Recitation, as Required By CPLR Section 2219(A), of the Papers Considered in the Review of this Motion:.Papers NumberedNotice of Motion and Affirmation and Affidavit and Exhibits Annexed 1Answering Affirmation and Affidavit and Exhibits Annexed 2Replying Affirmation 3DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS: Petitioner commenced this nonpayment proceeding to recover possession of apartment 2H at 585 Blake Avenue, Brooklyn, New York. The petition demands $9,207.00 in rent based on a November 2017 balance of $38.00, $1,488.00 per month for December 2017 through May 2018, and $241.00 for June 2018. Paragraph 6 of the petition states the apartment is unregulated because it is located in a multi-family housing project regulated by HUD, under authority of 42 U.S.C. 1437 (f)(b), Section 8(b) of the US Housing act of 1937 as in effect before October 1, 1983, and is part of the Section 8 Substantial Rehab Program.Petitioner appears by counsel. Respondent initially appeared pro se and filed an oral pro se answer interposing defenses that the rent or part of the rent was paid, breach of the warranty of habitability, and a general denial. Respondent subsequently retained counsel, and interposed additional affirmative defenses in a verified, amended answer1.The first affirmative defense in the amended answer asserts the petition is defective as petitioner terminated her rental subsidy without proper notification according to HUD Handbook regulations. She states she never received a termination notice by first class mail and by personal delivery as required by the HUD handbook regulations. The petitioner failed to properly notify her subsidy was terminated and the landlord is not entitled to charge her the full market rate of $1,488.00 for six months. The second affirmative defense asserts the rent demand is defective because it claims a monthly rent for the full market rate which it cannot charge her, as petitioner failed to properly notify her the subsidy was terminated. The third affirmative defense asserts a rent overcharge, as petitioner caused repeated undue delays in her annual recertification, and instead of readjusting her monthly rent on or around November 2017, petitioner did not recalculate her rent until June 2018. This delay caused an overcharge of $1,488.00 for six months when her rent was actually only $241.00 for those six months, constituting a $7,482.00 overcharge. The fourth affirmative defense asserts a breach of the warranty of habitability. Respondent interposes counterclaims for rent overcharge, attorneys fees, and seeks an order to correct Housing Maintenance Code violations at the premises.Respondent moves by notice of motion for an order pursuant to CPLR 3212 granting her summary judgment on her first and second affirmative defenses of her amended answer, and dismissing the petition. Petitioner opposes the motion.Respondent argues petitioner fails to state a cause of action as it cannot charge her the market rent of $1,488.00 for her unit, from December 2017 through May 2018, as demanded in the petition, because petitioner failed to properly notify her of the termination of her subsidy pursuant to HUD handbook requirements. Respondent argues the petitioner’s failure to follow the HUD Handbook regulations precludes the recovery of rent arrears based on market rent.Respondent makes three arguments in support of her motion. First, respondent argues none of the three notices petitioner asserts were served on her dated 7/1/17, 8/1/17 and 9/1/17 (Respondent’s C), are proper termination notices as required by the HUD Handbook, chapter 8, section 8-6. Respondent points out the 7/1/17 notice entitled “Annual Recertification First Reminder Notice”, and the 8/1/17 notice entitled “Annual Recertifcation Second Reminder Notice” are not termination notices but reminder notices provided to tenants during the recertification process pursuant to a separate HUD Handbook requirement. Respondent contends that the third notice dated 9/1/17 is ambiguous as it is entitled “Third Reminder Notice Notice To Terminate,” and the content is nearly identical to the 7/1/17 and 8/1/17 notices. Respondent points out that the 9/1/17 notice fails to inform her tenancy is terminated, rather it only informs her if she did not respond before a certain date, her lease gives petitioner the right to terminate her assistance and charge her market rent of $1885 effective 11/1/17.Respondent’s second argument is that even if any of those three notices are held to be compliant with the HUD Handbook regulations, they were not served by regular first class mail and by personal delivery, as is required by HUD Handbook regulations Section 8-8(A)[4]. Respondent’s affidavit in support states she has lived in the apartment for twenty eight years, she received notice from her landlord on or around August 2017 that it was time for her annual recertification, and when she contacted the management office she was told to come to the office in November. She states she provided some documents and signed papers in the management office in November that she believed to be sufficient for her recertification. She states on or around November 24, 2017 she received a notice of termination from her landlord alleging she did not complete her recertification, and on or around the end of January received notification the landlord started a holdover proceeding against her. She states that she spoke with management many times in the context of the holdover proceeding and they repeatedly asked for additional documents they did not request initially and she provided them. Respondent states she was never notified that her subsidy was terminated and she would have to pay market rent while this process dragged on. She states on at least one occasion around February 2018 she spoke with “Mr. Gordon” who assured her that her subsidy was not terminated, however, she fails to identify who “Mr. Gordon” is in relation to the petitioner. She states she believes her subsidy termination was unjust and the landlord cannot charge her market rent for the months she was in the process of re-certifying.Respondent’s third argument is that the three notices are defective as they claim the market rent is $1,885.00, however, petitioner has been charging her $1,488.00.Petitioner argues in opposition that despite the delivery of three reminder notices respondent refers to (Respondent’s C, Petitioner’s A), respondent failed to complete her annual recertification due by 11/1/2017 and her subsidy was terminated. Petitioner argues the parties’ earlier holdover case was discontinued without prejudice to $9,935.00 due through 5/31/18, with petitioner reserving the right to seek those arrears in a nonpayment proceeding. A copy of the 5/29/18 L&T 54545/18 two attorney discontinuance stipulation is appended as Petitioner’s D. Petitioner argues it also send additional notices notifying respondent what missing documents respondent needed to bring in to complete her recertification. (Petitioner’s B)Petitioner’s agent, Karol Arizmendi, states in her affidavit respondent resides at this project based Section 8 where all tenants are required to recertify annually. Ms. Arizmendi states respondent has resided at the premises since 2007 and her annual recertification has been due by November 1st every year since then. Ms. Arizmendi refers to the three notices dated 7/1/17, 8/1/17 and 9/1/17 notices both parties append. (Respondent’s C, Petitioner’s A) She states on or about 7/1/17 she delivered the Annual Certification First Reminder Notice under respondent’s door. She states on or about 8/1/17 she delivered the Annual Certification Second Reminder Notice under respondent’s door, and on or about 9/1/17 she delivered the Annual Certification Third Reminder Notice under respondent’s door. She states she provided additional notices dated 9/18/17, 11/10/17 and 11/16/17 specifying which documents were needed to complete the recertification. (Petitioner’s B). Ms. Arizmendi states respondent failed to timely complete her annual recertification so her subsidy was terminated, and rent billed $1,488.00 per month effective 11/1/2018. She states respondent then completed her recertification effective 6/1/18 and her rent became $241.00. She states respondent owes $9,927.00 in rent.Petitioner argues that respondent cites to portions of the HUD Handbook, requiring petitioner to serve the notices by first class mail and delivering a copy to the tenant at the apartment. However, the HUD Handbook does not mandate the notices by served by both means. Petitioner contends that owners of project based Section 8 units are required to comply with the HUD Handbook procedures inasmuch as those provisions are mandatory, but the HUD Handbook does not mandate that the notices be served by first class mail and personal delivery.Petitioner argues there is no prejudice to respondent if petitioner seeks a lower amount of market rent ($1,488.00) than it may be legally entitled to ($1,885.00).Respondent argues in reply that petitioner cites no authority in support of its claims that the HUD Handbook’s use of “should” instead of “must” in the termination notice requirements are advisory rather than mandatory. Respondent argues petitioner’s own case law contradicts that viewpoint. Respondent contends that while the HUD handbook often uses “must”, that does not imply the rest of the language is a suggestion rather than a directive, as New York courts have consistently held HUD Handbook regulations are mandatory despite the Handbook’s use of “should” throughout. Respondent points out that petitioner provides no authority that respondent was not prejudiced as petitioner’s notices stated her rent would become $1885.00, rather than the lower rent charged of $1445.00. Petitioner failed to follow the directive that any termination notice must also specify the market rent a tenant will pay if they do not recertify.DISCUSSION:The HUD Handbook 4350.3 REV-1 Section 8-6 Procedures for Terminating or Reinstating Assistance, Sections A. 1., 2., 3, and 4., states:A. Terminating Assistance.1. When terminating a tenant’s assistance, the owner increases the tenant’s rent to market rent (or contract rent) and, where applicable, makes the assistance available to another tenant.2. When terminating assistance, an owner must provide proper notice to the tenant of the increase in the tenant’s rent.REMINDER: When provided to a tenant with a disability, this notice must be in a form accessible to the tenant (e.g. in Braille or audio form for a tenant with a vision impairment).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; ande. 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; andb. 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 door.“…HUD requires that owners of buildings with tenants who receive federal subsidies, including Section 8 tenants, must follow mandatory written procedures before they may seek evictions…” In the Matter of Henry Phipps Plaza South Associates, v. Quijano, 137 AD3d 602 (AD, 1st Dept, 2016) reversed based upon the AT dissent (45 Misc 3d 12[2014] at 4). An improper termination of the Section 8 subsidy “bars the maintenance of a nonpayment proceeding…” Starrett City, Inc. v. Brownlee, 22 Misc 3d 38, at 40. “…The provisions of the Handbook are intended to be mandatory, and are so treated by New York courts…” Green Avenue Associates, v. Cardwell, 191 Misc 2d 775 at 777, 778 (Civ Ct, Kings Co, 2002), see also Jackson Terrace Associates, v. Rice, 142 Misc 2d 438 (Dist Ct Nass Cty, 1988)Summary judgment “…should only be employed when there is no doubt as to the absence of triable issues…” Andre v. Pomeroy, 35 NY2d 361 at 364 (1974). The moving party on a summary judgment motion must establish a cause of action or defense by admissible evidence sufficient for the court to direct judgment in his favor as a matter of law. Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065 (1979). CPLR 3212(b) The party opposing the summary judgment motion must lay bare its proof to establish that any real and alleged matters are capable of being established at trial. Zuckerman v. City of New York, et.al, 49 NY2d 557. See also Hasbrouck v. City of Gloversville, 102 AD2d 905 (AD 3rd Dept. 1984) aff’d 63 NY2d 916 (1984).Petitioner’s notices dated 7/1/17, 8/1/17 and 9/1/17 fail to comply with HUD Handbook procedures for terminating assistance under 8-6 A, 3 a, b, c, d, and e. Petitioner’s notices dated 7/1/17 entitled “Annual Certification First Reminder Notice” and 8/1/17 “Annual Recertification Second Reminder Notice”, do not comply with the HUD Handbook’s requirements 8-6 A. 3 d. and e., of procedures for terminating assistance. Both notices fail to state that if the tenant fails to pay the increased rent the owner may terminate the tenancy and seek to enforce the termination in court. They also fail to state that 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.Petitioner’s notice dated 9/1/17 entitled “Annual Recertification Third Reminder Notice/Notice of Termination” does not comply with HUD Handbook requirement 8-6 A. 3 e, as it fails to state that 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.Even if any of the above three notices met HUD handbook requirements necessary to terminate a HUD tenant’s rental subsidy, petitioner fails to produce evidence that it both attempted to personally deliver and mail the notices to the respondent as required by HUD Handbook 8-6 A. 4 a., b. While respondent claims she did not receive any subsidy termination notice personally or by mail, petitioner’s agent’s affidavit in opposition states she placed each of the 7/1/17, 8/1/17, and 9/1/17 notices under respondent’s door at or about the date of the notices. However, petitioner’s agent fails to state any of those notices were also mailed to respondent by first class mail, and petitioner fails to append proof of mailing. Pursuant to HUD Handbook regulation 8-6 A. 4., any termination notice was to be served by first class mail “and” by delivering a copy to any adult answering the tenant’s door, or if no adult answered the door placed under, through or affixed to the door.Based on the foregoing, the respondent’s motion is granted and the proceeding is dismissed. Respondent has established her 1st and 2nd affirmative defenses in her amended answer sufficient for the court to direct judgment in her favor as a matter of law. Petitioner has failed to establish any real and alleged matters are capable of being established at trial. This constitutes the decision and order of this court.Dated: March 8, 2019
