Tapia v Successful Mgt. Corp.

[*1] Tapia v Successful Mgt. Corp. 2011 NY Slip Op 51012(U) Decided on June 1, 2011 Supreme Court, New York County Friedman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2011
Supreme Court, New York County

Ramona Tapia et al., Plaintiffs,

against

Successful Management Corp., et al., Defendants.



Vladimir Dreytser, et al. Plaintiffs, against- Index No.401140/08 ACTION NO. 2

against

195 Realty, LLC., et al., Defendants,



Christina Urena, et al., Plaintiff(s), against ACTION NO. 3

against

Skyline Restoration Inc., et al., Defendant(s).



400563/08

 

Robert Desir

The Legal Aid Society 199 Water Street

New York, NY 10038

For Defendants:

Triple AG Corp.

Gur Altberg, Esq.

80-55 221st St.

Jamaica, NY 11427

Simpson Realty Corp.

CHRIS E. FINGER, ESQ

787 CASTLE HILL AVE.

BRONX,NY 10473

790 RSD Acquisition LLC

Michael J. Berman & Assocs., P.C.

Michael J. Berman

15 Maiden Ln., #1108

New York, NY 10038

Marcy S. Friedman, J.

In Tapia and Dreytser, two of these three multi-plaintiff actions, the court previously determined a "general issues" summary judgment motion affecting all plaintiffs. By decision and order dated July 20, 2009 (Tapia v Successful Mgt. Corp., 2009 NY Slip Op 51552[U]), which has been affirmed by the Appellate Division (79 AD3d 422 [1st Dept 2010]), this court held that the antidiscrimination clauses of the J-51 law and Local Law 10 prohibit defendant-landlords from refusing to accept Section 8 benefits from plaintiffs who were tenants in defendants' buildings prior to their receipt of Section 8 vouchers. Three plaintiffs now move for summary judgment on their complaints, claiming that their landlords wrongfully continue to refuse to accept their Section 8 vouchers. Defendants assert case-specific bases for their refusal. In Tapia, plaintiff Irma Garcia, who is 59 years old, disabled, and a resident of her apartment for over 32 years, moves against defendant Simpson Realty Corp. (Simpson). In Dreytser, plaintiff Linda Colon, who is also disabled and a resident of her apartment for seven years, moves against defendant Triple AG Corp. (Triple AG). In Urena, plaintiff Milani Rivas, who is 58 years old and a resident of her apartment for 34 years, moves against defendant 790 RSD Acquisition LLC (790 RSD). By separate motions, Triple AG and Simpson move for summary judgment dismissing plaintiffs' respective complaints against them.

The standards for summary judgment are well settled. The movant must tender evidence, by proof in admissible form, to establish the cause of action "sufficiently to warrant the court as a matter of law in directing judgment." (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [*2][1985].) Once such proof has been offered, to defeat summary judgment "the opposing party must show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd. [b])." (Zuckerman, 49 NY2d at 562.)

Defendants Simpson and Triple AG move for summary judgment dismissing the complaints on the same ground. They claim that notwithstanding the undisputed fact that plaintiffs have valid, enforceable Section 8 vouchers, defendants are not obligated to accept them because plaintiffs' units or household composition render plaintiffs ineligible, in defendants' opinion, to use the vouchers. More particularly, Triple AG contends that plaintiff Colon's apartment does not meet the Housing Qualification Standards (HQS) promulgated under the Section 8 program due to the lack of a sink. (24 CFR § 982.401.) Simpson contends that plaintiff Garcia's boyfriend lives with her, and that Simpson's execution of a Housing Assistance payments (HAP) contract with the New York City Housing Authority (NYCHA) would constitute a fraud upon NYCHA because plaintiff's voucher lists plaintiff as the sole member of the household.

These defenses are without merit as a matter of law. Neither Triple AG nor Simpson submits legal authority that it is for the landlord, rather than NYCHA in the first instance, to make the determination as to a tenant's eligibility to use a voucher. The regulatory framework clearly provides for the Public Housing Agency (PHA) that administers the voucher program — here, NYCHA — to make the eligibility determination. The regulations thus provide: "The PHA may not give approval for the family of the assisted tenancy, or execute a HAP contract, until the PHA has determined that all the following meet program requirements," including: "(1) The unit is eligible; [and] (2) The unit has been inspected by the PHA and passes HQS." (24 CFR § 982.305[a].) The regulations further provide: "If the PHA has given approval for the family of the assisted tenancy, the owner and the PHA execute the HAP contract." (Id., § 982.305 [e].)

Not surprisingly, given the clear terms of the regulations, the courts have uniformly held that the determination of a tenant's eligibility to use a Section 8 voucher is to be made by the PHA, not the landlord. (See Arem v EDMD Realty LLC, Sup Ct, Kings County, October 8, 2010, Rothenberg, J., Index No. 3204/10; Florentino v Nokit Realty Corp., 29 Misc 3d 190 [Sup Ct, New York County 2010]; Jones v Park Front Apts., LLC, 2009 NY Slip Op 33241(U) [Sup Ct, New York County 2009], mod on other grounds 73 AD3d 612 [2010].) To hold otherwise would vest in the landlord the ultimate decision-making authority over whether the tenant qualifies for use of the subsidy, and would circumvent the procedural safeguards — whether an informal hearing in specified circumstances (24 CFR § 982.555) or an Article 78 proceeding — which are available to the tenant in the event the PHA makes an adverse determination.

Thus, in the Colon case, it was for NYCHA, not Triple AG, to determine whether plaintiff Colon's apartment meets Housing Qualification Standards. Notably, although it is undisputed that plaintiff's apartment has only one sink, rather than the two provided for by the regulations (see 24 CFR § 982.401[b][2][ii], [c][2][ii]), the regulations also expressly set standards for approval of "variations" by the Department of Housing and Urban Development (HUD) in appropriate circumstances. (Id., § 982.401[a][4][i]-[iv].) Triple AG does not discuss the variations, and there is no evidence in this record that HUD has not set standards under which NYCHA may have discretion to approve use of the voucher for an apartment with only one sink. In any event, this issue was for NYCHA, not defendant-landlord, to decide.

Similarly, in the Garcia case, it was for NYCHA, not Simpson, to determine whether the [*3]composition of plaintiff's household renders her ineligible for the voucher. Simpson's principal, Joseph Nieves, claims that he routinely accepts Section 8 vouchers, but that he has personal knowledge that plaintiff is residing in the apartment with her boyfriend and other persons. (Nieves Aff., ¶¶ 4-5.) He further claims that the HAP contract stated that plaintiff was the sole occupant, and that he refused to sign it because it would have required him to falsely certify that only plaintiff resided in the apartment. (Id., ¶ 5.)

Simpson correctly contends that a landlord may not certify false information regarding a tenancy. Nor may a tenant's provision of false information be condoned. However, Simpson makes no showing that he was required to certify false information. While Simpson asserts that the HAP contract that plaintiff presented contained a false statement that she was the sole occupant, Simpson fails to produce a copy of such contract. Simpson also makes no showing that it could not have corrected information in the HAP contract. Significantly, the form HAP contract (Simpson Motion, Ex. E) does not contain any provision requiring the landlord to certify the composition of the household. On the contrary, the Tenancy Addendum to the contract requires the PHA to determine the household composition, and thus expressly provides: "The composition of the household must be approved by the PHA. . . . Other persons may not be added to the household without prior written approval of the owner and the PHA." (Part C of HAP Contract, § 3[a].) The regulations also set forth a procedure for the voucher holder to add additional occupants to the household. (24 CFR § 982.516 [b][2] ["At any time, the family may request an interim determination of family income or composition because of any changes since the last determination. The PHA must make the interim determination within a reasonable time after the family request.") Thus, under both the implementing regulations discussed above (see 24 CFR § 982.305 [e]) and the HAP contract itself, it was NYCHA's responsibility to determine whether the household qualified for use of the voucher.

In a recent case which rejected a similar claim that the HAP contract would have required the landlord to certify false information about the number of bedrooms in the plaintiff's apartment and the identity of the occupants, the court cited the affidavit of Gregory Kern, the manager of NYCHA's Section 8 program, stating "that the HAP does not require defendants to certify the size of plaintiff's apartment or anything concerning her income." (See Florentino, 29 Misc 3d at 193. See also Jones v Park Front Apts., 2009 NY Slip Op 33241(U), supra, mod on other grounds 73 AD3d 612.) The court further reasoned that if the landlord suspects that the tenant is hiding income, it can report such concerns directly to NYCHA which will then investigate and make a determination concerning the tenant's eligibility for the voucher. (Id.) Here, similarly, Simpson should not have unilaterally decided that plaintiff was ineligible. Rather, it was obligated to execute the HAP contract and to report any suspected wrongdoing to NYCHA.

The court has considered the remaining contentions of Triple AG and Simpson and finds them to be without merit. To the extent that Triple AG now claims that it was never presented with the voucher, that contention is plainly contradicted by the testimony of its president, Johanan Altberg, that he received plaintiff's attorney's April 29, 2008 letter (Ps.' Motion, Ex. J), demanding that defendant accept plaintiff's voucher. (Altberg Dep. at 17.)

790 RSD opposes plaintiff Rivas' motion for summary judgment on a different case-[*4]specific ground.[FN1] 790 RSD argues that plaintiff sought acceptance of her Section 8 voucher prior to March 26, 2008, the effective date of Local Law 10, and that when her attorney subsequently sought acceptance of the voucher, it had already expired. This contention is based, in turn, on the claim that her attorney's letter, dated December 10, 2008, demanding acceptance of the voucher (Ps.' Motion, Ex. R) was sent to the wrong entity, and that the voucher had expired as of June 22, 2009, the date of her attorney's second demand letter. (Id., Ex. S.) Defendant fails to raise a bona fide issue of fact on either claim.

The December 10, 2008 letter was addressed to "790 Riverside Drive Owners c/o Orsid Realty Corp.[Orsid]." Although the landlord was misnamed, it is undisputed that Orsid was the managing agent for the correct landlord, 790 RSD, and that Orsid received the December 10, 2008 letter and brought it to the attention of David Swersky, a member of 790 RSD, who forwarded it to his lawyer. (Swersky Dep. at 47-49.) 790 RSD does not dispute that the voucher was in effect through December 2008 and, indeed, submits a copy of the voucher with an extension date through December 31, 2008. (Berman Aff. In Opp., Ex. B.) The misnomer of the landlord is without effect under these circumstances in which the landlord admittedly had actual notice of the request for acceptance of the voucher. In so holding, the court notes that Swersky submits an affidavit in opposition to plaintiff's summary judgment motion, claiming that he did not see the December 2008 letter until after commencement of this lawsuit in December 2009. (Swersky Aff., ¶ 4.) However, this affidavit, which is tailored for this summary judgment motion, does not serve to raise a triable issue of fact as it is plainly inconsistent with Swersky's deposition testimony. (See generally Mayancela v Almat Realty Dev., LLC, 303 AD2d 207 [1st Dept 2003]; Naposki v Au Bar, 271 AD2d 371 [1st Dept 2000].)

790 RSD's claims regarding the June 22, 2009 letter are similarly unavailing. This letter was concededly addressed to the correct landlord, "790 Riverside Acquisitions LLC c/o ORSID Corporation." It is undisputed that Orsid received this letter. (See also Swersky Dep. at 49-50.) Swersky also acknowledged that he refused to accept the Section 8 voucher in response to this letter because, "[a]fter conferring with my counsel, I believed I had no legal obligation to accept Section 8." (Id. at 51.) Defendant now takes the position that it was not obligated to accept the voucher because it had expired. However, defendant fails to submit any evidence that the voucher was not renewed after the December 31, 2008 extension date. In contrast, plaintiff submits documentary evidence that on December 17, 2008, NYCHA extended plaintiff's voucher pending the instant litigation.[FN2] (Goldiner Aff., Ex. A.)[FN3] [*5]

790 RSD also fails to submit any authority in support of its claim that plaintiff was required to submit a copy of the voucher at the time of her request for acceptance. The court has considered defendant's remaining claims and finds them to be without merit.

The court accordingly holds that defendants fail to raise a triable issue of fact on their case-specific defenses, and that such defenses are a pretext for discriminating against plaintiffs based on their proffer of Section 8 vouchers. Plaintiffs are entitled to summary judgment as to liability, with an assessment of damages to be held. While the court has made findings in this decision that the vouchers or demand letters were received by defendants by specified dates, nothing in this decision shall be construed as holding that such dates were the earliest dates on which the vouchers or requests for acceptance were presented. Proof of earlier dates of presentation may be adduced at the assessment hearing.

It is accordingly hereby ORDERED that the motion for summary judgment of plaintiffs Irma Garcia, Linda Colon, and Milani Rivas is granted to the extent that it is

ORDERED that plaintiff Irma Garcia is awarded judgment against defendant Simpson Realty as to liability; and it is further

ORDERED, ADJUDGED, and DECLARED that defendant Simpson Realty has violated the antidiscrimination clause of the J-51 law (New York City Administrative Code § 11-243[k]) by refusing to accept Section 8 benefits from plaintiff Garcia; and it is further

ORDERED, ADJUDGED, and DECLARED that defendant Simpson Realty shall accept plaintiff Garcia's Section 8 voucher and execute all documents necessary to effectuate acceptance within 10 days after service of a copy of this order with notice of entry; and it is further

ORDERED that plaintiff Linda Colon is awarded judgment against defendant Triple AG Corp. as to liability; and it is further

ORDERED, ADJUDGED, and DECLARED that defendant Triple AG has violated the antidiscrimination clause of Local Law 10 (New York City Administrative Code §§ 8-101 et seq.) by refusing to accept Section 8 benefits from plaintiff Colon; and it is further

ORDERED, ADJUDGED, and DECLARED that defendant Triple AG shall accept plaintiff Colon's Section 8 voucher and execute all documents necessary to effectuate acceptance within 10 days after service of a copy of this order with notice of entry; and it is further

ORDERED that plaintiff Milani Rivas is awarded judgment against defendant 790 RSD as to liability; and it is further

ORDERED, ADJUDGED, and DECLARED that defendant 790 RSD has violated the antidiscrimination clause of Local Law 10 (New York City Administrative Code §§ 8-101 et seq.) by refusing to accept Section 8 benefits from plaintiff Rivas; and it is further

ORDERED, ADJUDGED, and DECLARED that defendant 790 RSD shall accept plaintiff Rivas' Section 8 voucher and execute all documents necessary to effectuate acceptance within 10 days after service of a copy of this order with notice of entry and service of notice that Rivas' voucher has been reinstated; and it is further

ORDERED that an assessment of damages shall be held, and plaintiffs shall take all necessary steps to place this case on the trial calendar for such assessment; and it is further

ORDERED that the motion for summary judgment of defendant Triple AG Corp. is denied; and it further [*6]

ORDERED that the motion of defendant Simpson Realty is denied.This constitutes the decision, order, and judgment of the court.

E N T E R

Dated:New York, New York

June 1, 2011

___________________________

MARCY FRIEDMAN, J.S.C. Footnotes

Footnote 1:790 RSD does not dispute that Local Law 10 precludes a landlord from discriminating against a tenant by refusing to accept a Section 8 voucher acquired after the commencement of the tenancy. (Berman Aff. In Opp., ¶ 9.)

Footnote 2:While new factual matter is ordinarily not properly considered on a reply (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1st Dept 1982]), this new evidence which plaintiff submits on the reply is properly considered, as it responds to defendant's claims in opposition to the summary judgment motion. (See Anderson v Beth Israel Med. Ctr.,31 AD3d 284 [1st Dept 2006].)

Footnote 3:Along with many other voucher holders, however, plaintiff received a notice from NYCHA, dated December 30, 2009, suspending her voucher due to "insufficient federal funds." The notice states that "you will be given priority to have your voucher restored should Section 8 funding become available." (Goldiner Aff., Ex. C.)