Prospect Hgts. Assoc. v Gonzalez
Annotate this CaseDecided on October 26, 2011
Civil Court of the City of New York, Kings County
Prospect Heights Associates, Petitioner,
against
Rosemary Gonzalez, Respondent,
L & T 104610/2010
Petitioner's attorney:
Sperber, Denenberg & Kahan, P.C.
48 West 37th Street
16th floor
New York, NY 10018
(212) 3351-1335
Respondent's attorney:
South Brooklyn Legal Services, Inc.
105 Court Street
Brooklyn, NY 11201
(718) 237-5500
Laurie L. Lau, J.
After the service of a Rent Demand Notice (the "Rent Demand"), dated November 4, 2010, petitioner commenced this nonpayment proceeding seeking to recover outstanding rent for apartment 2D (the "Apartment"), in the building located at 781 Washington Avenue, in Brooklyn (the "Building"). When respondent failed to appear or answer petitioner obtained a default judgment against respondent in the sum of $7207.00. By decision and order dated May 23, 2011, this court vacated respondent's default. Respondent interposed a written answer, and after several adjournments, now moves for summary judgment.
Respondent advances three grounds for summary judgment. The first is that petitioner erroneously respondent's rent subsidy when it incorrectly determined that respondent failed to report the income of Ashley Crespo, her sister, during her recertification; respondent asserts that Ashley Crespo was merely a transient guest, rather than a resident of the apartment, and that she had no obligation to report her income.
The second ground advanced for summary judgment is that petitioner failed to provide sufficient requisite notice that respondent's subsidy would be terminated. The third ground advanced in support of summary judgment is that petitioner improperly seeks to recover market rent through a nonpayment proceeding, but is instead required to offer respondent a repayment plan.
Petitioner opposes summary judgment, asserting that it acted properly in terminating respondent's subsidy for failing to provide complete and accurate information during recertification, that all required notices were provided and proper in form, and that petitioner was entitled to seek, and properly sought, market rent in the context of a nonpayment proceeding.
Summary judgment is the procedural equivalent of a trial (S. J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]), and is warranted only when the proponent makes an unrebutted prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]). If there is any doubt as to whether a triable issue of material fact exists, summary judgment should not be granted (See Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]).
Petitioner disputes respondent's first asserted ground for summary judgment, asserting that petitioner improperly terminated the subsidy because Ashley Crespo was a guest rather than a member of the household whose income needed to be reported. Petitioner specifically claims that it revoked her guest status and notified respondent that it was doing so, and that when she ceased to be a guest but remained in the Apartment, respondent became obligated to report her income.
The court cannot, on these grounds, determine that one party is entitled to judgment, without first reconciling their divergent factual claims, a step forbidden in the context of a summary judgment motion. To the extent respondent's motion seeks summary judgment based [*2]upon improper termination of the subsidy, it is therefore denied.
The next ground advanced by respondent is that petitioner failed to serve notices required by regulations of the Department of Housing and Urban Development and the United States Department of Housing and Urban Development Handbook 4350.3 REV-1 CHG-3 (the "HUD Handbook"). Specifically, respondent asserts that petitioner failed to provide her with notice that her subsidy would be terminated in violation of both the lease and the requirements of HUD regulations and the HUD Handbook. Petitioner asserts that all notices required were sent, and annexes copies of the notices it sent. Those include documents entitled Annual Recertification First Reminder Notice, dated March 1, 2010, Annual Recertification Second Reminder Notice, dated April 1, 2010, and Annual Recertification Third Reminder Notice, dated May 1, 2010, a document entitled Rent Demand Notice dated November 4, 2010 (the "Rent Demand"), and letter dated May 5, 2010.
Paragraph 15 of respondent's lease provides that
[I] f the tenant does not submit the required recertification information by the date specified in the Landlord's request, the landlord may impose the following penalties. The Landlord may implement these penalties only in accordance with the administrative procedures and time frames specified in HUD's regulations, handbooks and instructions related to the administration of multifamily subsidy programs.
(1) Require the Tenant to pay the higher, HUD-approved market rent for the unit.
Termination of assistance is permitted if the tenant "fails to provide required information at the time of recertification," (HUD Handbook ch. 8, ¶ 8-5[A]). The HUD Handbook is specific in its requirements of notice before termination of assistance, requiring that
When terminating assistance, an owner must provide proper notice to thetenant of the increase in the tenant's rent.
***
3. Written notice **should** include:
a. The specific date the assistance will terminate;
b. The reason(s) for terminating assistance;
c. The amount of rent the tenant will be required to pay;
d. Notification that if the tenant fails to pay the increased rent, the
owner may terminate tenancy and seek to enforce the termination in court; and
e. **The tenant has a right to request, within 10 calendar days from the date of the notice, a meeting with the owner to discuss the proposed termination of assistance.**
4. The notice **should** be served by:
a. Sending a letter by first class mail, properly stamped and addressed and including a return address, to the tenant at the unit address; and
b. Delivering a copy of the notice 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 [*3]
door.
5. The date on which the notice is deemed received by the tenant is the later of:
a. The date the first class letter is mailed; or
b. The date the notice is properly given.
6. Service of the notice is deemed effective once the notice has been both mailed and hand delivered.
(HUD Handbook ch 8, ¶8-6[A][3-6])
The notices regarding recertification, while a required step in annual recertification (HUD Handbook ch 7, ¶7-7 [b][1-4]), do not manifest any immediate intent to terminate respondent's subsidy, and warn of what could happen if the recipient either supplies required information late or fails to supply it at all. Those letter sent by petitioner, dated May 5, 2010, warns respondent that her sister's guest status will be revoked at the end of the term for which it was given, without specifying a date, and warns that if she remains in the apartment after the revocation becomes effective, appropriate legal action will be taken, including termination of the subsidy. There is no proof presented or assertion made that the letter was both hand-delivered and mailed. The letter fails to state what the rent will be after termination of the subsidy, and does not advise respondent that the failure to pay the rent after the termination of the subsidy could result in actions by petitioner to terminate the tenancy and enforce that termination through litigation.
The only other notice petitioner asserts was provided to respondent was the Rent Demand, which also characterized itself as a ten day notice of termination of respondent's tenancy. It makes no mention of intent to terminate subsidy assistance, as petitioner was already treating the subsidy as having terminated, and sought market rent to be for all of the months that the notice asserted were due.
While petitioner appears to equate termination of the tenancy and termination of the subsidy the HUD Handbook plainly distinguishes between the two, establishing distinct procedural steps for each. While petitioner claims compliance with the requirements for termination of the subsidy, there is no documentary evidence to support that contention, and there is not even an allegation that petitioner served respondent with a notice of intent to terminate the subsidy assistance. The absence of that notice renders petitioner's rent demand, seeking market rent, fatally flawed. In the absence of a proper rent demand, petitioner cannot establish a prima facie case.
Respondent has made an unrebutted showing of entitlement to relief, and this proceeding is therefore dismissed.
This is the decision and order of the court.
Dated: Brooklyn, New York
October 26, 2011 [*4]
Laurie L. Lau, J.H.C.
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