Grand Concourse E. HDFC v DeJesus

[*1] Grand Concourse E. HDFC v DeJesus 2018 NY Slip Op 28260 Decided on August 23, 2018 Civil Court Of The City Of New York, Bronx County Bacdayan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on August 23, 2018
Civil Court of the City of New York, Bronx County

Grand Concourse East HDFC, Petitioner,

against

Juan DeJesus, Respondent.



18417/2018



Jason D. Boroff & Associates, PLLC, David S. Lee, Esq., for the Petitioner

BOOM!Health Legal Services, Emilio Paesano, Esq., for the Respondent Juan DeJesus
Karen May Bacdayan, J.

Recitation, as required by C.P.L.R. § 2219 (a), of the papers considered in review of this motion.

Papers Numbered

Notice of Motion, Affidavits and Exhibits Annexed 1

Affirmation in Opposition and Exhibits Annexed 2

Affirmation in Reply and Exhibits Annexed

After oral argument and upon the foregoing cited papers, the Decision and Order on this motion is as follows:

BACKGROUND

This holdover proceeding is brought against Respondent Juan DeJesus, a former Section 8 Housing Choice Voucher Program subsidy recipient administered by the Department of Housing Preservation and Development (DHPD), on the basis that he has breached his lease by failing to return his annual recertification package to DHPD, thereby resulting in his termination from the program effective August 31, 2010. Petitioner alleges in its Notice to Cure and Notice of Termination that Respondent has breached Paragraph 22 of his lease which requires Respondent to "promptly comply with all laws, orders, rules, requests and directions, of all governmental authorities."

Respondent moves to dismiss the proceeding on the basis that the statute of limitations for lease violations is six years and, therefore, this proceeding is time-barred. Petitioner opposes the motion on the grounds that Respondent's failure to return his annual recertification package to HPD is a continuing violation of the lease which recurs annually.

ANALYSIS

As a preliminary matter, the plain language of Respondent's lease provision does not require him to submit his annual recertification package to DHPD. A holdover proceeding based upon a landlord's termination of the lease may only be maintained where there is a conditional limitation in the lease providing for its early termination. (Hatim Group LLC v Johnson, 36 Misc [*2]3d 147[A], 2012 NY Slip Op 51631[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] citing Perotta v W. Regional Off-Track Betting Corp., 98 AD2d 1 [4th Dept, 1983].) Absent a condition to maintain his Section 8 subsidy in the lease, Petitioner cannot maintain a holdover proceeding based on Respondent's failure to maintain said subsidy. (1900 Albemarle, LLC v Solon, 57 Misc 3d 158[A], 2017 NY Slip Op 51665[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Hatim Group LLC, 36 Misc 3d 147[A], 2012 NY Slip Op 51631[U].)

Moreover, there is no law, order, rule, request or direction that imposes upon a Section 8 recipient the obligation to preserve his subsidy. Participation in the program is voluntary. Tenants can apply for a Section 8 Voucher, and the fortunate few are awarded one. Tenants who participate in the Section 8 Program generally pay a share of the total contract rent which equals 30 percent of their income.[FN1] For this reason, participating tenants who wish to continue to receive a Section 8 subsidy must recertify their income annually with the agency that administers the subsidy, in this case DHPD.[FN2] A tenant who does not recertify his income can be terminated from the program, which termination may be challenged administratively within a short time frame.[FN3] After DHPD issues a final and binding decision to terminate a tenant from the program, the tenant has four months to commence a CPLR Article 78 proceeding to challenge the termination. (CPLR 217 [a].) If the tenant misses these deadlines, or does not prevail on appeal, the tenant is foreclosed from having his subsidy restored.

However, the Respondent has not specifically moved to dismiss this proceeding on the basis that the lease does not require the Respondent to maintain his Section 8 subsidy, or on the basis that there is no law, order, rule, request or direction government agency that requires Respondent to recertify or seek restoration of his Section 8 subsidy. Rather, Respondent moves to dismiss this proceeding on the basis that it is time barred by the applicable statute of limitations, and dismissal is hereby granted on this basis.

CPLR 213 (2) provides that an action based upon "a contractual obligation or liability" [*3]must be "commenced within six years" of the accrual of the cause of action. Summary holdover proceedings alleging breach of lease are governed by the six-year statute of limitations set out in CPLR 213 (2). (See 833 N. Corp. v Tashlik & Assocs., 248 AD2d 664 [2d Dept 1998]; Roxborough Apts. Corp. v Viard, 2002 NY Slip Op 50297[U] [App Term, 1st Dept 2002]; Westminister Props. v Kass, 163 Misc 2d 773 [App Term, 1st Dept 1995].)

Here, the alleged breach of lease upon which the termination notice is based is Respondent's alleged failure to return his recertification package to DHPD resulting in his termination from the Section 8 program effective August 31, 2010. This proceeding was commenced in April 2018, which is more than six years since Respondent's alleged failure to return his recertification package to DHPD.

Petitioner's argument in opposition to Respondent's motion that Respondent's breach is a continuing violation and, thus, a new cause of action accrues each year that Respondent fails to recertify, is without merit.[FN4] Because he did not file or prevail at any conference, hearing, or post-termination appeal (actions he is not required to take under any law, order, rule, request or direction of any governmental agency), Respondent is foreclosed from restoring his Section 8 subsidy, let alone submitting an annual recertification.

Accordingly, Respondent's failure to recertify "post termination in 2012, 2013, 2014, 2015, 2017, and 2018," is not, as Petitioner's counsel argues,[FN5] the kind of continuing wrong that resets the statute of limitations because Respondent neither had a legal obligation, nor the ability under applicable law to do so. Absent a showing that an alleged breach continues to violate applicable law or continue to affect the rights of other building occupants, a landlord cannot maintain a holdover proceeding based on a breach that occurred more than six years prior its commencement. (Barklee 94 LLC v O'Keefe, 18 Misc 3d 134[A], 2008 NY Slip Op 50178[U] [App Term, 1st Dept 2008]; see also Magal Props. LLC v Gritsyk, 49 Misc 3d 144[A], 2015 NY Slip Op 51651[U] [App Term, 1st Dept 2015]; see generally 1050 Tenants Corp. v Lapidus, 289 AD2d 145 [2001] [reinstating plaintiff cooperative apartment boards cause of action for a permanent injunction where continuous use of air-conditioning unit was allegedly violative of applicable law and continued to interfere with the rights of other lesees in violation of specific lease provision].)

For the reasons set forth herein, the Petition is dismissed.

This constitutes the Decision and Order of this Court.

Dated: August 23, 2018

____________________________

HON. Karen May Bacdayan

Judge, Housing Part Footnotes

Footnote 1:Chapter 10 of the DHPD Administrative Plan, which is promulgated under the Federal authority granted to DHPD as a Public Housing Agency (PHA) at 24 C.F.R. § 982.54, sets out DHPD's policy and procedure for calculating a voucher holder's share of the rent. (Housing Choice Voucher (Section 8) Administrative Plan April 17, 2018, DHPD, https://www1.nyc.gov/assets/hpd/downloads/pdf/administrative-plan.pdf [last accessed Aug. 21, 2018].)

Footnote 2:See id at Chapter 13.

Footnote 3:Chapter 13.1 of the Administrative Plan provides: "[i]f HPD has not received the [recertification] package within this timeframe, HPD will send the tenant a 'Pre-Termination Notice of Section 8 Non-Compliance,' along with a 'Request for Conference' form. Participants will be given 15 calendar days from the date of the notice to request a conference . . . . If the family fails to respond or inadequately responds to a pre-termination notice, a termination notice will be sent that provides information concerning appeal procedures to contest the decision. Terminations will become effective the last day of the month following the date a termination notice has been sent." (Id. at Chapter 13.1). Chapter 16 of the Administrative Plan sets out DHPD's policy and procedure for hearing appeals on matters and decisions on eligibility to receive Section 8 rent subsidies post-termination.

Footnote 4: The Court notes that the preliminary notices in this proceeding do not allege that Respondent breached the lease agreement annually since 2010. Instead they state specifically that the breach occurred when DHPD terminated Respondent's subsidy in 2010 because of Respondent's failure to return the recertification package. Notices made pursuant to Section 2525.4 (b) of the Rent Stabilization Code must "state the facts necessary to establish the existence of such ground" upon which a petitioner "relies for removal or eviction of the tenant." Predicate notices cannot be cured by amendment or supplemental papers or arguments. (Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786 [1980)].)

Footnote 5:Affirmation of Petitioner's counsel at Paragraph 16.