
While it is clear, that Respondent is not a Section 8 tenant, both by her own inaction in not providing to the Housing Authority a copy of the lease with the prescribed tenancy addendum, as well as the Petitioner's failure to submit the certificate of occupancy required for the HAP contract, it is the Court's opinion that Respondent is not a month-to-month tenant as claimed by Petitioner.
The Respondent, in her affidavit, outlines all of the steps that she and the Petitioner followed in order for her to obtain Section 8 subsidy status, and she states "I certainly would not have moved into the apartment had I known of the misrepresentations of the petitioner. I expected a tenancy for a term and not a monthly tenancy." Respondent also annexes to her motion papers copies of all the papers filed by both her and the Petitioner. Of significance, is Respondent's Exhibit E, a written and signed notice by the Petitioner "To Whom it May Concern", which states in essence that he is offering a one-year lease, as of 03.01.08 to Sonia Cole." The terms of the lease state that the first month's rent is $1,900. The Petitioner indicates that his Federal I.D. number is "already on file w/DSS", indicating that he is familiar with the Section 8 procedure. Apparently, in accordance with this writing, the County of Nassau Economic Development Office of Housing & Homeless Services wrote to both Petitioner and Respondent on March 3, 2008 (Exhibit F) that Respondent's "payment will be $845 a month [*3]effective 3/1/2008. The Housing Assistance Payment will be $1,055 effective 3/1/2007. The total of the above payments will equal the Contract Rent of $1,900." Thereafter, Petitioner accepted $845 a month in rent from the Respondent. There is no question but that a lease for one-year was contemplated between the parties. Petitioner is now equitably estopped from maintaining that Respondent is a month-to-month tenant. Respondent relied upon that statements and actions of the Petitioner.
As succinctly stated in Holm v. CMP Sheet Metal, Inc., 89 AD2d 229, 234-235 (4th Dept 1982) citing Court of Appeals cases:
We are thus left with a consideration of the application of the doctrine of equitable estoppel to the within facts. This doctrine precludes a party at law and in equity from denying or asserting the contrary of any material fact which he has induced another to believe and to act on in a particular manner. It "rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury" (Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443, 448, quoting Metropolitan Life Ins. Co. v Childs Co., 230 NY 285, 292.) Parties are estopped to deny the reality of the state of things which they have made to appear to exist and upon which others have been made to rely. It does not operate to create rights otherwise nonexistent; it operates merely to preclude the denial of a right claimed otherwise to have arisen (21 NY Jur, Estoppel, Ratification, and Waiver, §§ 17-18). New York's rather restrictive view of estoppel requires three elements on the part of the party estopped: (1) conduct which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intent that such conduct (representation) will be acted upon; and (3) knowledge, [*235] actual or constructive, of the true facts (21 NY Jur, Estoppel, Ratification, and Waiver, § 21). The elements pertaining to the party asserting estoppel are (1) lack of knowledge of the true facts; (2) good faith reliance; and (3) a change of position (21 NY Jur, Estoppel, Ratification, and Waiver, § 60). These are commonly termed the elements of detrimental reliance.
Using this criteria, it is clear that Petitioner's conduct (1) was calculated to convey the impression to Respondent that she would be a tenant under a Section 8 lease and not a month-to-month tenant as alleged herein; (2) was further calculated by Petitioner that Respondent would move from her then apartment owned by Petitioner to the current apartment, also owned by Petitioner; and that (3) Petitioner had knowledge, actual or constructive, of the true facts. Further, Respondent, by asserting estoppel, has shown to the Court that (1) she lacked knowledge of the true facts; (2) that she relied in good faith upon the Petitioner's representations and (3) she changed her position in reliance upon same.
The Court finds that Respondent is not a month-to-month tenant, but a tenant of the Petitioner for the one-year period March 1, 2008 through February 28, 2009 at a monthly rental of $845.
This Court has the authority to apply the doctrine of equitable estoppel as a defense in a [*4]summary proceeding. See Paladino v. Sotille, 15 Misc 3d 60 (App Term, 2d Dept 2007); Avitabile v. Silvestri, 3 Misc 3d 393, 773 N.Y.S.2d 275 (Suffolk Dist Ct, 2004).
Accordingly, Petitioner's hold-over proceeding is dismissed.
So Ordered:
/s/ Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:January 5, 2009
cc:William D. Friedman, Attorney for Petitioner
Nassau/Suffolk Law Services Committee, Inc., Attorney for Respondent
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