Recitation, as required by CPLR §2219(a), of the papers considered in the review of respondent’s motion for an order granting summary judgment pursuant to CPLR 3212. Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Answering Affidavits 2 Replying Affidavits 3 Exhibits DECISION/ORDER Upon the foregoing papers, the Decision / Order on this motion is as follows: Background Petitioner commenced the instant licensee holdover proceeding to recover possession of apartment E3A located at 3333 Broadway, New York, New York. Respondent interposed an answer asserting four affirmative defenses and two counterclaims. Respondent now moves to dismiss the proceeding on the grounds stated in her third affirmative defense that petitioner failed to name and serve the Department of Housing Preservation and Development (“HPD”) as a necessary party. In the alternative, respondent seeks dismissal based on the holding in Riverside Park Community II LLC v. Springs, 50 Misc3d 1217(A) [Civ Ct NY 2015]. Discussion Summary judgment is a drastic remedy which operates to deprive a party of its day in court. Persaud v. Darbeau, 13 AD3d 347 [2nd Dept 2004]. Therefore, the relief will only be granted, the proponent of the motion must clearly demonstrate that no material and triable issues of fact exist. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [Ct App 1957]. The respondent here has met this burden. The crux of respondent’s argument is that she has a right to remain in possession of the subject apartment because she succeeded to her grandmother’s Section 8 voucher. It is undisputed that respondent’s grandmother was the record tenant of the subject apartment which was previously a Mitchell-Lama co-op. After the building came out of the Mitchell-Lama program the decedent tenant occupied the apartment pursuant to an enhanced Section 8 voucher administered by HPD. Upon her grandmother’s death, respondent succeeded to the voucher. In support of her position, respondent notes that a granddaughter falls within the definition of family member in both the HPD Administrative Plan and HUD regulations. As a result, she asserts that she is a member of the protected class under the enhanced voucher program and therefore can only be evicted for cause. Petitioner, in opposition, argues that respondent is not entitled to a lease in her name because the premises is a fair market apartment and thus not subject to a succession. Moreover, respondent was only listed on the household composition for several weeks prior to her grandmother’s death. Consequently, although respondent has succeeded to her grandmother’s voucher, she no has no rights to the apartment. The Court finds respondent’s argument persuasive. Landlords can chose to opt out of project based assistance programs such as Mitchell Lama upon the expiration of the assistance contracts designed to provide affordable housing to low income tenants. Because of this, 42 USC §1437f provided for the creation of the enhanced voucher which is a hybrid of project based and tenant based assistance that pays the difference between the reasonable market price of the rental and he greater of thirty percent of the tenant’s household income or the rental amount that the household was paying when the tenant first became eligible for enhanced vouchers. 42 USC §1437f(t)(1)(D). Enhanced voucher assistance was available to a “family” who elected to remain in the same project in which the assistance was received. If the family moved from the project or if the voucher was made available for use by a family other than the one, the voucher was lost and Section 8 assistance reverted back to the standard tenant based voucher. Riverside Park Community II LLC v. Springs, supra. The family holding an enhanced voucher had the right to remain in the premises absent a serious or repeated lease violation or other good cause. HPD Admin. Code §19.4. As noted above enhanced vouchers, like their project based counterparts, are tied to the particular project. Hayes v. Harvey, 903 F3d 32 [US Ct App 3rd Cir 2018]. Respondent’s succession to the enhanced voucher, and not a standard voucher, is proof that she is an original member of her grandmother’s family. Riverside Park Community II LLC v. Springs, supra. Accordingly, she is entitled to the same protections as her deceased relative including the right not to be dispossessed from the apartment without cause. Additionally, respondent aptly notes that the federal regulations require petitioner to serve notice of the proceeding on HPD. 24 CFR 982.310(e)(2)(ii). Petitioner does not allege nor does it supply proof that it served the agency. This failure is also grounds for dismissal. FAC Renaissance HDFC v. Vega, 55 Misc3d 1210(A) [Civ Ct Kings 2017]. Conclusion Base on the forgoing, the motion is granted and the petition dismissed. This constitutes the decision and order of the Court. Dated: October 29, 2019 New York, New York
