Diego Beekman MHA HDFC. v Owens
Annotate this CaseDecided on November 24, 2010
Civil Court of the City of New York, Bronx County
Diego Beekman MHA HDFC., Petitioner-Landlord,
against
Tommy Owens, Respondents-Tenants.
L & T 17212/2010
RAPPAPORT, HERTZ, CHERSON and ROSENTHAL
Attorneys for Petitioner
By: DAVID I. PAUL, ESQ.
118-35 Queens Boulevard, 9th Floor
Forest Hills, New York 11375
(718) 261-7700
LEGAL SERVICES FOR NEW YORK CITY
LSNY-BRONX
Attorneys for Respondent
By: KATHRYN NEILSON, ESQ
329 East 149th Street
Bronx, New York 10451
(718) 928-3700
Sabrina B. Kraus, J.
BACKGROUND
This summary nonpayment proceeding was commenced by DIEGO BEEKMAN MHA HDFC (Petitioner) seeking to recover possession of Apartment 5B at 570 St. Mary's Street, Bronx, New York 10454 (Subject Premises), based on the allegation that Tommy Owens (Respondent) the tenant of record for the Subject Premises, has failed to pay rent due..
PROCEDURAL HISTORY
This nonpayment proceeding was commenced in March 2010. The petition seeks rental arrears from November 2008 through February 2010 totaling $6,589.00 . The monthly rent sued for is $183.00 per month for the period of March 2009 through February 2010. For the period prior to March of 2009, the Petition seeks a monthly rent of $1070.00. Respondent appeared pro-se, and filed an answer on April 5, 2010. The proceeding was originally returnable on April 12, 2010, when it was adjourned pursuant to a stipulation to April 30, for Respondent to obtain counsel.
On April 30, 2010, Legal Services NYC, Bronx, appeared on behalf of Respondent. The proceeding was adjourned pursuant to May 20, 2010, for Respondent to Subpoena NYCHA Section 8 records.
On May 20, 2010, NYCHA Section appeared and advised that Respondent had been a participant in the program since March 1, 2009, and that NYCHA had no records relevant to subsidies prior to that date. The parties stipulated that: the arrears sought in this proceeding arose from the period of August 1, 2008 through February 1, 2009; and during this period, Petitioner alleges Respondent's HUD subsidy terminated entitling Petitioner to a market rent of $1070 per month; and during this period, Respondent continued to pay, and Petitioner continued to accept $170.00 per month; and Petitioner seeks the additional $900 per month in this proceeding for the seven month period.
Petitioner also stipulated to produce copies of all notices relevant to the subsidy termination, lease, regulatory agreements, or "... other authority upon which Pet. Relies to charge Resp $1070/mo." The proceeding was adjourned to June 17, 2010, for a further settlement [*2]conference, and the production of said documents. The proceeding was adjourned on two further occasions, because Petitioner had failed to produce the stipulated documents.
On August 9, 2010, the parties stipulated to amend the petition to date, allow Respondent to serve an amended answer by September 9, 2010, and set the matter down for a trial on October 5, 2010.
On August 27, 2010 Respondent served an amended answer asserting that the demand in the petition is defective, partial payment, improper termination of the HUD subsidy, laches, and warranty of habitability. On or about September 1, 2010, Respondent moved for partial summary judgment, and/or an order of preclusion. On October 20, 2010, the Court heard oral argument motion, and reserved decision.
FACTS
Petitioner purchased the complex where the Subject Premises is located from HUD in February 2003 (deed annexed as ex J to the moving papers). In connection with the transfer, Petitioner and HUD executed a HAP contract providing that the subject complex would be operated as Section 8 project for five years, and that eighteen months prior to the expiration of this period, Petitioner would assist eligible tenants in applying for Section 8 vouchers.
Respondent is 66 years old, and has lived in the Subject Premises since 1998. Respondent's sole source of income, at the time of the proceeding, is $731.00 in SSI benefits. Respondent had been a recipient of a section 8 subsidy administered by HUD from the inception of his tenancy. Respondent asserts that the last lease amendment he signed for the Subject Premises was in May 2007, and set his rent at $170.00 per month effective August 1, 2007. Respondent asserts that he never received any notification of his 2008 re-certification, nor any notification that his subsidy was going to be terminated.
Respondent states that despite his continued payment of $170 per month, Petitioner did start billing him for a higher amount. Respondent states that he went to the managing agent's offices on several occasions to resolve the discrepancy, and that he was advised by Angel, an individual working in the management office that the problem was being resolved. Respondent further states that he went back to the management office monthly, to pay ongoing rent and inquiry about the discrepancy. Respondent states he was consistently told that it was being resolved, and that he should not worry about it.
Respondent applied for and received approval for the transition from receiving the HUD subsidy to the NYCHA administered Section 8 subsidy effective March 1, 2009, and that his monthly rent was set at $183.00 per month. Respondent states that he had no idea Petitioner intended to seek the arrears sued for, until he received a ten day notice for said arrears, in March 2010.
Petitioner does not dispute any of the facts asserted by Respondent, except mailing of the notices. Petitioner submits in opposition the affidavit of Yesenia Gonzalez, who attests that she mailed the first three reminder notices, at or about the date of said notices, and that Respondent never responded to the notices "..or came to the office to re-certify his HUD subsidy for August 1, 2008."
MOTION
Respondent seeks summary judgment on his second affirmative defense, seeking dismissal of Petitioner's claim for the differential of $900 per month, for the seven month period during which the HUD subsidy was terminated. Respondent argues that the termination was improper, and thus void. [*3]
Respondent also seeks summary judgment on his third affirmative defense of laches, limiting Petitioner to a possessory judgment for the arrears sought herein. Finally, Respondent seeks an order pursuant to CPLR §3126 precluding Petitioner from offering any documentary evidence at trial, not already produced, which relate to the termination of Respondent's HUD subsidy..
Other than Ms. Gonzalez' affidavit, Petitioner's opposition addresses only the motion to strike.
DISCUSSION
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
Coronet, 167 AD2d 291 [1st Dept 1990]).
Termination of the HUD Subsidy Was Improper
Respondent's moving papers set forth in some detail the manner in which a HUD subsidy may be terminated, and the basis for his argument that the termination of his subsidy was invalid, because Petitioner failed to comply with required procedures. Respondent argues that even if the three notices sent alleged to be sent to Respondent, were in fact sent, the notices fail comply with requirements set forth in the HUD handbook.
Respondent sets forth a prima facie entitlement to summary judgment on the issue of the improper termination of Respondent's HUD subsidy. Petitioner has failed to rebut this showing.
HUD regulations require an initial notice of the re-certification requirements, executed by the tenant on the date of the annual re-certification for the prior year, plus three subsequent reminder notices prior to the termination of a tenant's subsidy for failure to re-certify.
The Court finds that the first two reminder notices alleged sent (Ex 1 to Pet aff in opp), do appear to substantially comply with the requirements set forth by the HUD handbook.
However, the Initial Notice (Ex 2 to Pet aff in opp) relied upon by Petitioner is dated June 9, 2006, and appears to have been executed in connection with the 2006 re-certification. Respondent asserts a subsequent 2007 re-certification, in or about May 2007, where his monthly rent was raised from $164 to $170. This is confirmed by Petitioner's breakdown (Ex D to moving papers) which lists Respondent's monthly share as $170.
Therefore, it would appear that Petitioner has failed to produce an Initial Notice signed and acknowledged received by Respondent, at the 2007 re-certification, as required by HUD regulations [see 12 USC 1715 l(d); 24 CFR Part 2457; "HUD Handbook" also known as HUD Directive 4350.3, § 7-7(B)(1)]. No explanation about this discrepancy is provided by Petitioner in its papers.
Additionally, the Third Reminder Notice and Notice of Termination dated June 1, 2008 (Ex 1 to Pet aff in opp), is also defective. Specifically, the Third Notice is required to specify the amount of rent the tenant will be required to pay, if the tenant fails to provide the required information by the re-certification anniversary date, and further to advise the tenant that said increase will be made without additional notice [Id at § 7-7(B)(4)(b)]. Where applicable the notice must also provide that the tenant may be evicted for noncompliance with the re-[*4]certification requirement. The notice dated June 1, 2008 clearly fails to meet these requirements.
The failure of the third notice to specify the dollar amount of rent the tenant would be required to pay if re-certification was not completed, rather than just referring to it as market rent, is a defect constituting improper termination of the subsidy, and such an improper termination bars the maintenance of a non-payment proceeding [Starrett City Inc. v. Brownlee 22 Misc 3d 38 (App Term, 2nd Dept, 2008); Bedford Gardens Co. v. Rosenberg, NYLJ, Mar. 27, 1998, p31, col2 (App Term, 2nd Dept, 1998)].
Additionally, where a subsidy is terminated by a written notice the notice, the regulations provide that the notice should be served both by first class mail and personal delivery "... to any adult person answering the door at the unit. If no adult answers the door, the person serving the notice may place it under or through the door, or affix it to the door [ Id § 8-6 (A)3(e)]. Petitioner's opposition papers assert only a mailing of the notice, and does not provide the exact date of the mailing, nor any documentary evidence supporting the manner alleged for delivery of the notice. No allegation was made that personal delivery was attempted of the notice.
In light of the defects described above, the parties' stipulation that the arrears sought in this proceeding arose from the period of August 1, 2008 through February 1, 2009, and Petitioner's bare bones submission of factual statements underlying this proceeding and in opposition to the motion, the Court grants Respondent summary judgment on its second affirmative defense, and dismisses with prejudice any claims for arrears in excess of $170.00 per month for the period of August 1, 2008 through February 1, 2009. Those portions of Respondent's motion seeking relief pursuant to CPLR § 3126, and based on the affirmative defense of laches are thus denied as moot.
As Respondent did not seek dismissal of the petition in its entirety, and as the parties stipulated to amend the Petition to include claims through and including August 2010, the proceeding is restored to the Court's calendar on December 14, 2010, in Part B,Room 360, for resolution of any remaining issues concerning rent arrears, and for resolution of Respondent's counterclaim.
This constitutes the decision and order of this Court.
___________________________
SABRINA B. KRAUS
Dated: Bronx, New York
November 24, 2010
TO:RAPPAPORT, HERTZ, CHERSON and ROSENTHAL
Attorneys for Petitioner
By: DAVID I. PAUL, ESQ.
118-35 Queens Boulevard, 9th Floor
Forest Hills, New York 11375
(718) 261-7700
LEGAL SERVICES FOR NEW YORK CITY [*5]
LSNY-BRONX
Attorneys for Respondent
By: KATHRYN NEILSON, ESQ
329 East 149th Street
Bronx, New York 10451
(718) 928-3700
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.
