W & L Assoc., LLC v Gurevich
Annotate this CaseDecided on June 27, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-694 K C. NO. 2006-694 K C
W & L Associates, LLC, Appellant,
against
Svetlana Gurevich New York City Housing Authority, Respondents.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), dated November 2, 2005. The order granted a motion by tenant to dismiss the petition and denied as moot a cross motion by landlord for, inter alia, summary judgment.
Order affirmed without costs.
In this nonpayment proceeding, the record reveals that landlord notified the New York City Housing Authority that it would no longer accept Section 8 payments on behalf of tenant after the expiration of her lease on September 30, 2003 and that landlord sent tenant a renewal lease pursuant to the terms of which tenant would be required to pay the full rent for the apartment. After tenant refused to sign the renewal
lease and continued to pay only the amount previously designated as the tenant share of the rent, landlord deemed the lease renewed on the terms set forth in the offered renewal lease (see Rent Stabilization Code [9 NYCRR] § 2523.5 [c] [2]) and commenced this proceeding seeking the unpaid balances.
Landlord's acceptance of Section 8 housing assistance payments was a term and condition of the expired lease which, under the Rent Stabilization Code, had to be continued in the renewal lease, and landlord was not within its rights in deeming tenant to have renewed the lease and to have agreed to pay the full lease rent (see Rosario v Diagonal Realty, LLC, 32 AD3d 739 [*2][2006]). Since tenant did not default in paying the tenant share of the rent, this nonpayment proceeding does not lie. Accordingly, the court below properly granted tenant's motion to dismiss the petition.
Pesce, P.J., and Weston Patterson, J., concur.
Golia, J., concurs in a separate memorandum.
Golia, J., concurs with the result only, in the following memorandum:
I am constrained to agree with the ultimate disposition in the decision reached by the majority. In light thereof, I wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with and generally contrary to my views.
To me, a conflict arises in which trial courts are rendering decisions involving Section 8 housing matters (42 USC § 1437f).
The conflict stems from the fact that local "Rent Stabilization" laws require that a landlord must offer a renewal lease on the same terms and conditions as the lease that is ending. Trial courts have interpreted that requirement to mean that the rent that is set in the renewal lease which is referable to the tenant must only be the tenant's "share" of the rent that is not paid by Section 8.
Therefore, absent any new agreement to the contrary, a landlord is obligated to renew the lease with the tenant at an artificially reduced rent. This interpretation presents a conflict should a landlord "opt out" of continuing with the Section 8 program.
A simple example may be in order.
A tenant (similar to respondent herein) signs a lease at the full "stabilized" rental value and moves into a rent stabilized apartment at a monthly rental of $1,000. That rental amount is set pursuant to the Rent Stabilization Law of 1969 based upon a prior tenant's rental and the permitted vacancy increase.
At the expiration of that lease, the tenant obtains and the landlord agrees to accept Section 8 subsidy payments predicated on the tenant's income. The one year renewal lease has been set by the Rent Stabilization Board at an increased rate of 3%. Assume the tenant's obligation based on the tenant's income as set by Section 8 for the purpose of this example amounts to $500. Therefore, the tenant makes monthly payments of $500, and Section 8 subsidizes the remaining $530 ($1,000 plus the $30 increase, less the $500 tenant obligation, results in a Section 8 subsidy of $530.)
Following the logic of my colleagues' decision herein (see also Licht v Moses, 11 Misc 3d 76 [App Term, 2d & 11th Jud Dists 2006]), the tenant's "agreed" upon rental is $500 and not the rent-stabilized amount of $1,030. Should the federal government elect to terminate the Section 8 program, as they now permit landlords to opt out of the Section 8 program, and therefore cease paying all Section 8 subsidies, the landlord would be effectively obligated to recast a rent-stabilized $1,030 apartment as a $500 apartment for the tenant.
To me, Section 8 subsidies were only meant to assist a person of modest means by "subsidizing" the payment of a portion of the full rental amount. More importantly, it was never meant to recast the amount to which a landlord was fairly entitled to receive so that a landlord would be forced to accept $500 for a $1,030 apartment. This is especially true in a city like New York where many apartments are not permitted to be rented at full market value in any event. [*3]Indeed, there are other governmental programs in which owners agree to maintain rents at a substantially reduced level in exchange for tax incentives, building code variances, etc.
To the extent my concurrence in Licht v Moses (11 Misc 3d 76, supra) runs contrary to this understanding, I now disavow that holding.
Decision Date: June 27, 2007
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
