Douglas v Latimer

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[*1] Douglas v Latimer 2009 NY Slip Op 52347(U) [25 Misc 3d 1230(A)] Decided on November 20, 2009 District Court Of Nassau County, First District Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2009
District Court of Nassau County, First District

Verda Douglas, Petitioner(s)

against

Laurie Latimer, Respondent(s)



SP 005389/09



Nassau/Suffolk Law Services Committee, Inc., Attorneys for Respondent, One Helen Keller Way, Hempstead, New York 11550, 516-292-8100; William D. Friedman, Attorney for Petitioner, 507 Fulton Avenue, Hempstead, New York 11550, 516-538-5462.

Scott Fairgrieve, J.



The petitioner, Verda Douglas, commenced the instant holdover proceeding through the filing of a holdover petition in the Court on or about September 9, 2009. The respondent, Laurie Latimer, who is a tenant pursuant to Section 8, moves to dismiss the instant holdover proceeding alleging that: 1) the petitioner's termination notice was insufficient because it failed to state the grounds for termination; 2) the petition fails to state that the Hempstead (Public) Housing Authority was served with a copy of the petition; and 3) the petitioner/landlord accepted rent after the termination of the tenancy. The petitioner opposes the motion in all respects.

The respondent argues that the termination notice was insufficient because it fails to state the grounds for termination and does not advise the tenant of her right to respond to the owner. The respondent attached a copy of the termination notice entitled "Notice To Terminate Monthly Tenancy" which is dated July 21, 2009. The tenancy was to terminate on August 31, 2009. The termination notice simply states that the respondent is to terminate and does not contain any grounds for the termination. The petitioner argues that the law does not require that the termination notice be served upon the Section 8 agency but does not address the lack of grounds and lack of advisement to the tenant of her right to respond to the termination notice. 24 CFR § 880.607 addresses the termination of a section 8 tenancy.

24 CFR § 880.607 states:

(a) Applicability. The provisions of this section apply to all decisions by an owner to terminate the tenancy of a family residing in a unit under Contract during or at the end of the family's lease term. [*2]

( c) Termination Notice

(1) The owner must give the family written notice of any proposed termination of tenancy, stating the grounds and that the tenancy is terminated on a specified date and advising the family that it has an opportunity to respond to the owner.

In Sultanik v. Byrd, 2007 NY Slip Op 51087U,15 Misc 3d 1141A, 841 NYS2d 823 (Just Ct, Westchester County 2007), the Court found that at or before the beginning of a Court action to evict a Section 8 tenant " the owner must give the tenant a written notice that specifies the grounds for termination of the tenancy which notice must also be served upon the Public Housing Agency" pursuant to 24 CFR §982.310(e).

The Sultanik Court went on to state that:

A valid notice of termination is a condition precedent to the commencement of a Section 8 eviction proceeding. Homestead Equities v. Washington, 176 Misc 2d 459, 462, 672 NYS2d 980, 983 [Civ Ct, Kings County1998]; Chinatown Apts. V. Chu Co Lam, 51 NY2d 786, 788, 412 NE2d 1312, 433 NYS2d 86, 88 [1980]) .... "It is essential that the PHA be given timely notice of the commencement of proceedings to terminate the tenancy, not only so that it does not continue to make housing subsidy payments on behalf of a tenant who is no longer in possession, but also to enable it to monitor the actions of the landlord and afford it the opportunity to intervene if it deems it necessary to protect the interests of the Section 8 tenant." Lamlon Development Corp. v. Owens, 141 Misc 2d 287, 294, 533 NYS2d 186, 191 (Dist Ct, Nassau County 1988) "A landlord seeking to terminate a Section 8 tenancy must serve a copy of the termination notice (or equivalent notice) on the public housing authority at the same time that such notice is served on the tenant. Failure to do so is a jurisdictional defect which precludes the maintenance of a summary proceeding." (Id.)

As such, the Court finds the termination notice to be insufficient as it does not comply with 24 CFR § 880.607. Accordingly, the respondent's motion is granted and the matter is hereby dismissed.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:November 20, 2009

CC:Nassau/Suffolk Law Services Committee, Inc.

William D. Friedman, Esq.

SF/mp

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