Stevenson Commons Assoc. v Vargas
Annotate this CaseDecided on June 27, 2012
Civil Court of the City of New York, Bronx County
Stevenson Commons Assoc., Petitioner,
against
Elvis Vargas, Respondent.
L & T 12058/11
Counsel for Petitioner:
Doyle & Broumand, LLP
3152 Albany Crescent
Bronx, NY 10463
By: Julie A. Sargiss, Esq.
Counsel for Respondent:
Legal Services NYC-Bronx
329 East 149th Street, 3rd floor
Bronx, NY 10451
By: Ian Davie, Esq.
Susan Avery, J.
BACKGROUND
Petitioner commenced the instant non payment summary proceeding alleging that the respondent, Elvis Vargas was in rental arrears for several months, at a monthly rent of $1,094.00. The petition alleges that the apartment is not subject to rent regulation because it is subject to the provisions of "FHA Section 236" (see petition ¶7).
The respondent answered the petition in person on May 3, 2011 and subsequently retained counsel who filed a notice of appearance dated July 12, 2011.
Subsequent to retaining counsel, the matter was adjourned a number of times, and the court file indicates that there was some prior motion practice, the last of which resulted in a decision issued by Judge Verna Saunders dated November 3, 2011, in which she granted respondent leave to file an amended answer and conduct discovery. There are no notations on the jacket of the court file to indicate that there was any activity from the November 3, 2011 [*2]decision, until the initial return date of the instant motion on March 28, 2012.
THE MOTIONS BEFORE THE COURT
Petitioner moves for an order: (1) restoring this proceeding to the court calendar for trial on a date certain; and (2) pursuant to Real Property Actions and Proceedings Law ("RPAPL") §745(2) requiring the respondent to deposit rent with the court the amount of $20,371.00 representing market rent arrears through March 2012.
Respondent cross moves for partial summary judgment pursuant to Civil Practice Law and Rules ("CPLR") §§3212 and 406 based upon respondent's second affirmative defense, as stated in his amended answer, finding that the respondent's Housing and Urban Development ("HUD") subsidy was not lawfully terminated and dismissing, with prejudice, any claims by petitioner for arrears in excess of respondent's monthly portion (to wit: $285 per month). Respondent opposes the petitioner's motion to the extent that petitioner seeks sums in excess of respondent's $285 per month share.
Respondent argues that because petitioner failed to provide proper HUD mandated notices to respondent as required by the HUD handbook, that petitioner failed to properly terminate respondent's subsidy. Respondent contends that he first received the HUD required reminder notices in response to his discovery requests in this action. Respondent further argues that even if petitioner can demonstrate proper service of the reminder notices, that the notices are defective on their face.
Specifically, respondent argues that the three (3) requisite HUD reminder notices that petitioner claims to have sent, fail to comply with HUD requirements in that: they are addressed to Maria Vargas, and not respondent; assert an improper cutoff date; assert an improper recertification date; do not state the name of the staff person in charge of scheduling recertifications; and do not list the information the tenant must bring to the interview. Respondent further argues that the third reminder notice does not state the full rent that the tenant will be required to pay if he fails to recertify and does not state that the respondent may be evicted for noncompliance. Based upon the facial infirmities, respondent concludes that petitioner failed to properly terminate respondent's subsidy and as a result, respondent is entitled to summary judgment.
Petitioner opposes the cross motion. Petitioner argues that it properly served the respondent with all required notices which are facially sufficient. In support of it's position petitioner states that respondent did attempt to recertify. Petitioner contends that during the recertification process respondent submitted documents which made the petitioner conclude that respondent did not reside at the premises and therefore the respondent was not entitled to the subsidy.
SUMMARY JUDGMENT STANDARD
The proponent of a motion for summary judgment must demonstrate entitlement to judgment as a matter of law providing sufficient evidence to eliminate any material issues of fact [Winegrad v New York University Medical Center, 64 NY2d 851(1985); Alvarez v Prospect Hospital, 68 NY2d 320 (1986)]. Once such a showing is made, the burden shifts, and the opposing party must tender evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which would require a trial or tender an acceptable excuse for his or her failure to do so (see Zuckerman v City of New York, 49 NY2d 557; Greenberg v [*3]Coronet, 167 AD2d 291 [1st Dept 1990]).
HUD REQUIREMENTS
Where a tenant fails to recertify subsequent to service of the initial notice, which the landlord is required to provide to the tenant, the landlord must send subsequent reminder notices to the tenant.[FN1] The HUD handbook defines exactly what information must be included in each notice and details the annual recertification process, deadlines, and consequences of failing to recertify.
As for the initial notice, it must "refer to the requirements in the HUD model lease regarding the tenant's responsibility to recertify annually" and must specify the cutoff date.[FN2] Similar to the requirements of the initial notice, the first reminder notice must again refer to the lease requirements and cutoff date, plus, it must state the name of the staff person to contact about scheduling a recertification interview and include the location and availability of that individual. It must also list the information and documents that the tenant should bring to the interview and warn that "if the tenant fails to respond before the recertification anniversary date, the tenant will lose the assistance and will be responsible for paying the ... market rent."[FN3]
The second reminder notice "must provide all of the information given in the first reminder notice."[FN4]
The third reminder notice requires the landlord to "provide the tenant with all the information given in the first reminder notice,[FN5] and "[s]pecify the amount of rent the tenant will be required to pay if the tenant fails to provide the required recertification information by the recertification anniversary date and state that this rent increase will be made without additional notice."[FN6]
DISCUSSION
As for the notices relevant to the case at bar, the initial reminder notice is addressed to Maria Vargas and not the respondent. Respondent' s signature appears on the bottom of the notice, however, it contains the improper recertification date of August 10, 2010, rather than September 10, 2010, which is not in compliance with HUD requirements.
As for the reminder notices, each fails to state the name of the staff person in charge of scheduling the recertifications, rather each merely states that the respondent is to "meet with the property manager or recertification specialist." Each notice fails to inform the tenant of the documents and information he is to bring to the meeting. While the face of each notice states: "[w]hen you attend the interview, please bring the information on the attached checklist that [*4]pertains to your household," there was no attached checklist annexed to respondent's moving papers (see respondent's exhibit "L"). Respondent states he did not receive the referenced "checklist" nor is one annexed to any of the documents currently before the court. Indeed, the first reminder notice submitted by petitioner (served upon respondent in compliance with the discovery request) refers to an "attached checklist" yet petitioner fails to annex such a checklist to it's moving papers (see petitioners motion exhibit "2").
Additionally, the documents contain different dates for termination, and incorrect recertification anniversary dates, all of which are unexplained by petitioner.
As for the third reminder notice, contrary to the HUD rules, it fails to specifically state the amount of rent the tenant will be required to pay if the tenant fails to recertify, and it fails to inform the respondent that this increase will take effect without further notice.[FN7]
Because petitioner's notices fail to comply with HUD regulations, petitioner may not collect market rent during the period that respondent is alleged to have failed to recertify.
ORDER
Accordingly, respondent's motion is granted to the extent that the petitioner may not collect market rent from respondent and the petition is dismissed with prejudice as to those claims. In light of the determinations made herein, this court need not address respondent's other arguments. Petitioner's motion for a deposit of the market rent is denied.
To the extent that petitioner may have a valid claim for subsidized rent, this proceeding is adjourned to July 31, 2012 at 9:30 Part D, Room 550 for all purposes, including trial.
This constitutes the decision and order of the Court.
June 27, 2012
_______/s/______________
JHC
Footnotes
Footnote 1: HUD Handbook 7—7[B]
Footnote 2: HUD Handbook ¶ 7—7[B][1][a][1]—[2]
Footnote 3: HUD Handbook 7—7[B][2][b] [1]—[7]
Footnote 4: HUD Handbook ¶ 7—7[B][3][b]
Footnote 5: HUD Handbook ¶ 7—7[B][4][b] [1]
Footnote 6: HUD Handbook ¶ 7—7[B][4][b][2]
Footnote 7: HUD Handbook ¶ 7—7 [B][4][b][2]
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