Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Motion for: Amend Answer PAPERS NUMBERED Notice of Motion and Affidavits Annexed 1-2 Order to Show Cause and Affidavits Annexed Answering Affidavits 16 Replying Affidavits 25 Exhibits 3-15, 17-24, Stipulations Other Decision/Order Upon the foregoing cited papers, the Decision/Order in this Motion is as follows: Petitioner commenced this non-payment proceeding on September 8, 2019. Respondent appeared pro se and interposed an answer. Subsequently, respondent retained counsel and now moves for an order granting leave to file an amended answer, granting summary judgment based on petitioner’s failure to comply with RPAPL sec 711 (2) or, in the alternative, granting partial summary judgment and dismissing all claims for rent in excess of $413.00 per month from April 2019 based on petitioner’s failure to comply with the requirements for termination of respondent’s subsidy as set forth in the HUD Handbook. Petitioner terminated respondent’s rent subsidy based on under-utilization of her three bedroom apartment after a change in the family composition and respondent’s rejection of petitioner’s offer of two separate two bedroom apartments. Respondent contends that petitioner’s termination notice dated March 18, 2019 did not comply with HUD’s requirements for a termination notice pursuant to the HUD Handbook, Chapter 8-6 (A)(3)(a-e) and HUD Model lease par. 17(b). Respondent specifically argues that petitioner failed to provide respondent with notice that she has a right to request a meeting with petitioner within ten days of the date of the termination notice, and that petitioner may terminate her tenancy and seek to enforce the termination in court. Petitioner seeks market rent of $1566.00 per month in the petition, and respondent asserts that since the termination notice was not in compliance with HUD regulations, respondent’s subsidy was improperly terminated and petitioner was precluded from maintaining this proceeding in which it seeks market rent. In its letter dated March 18, 2019, petitioner informed respondent that she was longer eligible to receive housing assistance, her housing assistance will terminate on April 1, 2019 and respondent will be billed $1553.00 when her housing assistance is terminated. The HUD Handbook 4350.3, which addresses termination of assistance in sec 8.6, provides that the landlord must provide proper notice to the tenant of the increase in the tenant’s rent and the written notice should include: the date on which the assistance will terminate; the reason(s) for the termination of assistance; the amount of rent the tenant will be required to pay; notification that upon respondent’s failure to pay the increased rent, the landlord may terminate the tenancy and seek to enforce the termination in court; and within ten calendar days from the date of the notice, the tenant has a right to request a meeting with the owner to discuss the proposed termination of assistance. Petitioner then served respondent with a “validation notice” dated August 6, 2019 which informed respondent that she had 30 days to challenge the validity of the debt along with a rent default letter stating that respondent owed $3,542.00 in rent from May 2019 to August 2019. In a notice dated August 13, 2019, petitioner informed respondent that her tenancy is deemed terminated effective August 31, 2019. The letter advised respondent that she had until August 31, 2019 to contact the landlord and reach an accord with the landlord, and if there was no accord, the landlord would commence summary proceedings. Petitioner asserts that it complied with the requirements of the HUD Handbook as well as HUD’s transfer policy. Respondent signed a lease amendment on May 21, 2019 which stated that respondent’s subsidy was terminated because she refused to transfer as agreed or submitted false data. Moreover, petitioner contends that the rent demand gave respondent a good faith estimate of the rent that was due. However, petitioner does not address the HUD requirements specific to termination of assistance and its failure to provide respondent with notice that her tenancy could be terminated if she fails to pay the increased rental amount, as well as respondent’s right to request a meeting to discuss the proposed termination of assistance. Petitioner’s notice dated August 13, 2019 did terminate respondent’s tenancy effective August 31, 2019, although respondent was not notified of this consequence of her failure to pay the increased rent. Further, petitioner did not inform respondent that she had a right to discuss the termination of her subsidy within a specified period of time. Thus, petitioner’s failure to provide notice as required under HUD Handbook 4530.3 Sec 8-6.3 makes petitioner’s termination of respondent’s subsidy improper, and bars petitioner from maintaining a summary proceeding seeking the increased rent (see Starrett City Inc. v. Brownlee, 22 Misc3d 28, [App Term 2nd Dept., 2008], Westbeth Corp. HDFC Inc. v. Ramscale Products Inc. 37 Misc 3d 13[App Term 1st Dept, 2012]. Although petitioner claims that respondent could have asserted her defenses and counterclaims in her pro se answer, and respondent states no factual or legal basis for granting leave to file an amended answer, it is evident that respondent is not an attorney and she did not have an attorney when she filed her pro se answer. Further, petitioner does not claim to be prejudiced or surprised by respondent’s filing of an amended answer. CPLR sec 3025 provides that leave shall be freely given when a party seeks to amend or supplement its pleadings, and respondent’s proposed answer is now deemed filed and served. Petitioner’s rent demand is also defective as it seeks market rent which petitioner is not entitled to based on the improper termination of respondent’s subsidy. Based on the foregoing, respondent’s motion is granted and the petition is dismissed. This constitutes the decision and order of this court. Dated: January 6, 2020
