DECISION & ORDER Petitioner commenced this nonpayment proceeding to recover rent arrears that accrued at market rate following its termination of respondent’s Section 8 subsidy. Petitioner premises the termination of respondent’s subsidy on her alleged failure to timely recertify her eligibility by August 31, 2017. Respondent interposed an answer, pro se at the time, asserting an affirmative defense that the petition improperly seeks that portion of her rent covered by the subsidy.Respondent now moves for partial summary judgment dismissing the petition to the extent that it seeks market rent for the period beginning September 2017 through February 2018. On her motion, respondent attacks the sufficiency and service of the reminder and termination notices that petitioner sent prior to terminating her subsidy. Respondent also contends that summary judgment is warranted because petitioner failed to inquire about the existence of any extenuating circumstances in accordance with Chapter 7 of The United States Department of Housing and Urban Development Handbook 4340.3 (the Handbook). In her affidavit in support of the motion, respondent avers that “[m]anagement never asked me about extenuating circumstances that might cause a delay in my recertification” (see affidavit of Samantha Wells, 9).Petitioner counters in its opposition papers that the above notices were sufficient in content and service and that respondent’s subsidy was otherwise properly terminated on August 31, 2017. Importantly, the Housing Specialist for petitioner’s management company, Amanda Kennedy, avers in a supporting affidavit that respondent did not complete her certification until some five-and-a half months later, on January 12, 2018.It is well-settled that the termination of a Section 8 subsidy is improper if the owner failed to comply with the Handbook’s recertification requirements; thus, the owner is barred from maintaining a summary proceeding to recover that portion of the subsidy from a tenant (see Starrett City, Inc. v. Brownlee, 22 Misc 3d 38, 40 [App Term 2008]; see also Henry Phipps Plaza S. Assoc. v. Quijano, 137 AD3d 602 [1st Dept 2016], appeal dismissed, 27 NY3d 1120 [2016]). In Henry Phipps, the owner failed to follow the Handbook’s procedural mandates for terminating a Section 8 subsidy based on fraud. Although the majority of the Appellate Term panel affirmed the judgment after trial in favor of the owner, the dissent argued that the trial court should have vacated the judgment and dismissed the proceeding. Namely, under the relevant provision of the Handbook, the owner was required to conduct an independent investigation into the fraud allegations, notify tenant in writing of those allegations, and provide tenant with an opportunity to respond. Because the owner in Henry Phipps neglected to follow these steps, the dissent concluded that the termination of tenant’s subsidy was improper (see Henry Phipps Plaza S. Assoc. Ltd., Partnership v. Quijano, 45 Misc 3d 12, 17 [App Term 2014] [Schoenfeld, J., dissenting]). On appeal, the Appellate Division unanimously reversed the majority and dismissed the proceeding “based upon the reasoning set forth in the dissenting opinion” (see Henry Phipps Plaza, supra at 602).Here, respondent has established her entitlement to partial summary judgment based on petitioner’s noncompliance with the Handbook’s mandates. Namely, “[a]t the time the tenant submits the required certification information, the owner must inquire whether extenuating circumstances prevented tenant from submitting the information prior to the certification anniversary date” (see Chapter 7- 7[B][4][b][i] [emphasis added]). Although petitioner claims that no extenuating circumstances are present, it is nevertheless undisputed that petitioner failed to make the necessary inquiry in or around January 12, 2018 — the date, according to petitioner’s own affiant, upon which respondent completed her certification. Because petitioner failed to afford respondent the opportunity to be heard at the appropriate time, its termination of her Section 8 subsidy was improper. Like the owner in Henry Phipps, petitioner’s violation of the Handbook’s procedural mandates precludes recovery of rent arrears based on market rent. In opposition to the motion, petitioner does not raise a triable issue of fact on this issue. Thus, judgment is awarded in favor of respondent on her affirmative defense.This Court has considered the remaining arguments on the motion and finds them to be without merit. Accordingly, it isORDERED that respondent Samantha Wells’ motion for partial summary judgment dismissing petitioner’s cause of action for rent arrears calculated at market rent for the period of September 2017 through February 2018 is granted; and it is furtherORDERED that the parties and attorneys are directed to appear for trial as to the surviving rent arrear claims on August 31, 2018 at 9:30 a.m. in Room 502, Part J at 141 Livingston Street.Dated: August 1, 2018
