501 W. 41st St. Assoc., LLC v Annunziata

[*1] 501 W. 41st St. Assoc., LLC v Annunziata 2012 NY Slip Op 51181(U) Decided on June 19, 2012 Civil Court Of The City Of New York, New York County Wendt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2012
Civil Court of the City of New York, New York County

501 West 41st Street Associates, LLC, Petitioner-Landlord,

against

Frank Annunziata, Respondent-Tenant, -and- "JOHN DOE" AND/OR "JANE DOE" Respondents-Undertenants



L & T 69208/08



The petitioner is represented by Todd I. Nahins, Esq. and Jeffrey H. Seiden, Esq. of Borah, Goldstein, Altschuler, Nahins and Goidel, P.C., 377 Broadway, New York, New York 10013, (212) 431-1300, and the respondent is represented by Housing Conservation Coordinators, by Stuart W. Lawrence, Esq., 777 Tenth Avenue, New York, New York, 10019, (212) 541-5996.

Peter M. Wendt, J.

Following trial in this summary holdover proceeding, held on January 11, 30, February 22, 29 and March 12 and 20, 2012, the court sets forth below its findings of fact and conclusions of law.

Petitioner commenced this proceeding in May, 2008 to recover possession of Apartment 4K at 561 Tenth Avenue, New York, New York (the subject premises). The subject premises is rent stabilized along with other apartments in the subject building pursuant to the owner's receipt of RPTL 421-a tax benefits, and is also subsidized and regulated under the Low Income Housing Tax Credit (LIHTC) statute.

Petitioner elected to terminate respondent's tenancy on the grounds that respondent is in material non-compliance with his tenancy by falsely certifying his household income, thereby failing to qualify as eligible to rent a low income unit in the subject building. In the Thirty Day Notice of Termination, petitioner alleges that respondent's false certification, "...violates the Rules and Regulations promulgated by the New York State Housing Finance Agency Regulatory Agreement and Federal Low Income Housing Tax Credit Program, as well as Section 8 of the United States Housing Act of 1937 as Amended as well as Paragraphs 1,2,3, 5, and 18 of the Rider to your lease for Low Income Units dated October 28, 2002."

Specifically, petitioner alleges that when respondent Frank Annunziata completed his application for the subject premises on March 20, 2002, he failed to report funds that he held in accounts at Pamrapo Savings Bank, a New Jersey bank, and that he intentionally hid those funds from the landlord in order to become income eligible to rent the subject premises. Petitioner contends that when the income from these unreported accounts is combined with respondent's reported income, he would have been ineligible for the Low Income Housing Program. Petitioner further alleges that respondent continued to misrepresent his total income and assets on his annual required re-certifications for the subject premises in substantial violation of his lease. [*2]

Respondent argues that he has no legal ownership interest in the Pamrapo Bank accounts, which are joint accounts with his mother, to which he contributed nothing. He argues that the Housing and Urban Development (HUD) handbook 4350.3, "Occupancy Requirements of Subsidized Multifamily Housing Programs," which does not apply to the subject premises, nonetheless can be used as a guide in determining what should be considered income in the LIHTC program. Said handbook provides that the percentage of ownership of a jointly titled asset must be determined in accordance with applicable state law, and the applicable New Jersey law (NJ Stat Ann §17:161-4) states that, "[a] joint account belongs...to the parties in proportion to the net contributions by each to the sums on deposit." Respondent contends that since he contributed nothing to the joint accounts, the income from the funds therein should not be considered income, they do not affect his eligibility for tenancy in the subject apartment, and he did nothing wrong when he did not disclose them.

Petitioner called four witnesses at trial: Evelyn Litardo, an agent for petitioner and the manager of the affordable units at 561 Tenth Avenue, the subject building; Patricia Radomsky, the operations manager at BCB Community Bank (BCB); Pasqualina Annunziata, respondent's 71 year old mother; and respondent Frank Annunziata.

Admitted into evidence on Petitioner's case were the following: A certified copy of the deed to the subject building (Exhibit 1); a certified copy of the Multiple Dwelling Registration (Exhibit 2); the original lease for the subject premises dated October 28, 2002, signed by Frank Annunziata (Exhibit 3); a certified copy of the DHCR Registration Rent Roll Report for the subject building (Exhibit 4); respondent's original application to "The Victory", signed by him and dated March 20, 2002 (Exhibit 5); New York State Housing Finance Agency Tenant Income Certification Forms for "The Victory," dated October 24, 2002 (Exhibit 6), November 6, 2003 (Exhibit 15), October 9, 2004 (Exhibit 16), November 18, 2005 (Exhibit 17), September 29, 2006 (Exhibit 11); The Victory "Asset Affidavit" form, signed by respondent and dated August 5, 2002 (Exhibit 7); HUD Notice PDR-2002-02, dated January 31, 2002 (Exhibit 8); a printout of HUD Income 2002 Income Limits for counties in New York State (Exhibit 9); a copy of respondent's Federal 2005 tax return (Exhibit 12), a copy of respondent's 2005 IRS Wage and Income Transcript (Exhibit 13); the "Statement of Accounts" for respondent's Fleet Savings Account Number xxxx-xxx432 from March through June 2002 (Exhibit 14); a printout of an account listing and summary from BCB Bank for Frank Annunziata dated February 16, 2012 (Exhibit 18); a copy of the signature card for Pamrapo Bank Account, #xxxxx330 (Exhibit 19), showing respondent's signature on line 1, as well as his social security number; a copy the signature card for Pamrapo Account #xxxxx420 (Exhibit 22), showing respondent's signature on line 1, as well as his social security number and date of [*3]birth; a BCB bank printout of a summary of Account Nos. xxxxx330, xxxxx420, and xxxxx520, showing dates accounts were opened, deposits, withdrawals, interest payments and balances (Exhibit 23); a printout of HUD Occupancy Handbook Chapter 5, "Determining Income and Calculating Rent" (Exhibit 24); and a copy of the transcript from respondent's deposition on January 29, 2009 (Exhibit 25).

Petitioner's first witness was Evelyn Litardo, who has worked for Durst-Fetner for over six years and is their Compliance Director. She testified that Durst-Fetner has four "80/20" buildings, of which the subject building is one, and that she manages the twenty percent "affordable" units at the Victory. She described the "80/20" program, in which 80% of the apartments in the building have market rate rents, and 20% are part of an Internal Revenue Service affordable housing program, the Low Income Housing Tax Credit (LIHTC) Program, which is administered at the state level by the New York State Housing Finance Agency (HFA). She stated that under the program, rent in the affordable housing units are fixed at a percentage of the area median income (AMI) determined by HUD, and can increase annually by no more than any increase in AMI.

Ms. Litardo testified that applicants for the program are required to complete an application and submit financial documentation which could include tax returns, bank statements, pay stubs, affidavits and third party verifications. Once approved as a tenant, the person must complete re-certifications annually as to household composition and income. Ms. Litardo further testified that there are specific HUD regulations which set forth income restrictions for one to qualify for the LIHTC program. She added that there are absolutely no exceptions to these income restrictions, and an applicant would be rejected for being as little as one dollar over the income limit.

Admitted into evidence through Ms. Litardo was respondent's application, signed by him and dated March 20, 2002 (Exhibit 5), which included "Section C. Income," listed as $13,248 annually, as well as "Section D. Assets." Under Section D are listed three assets totaling $5,088.54: a checking account ($525), brokerage account ($2010.20), and a Roth IRA ($2553.34). Respondent listed no other assets. Also admitted into evidence through Ms. Litardo was respondent's signed "New York State Housing Finance Agency Tenant Income Certification" (Exhibit 6), dated October 24, 2002, in which he listed his Gross Annual Income as $14,976.00, and his three assets, totaling $3,989.84, as: Brokerage(1460.65), IRA (1768.19, with annual income of $22.63), Checking (761.00). Respondent declared his "Total Annual Household Income From All Sources," as $14,998.63, in two spots, just above and below the "Current Income Limit per Family Size" entry of $17,575.00. The form was dated October 24, 2002. Respondent further signed an "Asset Affidavit" form, dated August 5, 2002, in which he swore that he has not disposed of any assets for less than fair market value during the past two (2) years (Exhibit 7). [*4]

Also admitted at trial as Respondent's "Exhibit C" is a letter to respondent from The Victory, dated June 11, 2002, stating that he was ineligible for a rental in the building because "Your family's gross income is below the program minimum (Please refer to enclosed income sheet)". The attachment, entitled "The Victory Income Chart" showed the "Total Gross Annual Income Range" for a family of one in a studio to be $14,294-17,575, and for a one bedroom it shows $15,247-$17,575. It appears from the evidence that after first being determined to be ineligible for the subject premises because his income was too low, respondent then submitted documents showing a higher income that would fall within the eligibility guidelines.

Ms. Litardo explained how the income percentages are calculated to determine an applicant's eligibility for the program generally, as well as how respondent's eligibility was determined. Admitted into evidence as Petitioner's "Exhibit 8" was a HUD publication issued January 31, 2002, "Transmittal of Fiscal Year (FY) 2002 Income Limits for the Public Housing and Section 8 Programs," and admitted as "Exhibit 9" was a printout from the HUD official website showing income limits for various counties in New York State. Ms. Litardo testified that these documents were used to determine the income limits for the subject building and premises as well as to determine respondent's eligibility.

As mandated by the program, respondent was required to re-certify his family composition and income on a yearly basis. Respondent's "New York State Housing Finance Agency Tenant Income Certification" for the year 2003 (Exhibit 15) showed three accounts: "Checking - Fleet" (1,229), "IRA - Charles Schwab" (933.04), and "IRA- Charles Schwab" (1,793.06), all accounts totaling $3,955.10. In 2004, the same form (Exhibit 16) showed "Fleet Checking" (663.00), and "Brokerage-Charles" (811.59), totaling $1474.59. In 2005, the same form (Exhibit 17) showed "Checking-Bank of America" ($759), "IRA-Fidelity" ($1,860.69), totaling $2,619.80. In 2006, the same form (Exhibit 11) showed "Checking-Bank of America" ($1,236.67), "IRA-Charles Schwab" ($1,958.18), and "Brokerage - Charles Schwab"(1,674.76), totaling $4,869.61. Respondent listed "0" under "Annual Income from Asset" for each account.Ms. Litardo testified that her employment with Petitioner began in 2005 and she worked on respondent's 2006 re-certification. As part of the re-certification process, respondent submitted his 2005 tax returns. Ms. Litardo added that when she compared these returns with respondent's "New York State Housing Finance Agency Tenant Income Certification," she noticed a discrepancy between the "$0" entered after each asset, under "Annual Income from Asset," on the 2006 re-certification form and the $806 entered under Taxable interest on Respondent's 2005 Tax return (Exhibit 11).

Based on additional documentation requested from and provided by the [*5]Internal Revenue Service (Exhibit 13), Ms. Litardo learned that the interest income listed on respondent's 2005 tax return was from a Pamrapo Savings Bank Account. Ms. Litardo testified that upon further investigation, she discovered that respondent held four joint accounts at Pamrapo Bank, (See Exhibit 18), none of which he disclosed on his application in 2002 or on any of his re-certification documents since.

Ms. Litardo testified that she recalculated respondent's income based on the additional accounts, and found that by adding half of the income generated from the accounts at the time of the application to respondent's income, respondent would have been "over-income", meaning that his income would have exceeded the maximum income qualification for a low-income unit.

Ms. Litardo pointed to Chapter 5 of the HUD Occupancy Handbook, entitled "Determining Income And Calculating Rent," (Exhibit 24) as requiring that half of the joint bank account income be attributed to respondent. The relevant portion of Section 5-7, "Calculating Income from Assets," states as follows:

D. Assets Owned Jointly

1.If assets are owned by more than one person, prorate the assetsaccording to the percentage of ownership. If no percentage is specifiedor provided by a state or local law, prorate the assets evenly among allowners.

2.If an asset is not effectively owned by an individual, do not count itasset. An asset is not effectively owned when the asset is held in an

individual's name, but (a) the asset and any income it earns accrue tothe benefit of someone else who is not a member of the family, and(b) that other person is responsible for income taxes incurred onincome generated by the assets.

3.Determining which individuals have ownership of an asset requires

collecting as much information as is available and making the best

judgment possible based on that information. [*6]

Ms. Litardo testified that, relying on Paragraph "1" above, she prorated respondent's interest income to be half of what accrued based on his half ownership of the account.

Ms. Litardo then noted that not only did respondent fail to disclose any of the Pamrapo accounts in his application, he further failed to disclose them when he re-certified in 2003, 2004, 2005 and 2006. Ms. Litardo pointed out that respondent also failed to report a Fleet savings account in his initial application, and that she did not even know about that account until the deposition in this matter. (Exhibit 14).

Ms. Litardo testified that it is petitioner's position that respondent's omissions on his application and re-certification documents constituted fraud under the lease, requiring petitioner to terminate respondent's tenancy, as per the lease rider and the various other documentation which respondent signed.

Beginning with the "Certification" on his application, respondent affirmed on multiple occasions that he was giving accurate information in connection with his eligibility for a low income housing unit. The "Certification" states:

I/We certify that this will be my/our permanent residence. I/We understand that eligibility for housing will be based on applicable income limits and managements's selection criteria. I/We certify that all information in this application is true to the best of my/our knowledge, that I/We have revealed all income and assets, and I/We understand that false statements or information is punishable by law and will lead to cancellation of this application or termination of tenancy after occupancy. Misleading or incomplete information is also grounds for rejection of an application. (Emphasis added).

The "Household Certification and Signatures" section on each of the "New York State Housing Finance Agency Tenant Income Certification" forms states:

The information on this form will be used to determine maximum income eligibility. I/we have provided for each person(s) set forth in Part II acceptable verification of current anticipated annual income...Under penalties of perjury, I/we certify that the information presented in this Certification is true and accurate to the best of my/our knowledge and belief. The undersigned further understands that providing false representations herein constitutes an act of fraud. False, misleading or incomplete information may result in the termination of the lease agreement.(emphasis added)

Moreover, "Section 3. Income Limits." of the "Rider to Lease For Low-Income Housing Tax Credit Units," states, in relevant part, as follows:

(d)...Tenant hereby affirms that the statements, representations, certification and verification documentation provided to Landlord by or on behalf of Tenant are truthful and accurate. TENANT ACKNOWLEDGES AND AGREES THAT ANY FALSE, FRAUDULENT, MISLEADING, OR INCOMPLETE STATEMENT, REPRESENTATION, CERTIFICATION, DOCUMENTATION, OR OTHER INFORMATION MADE OR FURNISHED BY OR ON BEHALF OF TENANT IN CONNECTION WITH TENANT'S APPLICATION FOR THE APARTMENT, TENANT'S INITIAL CERTIFICATION OF ELIGIBILITY, OR ANY RECERTIFICATION OF ELIGIBILITY, SHALL CONSTITUTE MATERIAL NON COMPLIANCE UNDER THE LEASE, IN WHICH EVENT, THE LEASE SHALL BE SUBJECT TO RECISSION OR TERMINATION BY LANDLORD AND TENANT SHALL BE SUBJECT TO EVICTION. (Emphasis in original)

Similarly, "Section 5. Certification of Income and Household Composition" provides in relevant part that,

(a) Landlord has the right to terminate the Lease, evict Tenant, and recover possession of the unit, if Tenant has obtained status as an "Eligible Tenant" by falsely certifying household income on any of the screening, application, or certification documents. Such false certification constitutes a material noncompliance under the Lease. Tenant is obligated to provide such subsequent recertifications of income and verifying materials annually or at such other times as HFA or Landlord shall require, including, but not limited to, federal and state income tax returns and W-2 or 1099 Internal Revenue Service forms (or their equivalent) for Tenant and the other members of the Tenant's household for the calendar year prior to the year in which any such request is made.

Ms. Litardo further testified that when she became aware of the bank accounts and it appeared that respondent had violated the provisions of the lease as well as the rules for eligibility under the program documents, she contacted him and gave him an opportunity to either vacate or meet with her and offer an explanation for the unreported accounts. She stated that she never heard from him. Notably, she added, [*7]respondent's mother had called her and petitioner at various times in 2006, 2007, and 2008, advising them that respondent should not live in a low-income unit because he had "lots of money."

Petitioner's second witness was Pat Radomski, the operations manager from BCB Community Bank, which merged with Pamrapo bank in September 2010. Ms. Radomski testified that according to the Pamrapo bank records, of which BCB Bank now has possession, respondent has three joint bank accounts. Admitted into evidence as petitioner's "Exhibit 18" was a "BCB" bank printout showing a listing of accounts for Frank Annunziata, designating him as "Secondary Owner" to Account Numbers xxxxx330, xxxxx420, and xxxxx520. According to Ms. Radomski, respondent had shared access to all of these accounts for purposes of making deposits and withdrawals. He is also listed as "Primary Benef" under Account #xxxxx040.

Also admitted into evidence were signature cards for Pamrapo Bank Account Nos. Xxxxx330 and xxxxx420, both of which contain respondent's signature and show him as a joint account holder with his mother, Pasqualina Annunziata. The signature card for the first account, #xxxxx330 (Exhibit 19) shows that the account was opened March 1, 1996. The signature card for Account #xxxxx420 (Exhibit 22), shows that the account was opened April 20, 2005. Respondent's name was listed first on both signature cards but he was listed as secondary owner of the accounts in "Exhibit 18."

During Ms. Radomski's testimony, another series of printouts from the BCB website (Exhibit 23) were admitted, showing details of each of the above accounts, such as interest payments and account balances on various dates. Although there was no signature card for Account #xxxxx520, this exhibit reveals that the primary account holder on that account is Riccardo Annunziata, respondent's father, and respondent is the secondary account holder.

Ms. Radomski testified that upon review of the various entries in "Exhibit 23," Account Number xxxxx330 had a balance of $47,546.34 in March, 2002, the same month as respondent's application for low income housing in "The Victory". Similarly, the printouts show that Account Number xxxxx520 had a balance of $78,701.02 as of September 10, 2002. This account was not listed on the New York State Housing Finance Agency Tenant Income Certification Form signed by respondent and dated October 24, 2002, (Exhibit 6), nor on the "Asset Affidavit" signed by respondent and dated August 5, 2002 (Exhibit 7). Moreover, "Exhibit 23" shows these accounts to have remained open to date, and they are not listed on any of the income re-certification forms (Exhibits 11, 15, 16, 17). [*8]

Ms. Radomski further testified that as of September, 2001, Account #xxxxx330 had a balance of $46,364.66, and as of February 16, 2012, it had a balance of $78,288.39. Likewise, Account #xxxxx520 had a balance of $95,998.82 in September, 1999, and as of February 16, 2012, the balance was $32,023.30. Finally, Account #xxxxx420 had a balance of $30,000 in April, 2005, and $43,981.27 as of February 16, 2012.

Notably, Ms. Radomski testified that respondent, as joint owner, would have the same access as the other joint owner to the account, and could have made both deposits and withdraws. In her review of the records relating to the aforementioned accounts, she indicated that there were no restrictions placed on these accounts that would limit respondent's access. She testified that even if the accounts were "passbook accounts," any authorized owner could present identification to withdraw or deposit money.The court notes that the signature cards bearing respondent's name both state above the signatures that, "ANY ONE AUTHORIZED SIGNATURE WILL BE SUFFICIENT FOR EACH WITHDRAWAL , CHECK OR OTHER ORDER."

Both respondent and his mother, Pasqualina Annunziata, testified on respondent's behalf. Not only were they both interested witnesses, but their testimony was contradictory and almost completely lacking in credibility. Mrs. Annunziata testified that she handles the finances for the family. She admitted that she and her son are joint owners of Pamrapo Bank Account Nos. xxxxx330 and xxxxx420, and that respondent is a joint owner with his father on Account # xxxxx520. She testified that Account #xxxxx330 was opened in 1996 as an incentive to her son to move back home to New Jersey, as he was living in Florida when the account was opened. She further stated on cross-examination that her son moved back four years after the account was opened and that although he did move back home to New Jersey, she did not give him the money because he was an artist and she wanted him to get a better job.

With respect to Account #xxxxx420, again Mrs. Annunziata admitted that her son was a joint account owner with her, but claimed that all of the money in the account was hers alone, that respondent never made any contributions to the account, and that respondent's name was added to the account for insurance and security purposes. She cited the same reason for adding respondent's name to a joint account with his father, Account # xxxxx520, which she testified she opened. She further testified that respondent's father is living, that they are married, and that they reside together in their home in New Jersey.

Although Mrs. Annunziata claimed that respondent did not contribute to or take money from any of the accounts of which he was a joint owner, she did not produce [*9]the passbook she stated that she had, nor any bank records to show that respondent made no deposits to or withdrew money from any of the accounts.

Mrs. Annunziata admitted to calling the Victory and telling them to evict her son because he was ineligible to reside in the subject premises, but she testified that the reason she did this was that she wanted her son to come home and live with her.

Respondent Frank Annunziata testified and admitted that he failed to disclose the Pamrapo accounts and the Fleet Bank Savings account on his application and on the yearly re-certifications. With respect to the Pamrapo accounts, respondent testified that he made no deposits to or withdrawals from these accounts, received no bank statements for them, and that the money in these accounts belonged solely to his mother.

While respondent admitted signing a blank signature card for Account#xxxxx330 while he was in Florida, he testified that he otherwise knew nothing about that account. When asked by the court if he was aware from the signature card that his mother was putting him on a joint account with her, respondent testified that he was not aware. He stated that, "It was just a blank signature card, she said sign it and send it back. She's not forthcoming with her finances."

As for Account #xxxxx420, respondent could not recall when he signed the signature card but admitted signing it, and he had no memory of signing a signature card for Account #xxxxx520. He testified that he did not know that his social security number was associated with any of the accounts until his mother sent him a copy of a 1099 form when he was preparing his tax return in March, 2006. However, after he was shown a copy of his 2005 tax return (Exhibit 17), he admitted that it was signed in November, 2005.

Respondent was impeached on cross-examination with a transcript from his January 29, 2009 deposition testimony (Exhibit 25), in which he acknowledged knowing about the joint accounts and gave a different reason for their existence, which reason turned out not to be true. The transcript reads, in relevant part,

Q. You stated you signed paperwork; correct?

A. When I was in Florida there is a blue card you sign to make yourself to have a joint account which was sent to me in Florida and I signed that and sent it back like I mentioned the last time because of the divorce...

Q. What would be the reason you're holding a joint account with your mother? [*10]

A. The reason?

Q. You stated the time it was because your parents were getting divorced?

A. That's correct.

Q. Is the reason still the same?

A. Yes, they're in the process of divorcing now.

Q. Is that the reason you are holding a joint account with your mother at Pamrapo Savings Bank?

A. She said you know me and dad are getting a divorce I am putting some money you and I together. Again, nothing comes to my house, it's never been my money to access.

Q. Do you know the account number on that account?

A. Again, I don't have access to the bank book, I don't know the account. If I get a 1099 I just do my taxes and then go to her and say give me the money to pay for this, that's it. I don't have access to it. The bank book is not my withholding and when I went there and asked when all this began they said we have to contact your mother, there is a notice if you come around we have to contact your mother.

Respondent was further confronted with an Affidavit dated December 4, 2009 and signed by him, paragraph 9 of which stated that "My mother has at various times wanted to put money in a joint account because she and my father had problems in their marriage that were leading to a divorce. (Affidavit attached to Respondent's Notice of Cross Motion dated December 4, 2009).

When confronted with the above, respondent first said that his parents have not been divorced, but are still married, but he then said that his parents were divorced but that they re-married. However, respondent's mother testified that she is married to respondent's father, and did not testify about a divorce or remarriage. With respect to his statements that the divorce was the reason his mother opened a joint account with respondent, respondent did admit on cross-examination that his mother never told him that she was hiding money from his father.

As for that part of the deposition testimony above in which respondent states that he does not have the bank book, and that the bank told him they would have to notify his mother, the court notes that Ms. Radomski from BCB bank specifically testified [*11]that there was no such restriction on any of the accounts on which respondent was a joint owner.

When asked on cross-examination why he did not list the Fleet Bank Savings Account on his original March 20, 2002 application, when the account was active before and after that application, respondent simply said he "neglected" to do so. On direct, he testified that the reason he had not put the account on his application was that it had a zero balance in June, but Exhibit 14 shows that it was active in March, April and May, 2002. Respondent offers no reasonable explanation for his "neglect."

There is no question that respondent failed to report any of the Pamrapo accounts or the Fleet Savings account on his original LIHTC program application or on any of the related documents and re-certification forms and supporting documents. Respondent does not dispute that he never disclosed any of these accounts in the application process or re-certification process for his LIHTC housing at the Victory residence. While respondent, a forty-three year old man, claims little understanding of finances and the accounts he holds as joint owner, and explains that his mother made all of the decisions and controlled all of the money in the Pamrapo accounts, he did not explain why these accounts were never listed when they were clearly his joint assets, he paid taxes on the related interest, and the certifications and lease he signed clearly state that all assets must be disclosed.

While respondent tried to claim little or no knowledge of the Pamrapo accounts, testifying that he never received statements related to the accounts, this testimony is completely incredible. Respondent signed a signature card in 1996 for account #xxxx330 and in 2005 for account #xxxxx420. His mother testified that the entire reason for the first account was to encourage her son to move back home, which he did in 2000, yet she then insists that she never gave him access to the money she promised him.It is difficult to believe that a then 31 year old man without a job would not be aware of the very account offered to him if he returned to the area. Not only was this incredible on its face, but respondent was impeached with prior testimony and a sworn affidavit in which he admitted knowing that he was a joint owner of the Pamrapo accounts. He was impeached further with his insistence that his mother put the money in the accounts because of his parents' impending divorce, which appears to have been a complete fabrication considering his mother's testimony that she and her husband are still married and living together, and the lack of any supporting evidence to the contrary.Respondent cannot credibly claim lack of knowledge of the second account, #xxxxx420, because he received 1099 forms for the account each year, which he then had to disclose in his tax returns. Even with this very obvious proof of knowledge, he still tried to distance himself from this account by claiming that his mother reimbursed him for the [*12]taxes he paid on income from the account.

As for the account he shares with his father, again respondent claims little knowledge but his evasive and contradictory testimony suggests that he was aware of all the existing accounts.

When respondent signed his application, as well as the original New York State Housing Finance Agency income verification forms and the re-certification forms to follow, he was made very much aware that a failure to disclose would be considered fraud and could result in the loss of his tenancy. The most significant part of the certification on his application is the following, which is directly above respondent's signature: I/We understand that false statements or information is punishable by law and will lead to cancellation of this application or termination of tenancy after occupancy. Misleading or incomplete information is also grounds for rejection of an application.

Similarly, on the New York State Housing Finance Agency Tenant Income Certification, respondent affirmed that he was giving accurate information in connection with his eligibility for a low income housing unit. The "Certification" states, inter alia, that,I/We understand that false statements or information is punishable by law and will lead to cancellation of this application or termination of tenancy after occupancy. Misleading or incomplete information is also grounds for rejection of an application.

Paragraphs 3 and 5 of the lease rider, the relevant portions of which are set forth herein, are even more detailed and warned respondent in bold letters what the consequences of failing to disclose all income would be.

Paragraph 3 warns that a tenant who provides, inter alia, incomplete or false information in his or her initial certification or in the re-certification shall be considered in material non-compliance with the lease and shall be subject to eviction and paragraph 5 warns that "Landlord has the right to terminate the Lease, evict Tenant, and recover possession of the unit, if Tenant has obtained status as an "Eligible Tenant" by falsely certifying household income on any of the screening, application, or certification documents. Such false certification constitutes a material noncompliance under the Lease."

Respondent was put on notice of the consequences of not reporting all of his assets. Significantly, neither the certifications above his signatures nor the lease riders include the words "knowingly" or "intentionally", so even if he had proven that he failed to report the Pamrapo accounts and Fleet account by mistake, he is still in material non-compliance with his lease pursuant to the lease rider and the requirements of the program.

At trial, the only defense that respondent raised with respect to his failure to disclose the subject accounts was that because the Pamrapo accounts were located in a New Jersey bank, New Jersey banking law applies, and New Jersey Statue §17:161-4(a) provides that if a joint owner of an account does not make any deposits into the account, [*13]he or she is never a legal owner of those accounts. Therefore, respondent argues, since he made no deposits, he is not an owner of the Pamrapo accounts and was not required to claim them as assets in his application and certifications. He further argues that petitioner failed to prove that respondent's mother made a valid inter vivos gift, the only other way that ownership could have been established. Respondent offers no such defense to the omission of the Fleet Savings account, which is not based in New Jersey.

New Jersey Law is inapplicable to this matter. Only federal law and New York State law apply. The subject premises is located in New York, it is rent stabilized pursuant to New York law based on its participation in the tax abatement program pursuant to Real Property Tax Law 421-a. The Low Income Housing Tax Credit (LIHTC) program is an Internal Revenue Service program administered and regulated at the local level by the New York State Housing Finance Agency. According to the LIHTC Rider, Paragraph 3(a), income qualification is based upon the "New York Primary Metropolitan Statistical Area (AMI)." The LIHTC statute and regulations regulating the program are federal regulations (Internal Revenue Code [26 USC] § 42; 26 CFR 1.42-0 et Seq.), and as Ms. Litardo testified, the HUD Occupancy Handbook is used to govern eligibility for the program.

Moreover, the New Jersey statute that respondent cites applies to determining rights of survivorship absent proof of net contributions. The statute is used to determine ownership when a controversy arises between parties to an account, or access to creditors, and determining the interest of successors. The statute does not apply to housing programs in New Jersey or elsewhere in which eligibility for the program is determined based on an individual's assets.

Respondent has failed to establish that an obviously inapplicable New Jersey statute should be used to determine ownership of respondent's bank accounts for purposes of his income eligibility for the LIHTC program. Ms. Litardo, the manager of the affordable housing units at issue here, has very credibly testified that the HUD handbook specifically entitled, "Determining Income and Calculating Rent" historically has been used to determine how to calculate one's income for purposes of eligibility. Respondent presented no evidence to discredit her, nor any evidence to show that the LIHTC program in New York City is regulated by any law other than New York State and federal law.

This court finds respondent's arguments unpersuasive and finds that petitioner's calculations of respondent's rent based on the HUD handbook and directives are reasonable and accurate. Again, respondent failed to challenge Ms. Litardo with respect to those calculations. Finally, the Court finds that both respondent, and his witness, Pasqualina Annunziata, presented incredible and contradictory testimony.

After careful consideration of all the testimony, the credibility of the [*14]witnesses, and documentary evidence elicited at the trial, the Court finds that under the circumstances of this case, petitioner has proven by a preponderance of the credible evidence that respondent is in substantial non-compliance with his lease. Pursuant to the Rent Stabilization Law as well as paragraphs 3 and 5 of the lease rider, his tenancy must therefore be terminated.

Accordingly, after trial, a judgement of possession is entered in favor of petitioner. Issuance of the warrant shall be forthwith, with execution stayed three months after Notice of Entry is served on respondent, on condition respondent pay monthly use and occupancy as it becomes due at the amount stated in the last lease between the parties.

This constitutes the decision and order of the Court.

Dated: New York, New York___________________________

June 19, 2012PETER M. WENDT, J.H.C.