New York City Hous. Auth. v Harouna
Annotate this CaseDecided on March 16, 2018
Civil Court of the City of New York, New York County
New York City Housing Authority, Plaintiff,
against
Inoussa Harouna, Defendant.
CV-008765-17/NY
Attorneys:
Plaintiff — Javier Hidalgo, Esq., Simon Meyrowitz & Meyrowitz PC
Defendant — pro se
Dakota D. Ramseur, J.
Plaintiff New York City Housing Authority ("NYCHA"), by counsel, moves for summary judgment on its complaint, which seeks to recoup $4,242.00 in section 8 subsidy payments to unrepresented Defendant/section 8 landlord Inoussa Harouna from April 1, 2016 through June 30, 2016. For the reasons below, Plaintiff's motion for summary judgment is granted solely to the extent that the Court finds, as a matter of law, that Plaintiff's obligations to make Section 8 subsidy payments terminated after March of 2016, and the matter is scheduled for trial on May 17, 2018 to adjudicate the only remaining issues: whether any overpayments were made to Defendant after March of 2016, and in what amount.
BACKGROUND FACTS
Plaintiff is a public housing corporation charged with administration and distribution of federal housing rental subsidies under the Housing Choice Voucher Program, more commonly referred to as "Section 8" (2 U.S.C. §1437f; 24 CFR § 982.1). Defendant is the landlord of 674 Sheffield Avenue, Apartment 2F, Brooklyn, New York (the "Apartment"). In late 2013, the parties signed a Housing Assistance Payment Contract (Pl Exh 1 [the "HAP Contract"]; Def 10/20/17 Aff ¶2). Pursuant to the HAP Contract, Defendant rented the apartment to Zakiyah Moore (the "Tenant"). In return, in addition to rent received directly from Tenant, Plaintiff paid Section 8 subsidies to Defendant.[FN1]
On November 4, 2015, Defendant commenced a holdover action against the Tenant (Pl Exh 4). This proceeding culminated in a so-ordered stipulation of settlement on December 3, 2015 (Pl Exh 2; Def 10/20/17 Aff Exh [the "Stipulation"]). In the Stipulation, Tenant consented to a final judgment of possession, with the "warrant to issue forthwith," stayed through March 3, 2016 (id. at ¶ 3). The Stipulation also provided that "Upon default, warrant to accelerate and execute upon service of a six (6) day notice from a New York City Marshal" (id. at ¶ 4).
DISCUSSION
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law through admissible evidence, eliminating all material issues of fact (Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut it by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1999]). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party (SSBS Realty Corp. v Public Service Mut. Ins. Co., 253 AD2d 583, 677 NYS2d 136 [1st Dept 1998]; Martin v Briggs, 235 AD2d 192, 663 NYS2d 184 [1st Dept 1997]). Thus, a party opposing a summary judgment motion must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist (Kornfeld v NRX Tech., Inc., 93 AD2d 772, 461 NYS2d 342 [1983], affd 62 NY2d 686 [1984]).
As an initial matter, the Court notes that Plaintiff has improperly utilized Defendant's failure to timely respond to a Notice to Admit as the factual predicate of the summary judgment motion. "The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. A notice to admit which goes to the heart of the matters at issue is improper (citations omitted)" (DeSilva v Rosenberg, 236 AD2d 508, 654 NYS2d 30 [2d Dept 1997]; Zohar v Hair Club for Men Ltd., 200 AD2d 453, 454 [1st Dept 1994]).
A Notice to Admit is to be used "...to elicit a stipulation regarding specific matters concerning which there is general agreement," not matters more properly obtained by another discovery device such as a deposition (Lewis v Hertz Corp., 193 AD2d 470, 597 NYS2d 368 [1st Dept 1993]; DeSilva, 236 AD2d 508; Tolchin v Glaser, 47 AD3d 922, 849 NYS2d 439 [2d Dept 2008]; Falkowitz v Kings Highway Hosp., 43 AD2d 696, 349 NYS2d 790 [2d Dept 1973]; see eg Midland Funding LLC v Valentin, 40 Misc 3d 266, 268—69 [NY Dist Ct Nassau County 2013] [finding notice to admit improper where it sought to elicit the plaintiff's prima facie case: whether the plaintiff issued a card to the defendant, whether the defendant used the card, whether the defendant defaulted, etc.).
Plaintiff's Notice to Admit strikes at the heart of the matter: whether the parties had a contract, whether Plaintiff paid Defendant, whether Defendant returned the funds, and the like. Accordingly, Plaintiff may not rely on any admissions stemming from the improper Notice. Even if a few proper requests may be interspersed in the Notice, the Court will not differentiate appropriate demands from inappropriate ones because "it is not the court's obligation to prune those pre-litigation devices" (Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453, 453—54 [1st Dept 1995]).
Nevertheless, despite these deficiencies, Defendant's affidavits in opposition[FN2] admitted many of the relevant facts, both by his statements and attachment of the same relevant documents as Plaintiff: the HAP Contract and Stipulation, both of which he acknowledged signing. Though Defendant does not deny that the Tenant was no longer present after March 3, 2016, he argues that Plaintiff has not sufficiently demonstrated that Tenant vacated, or that a warrant actually issued. Either concern, however, is irrelevant.
As noted by Plaintiff, 24 CFR 982.311 provides that
Housing assistance payments terminate when the lease is terminated by the owner in accordance with the lease. However, if the owner has commenced the process to evict the tenant, and if the family continues to reside in the unit, the PHA must continue to make housing assistance payments to the owner in accordance with the HAP contract until the owner has obtained a court judgment or other process allowing the owner to evict the tenant. The PHA may continue such payments until the family moves from or is evicted from the unit (emphases added).Where language has a plain and unambiguous meaning with regard to the particular dispute in the case, "the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent" (Barnhart v Sigmon Coal Co., Inc., 534 US 438, 450 [2002]). 24 CFR 982.311 clearly provides that either a "court judgment or other process allowing the owner to evict the tenant" terminates assistance payments (emphasis added). The stipulation here fits the definition of a "court judgment" (Metroeb Rlty Corp. v Fuller, 32 Misc 3d 941, 943 [Civ Ct NY County 2011], affd sub nom., 37 Misc 3d 126(A) [App Term 2012]).
Even if it did not, however, RPAPL 749 provides that a warrant will "put the petitioner into full possession." Thus, the warrant "allowed[ed] the owner to evict the tenant" in March of 2016, when the warrant's stay terminated, rendering the Tenant's exact vacatur date irrelevant (24 CFR 982.311). Accordingly, the Court finds that Plaintiff has demonstrated, as a matter of law, that its obligations to make payments under the HAP contract ceased in March of 2016. In opposition, Defendant has failed to introduce any issue of fact on this issue.
However, given the deficiencies in Plaintiff's Notice to Admit discussed above, and the lack of any other competent proof of payments made by Plaintiff, the issue of damages remains. That is, there is no substantive, admissible evidence in the current record that any payments were made for April 2016 through June of 2016, and in what amount. Accordingly, pursuant to CPLR 3212(c), the Court finds that an immediate trial on this issue only is warranted.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Plaintiff's motion for summary judgment is granted solely to the extent that the Court finds that Plaintiff had no obligation to make HAP Contract payments after March of 2016; and it is further
ORDERED that the issue of damages pursuant to this holding is reserved for trial, which shall be held on May 17, 2018 at 9:30 a.m. at 111 Centre St., Room 325, New York, New York; and it is further
ORDERED that Plaintiff shall send a copy of this decision and order with notice of entry to Defendant within 20 days of receipt.
This constitutes the decision and order of the Court.
Dated: March 16, 2018
New York, NY
_________________________
Dakota D. Ramseur, J.C.C.
CPLR 2219(a) Recitation
NOTICE OF MOTION & AFFIDAVIT(S) 1. Hidalgo Affirm, Exhs 1-5, 1A. Hidalgo Supp Affirm
OPPOSITION/CROSS-MOTION 2A. Harouna 10/20/17 Aff, Exh A, 2B. Harouna 1/5/18 Aff, Exh A
REPLY 3. Hidalgo Reply Affirm, Exhs 1-2 Footnotes
Footnote 1: As discussed further below, the amount is unclear from the record. That is, Plaintiff alleges payments of $1,414.00 per month, while the HAP Contract identifies payments of $1,660.00 (Pl Exh 1).
Footnote 2: By interim order dated December 12, 2017, the Court directed the parties to submit supplemental papers.
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