Opinion
2005-758 Q C.
January 9, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), entered April 19, 2005. The order granted respondent's motion to dismiss the petition and denied petitioner's cross motion for summary judgment in a nonpayment summary proceeding.
Horing Welikson Rosen, P.C., Williston Park ( Niles C. Welikson of counsel), for appellant.
Queens Legal Services Corporation, Jamaica ( Carl O. Callender and Antonette Lettman of counsel), for respondent.
Legal Aid Society ( April A. Newbauer, Oda Friedheim and Josephine Flores, Kew Gardens, and Scott Rosenberg and Judith Goldiner, New York City, of counsel), amicus curiae.
PESCE, P.J., GOLIA and BELEN, JJ., concur.
OPINION OF THE COURT
MEMORANDUM.
Order unanimously affirmed with $10 costs.
In this nonpayment proceeding, tenant moved to dismiss, claiming, amongst other things, that she is a recipient of section 8 assistance and that the rents sought consist solely of the section 8 portion of the rent. Landlord cross-moved for summary judgment, claiming that it had discontinued its participation in the section 8 voucher program and had so notified tenant, and that the parties had renewed only tenant's lease and not the section 8 agreement ( cf. 7 Highland Mgt. Corp. v. McCray, 9 Misc 3d 129 [A], 2005 NY Slip Op 51530[U] [App Term, 9th 10th Jud Dists 2005]). In opposition to landlord's cross motion, tenant showed, inter alia, that landlord is a recipient of a "J-51" tax abatement under what is now section 11-243 of the Administrative Code of the City of New York, and argued that, as a consequence, landlord could not validly discontinue its participation in the section 8 program. Subdivision (k) of section 11-243 provides that a landlord shall not deny a dwelling accommodation in a property receiving such an abatement to any person because of his "being eligible for a governmentally funded housing assistance program, including, but not limited to, the section 8 housing voucher program."
As a general rule, a party that accepts the benefit of a statute is estopped from seeking to avoid the obligations imposed by the statute ( see Pavone v. Aetna Cas. Sur. Co., 91 Misc 2d 658, 662-663; 31 CJS, Estoppel and Waiver § 124). Thus, since landlord receives the benefit of the J-51 program, it may not avoid its obligation under the program to accept section 8 subsidy payments on behalf of tenant. Landlord's contention that subdivision (k) of section 11-243 requires it to accept the assisted tenant but not her voucher cannot be sustained, for it would have the effect of rendering the antidiscrimination provision meaningless ( cf. Estevez v. Cosmopolitan Assoc., LLC, 2005 WL 3164146, *4, 2005 US Dist LEXIS 29844, *11 [ED NY 2005] [under a federal statute giving section 8 enhanced-voucher tenants the right to remain in the project, landlord was obligated to accept the tenants' vouchers because otherwise "the protection the statute was enacted to afford would be eliminated"]; Jeanty v. Shore Terrace Realty Assn., 2004 WL 1794496, 2004 US Dist LEXIS 15773 [SD NY 2004] [same]). Accordingly, since landlord was not within its rights in refusing to accept or credit section 8 subsidy payments on behalf of tenant and since landlord's actions engendered the rent default, if any, this proceeding must be dismissed ( see e.g. Jandson Realty Corp. v. Rogers, 192 Misc 2d 505 [App Term, 9th 10th Jud Dists 2002]; Starrett City v. Hamilton, NYLJ, Feb. 21, 1991, at 27, col 6 [App Term, 2d 11th Jud Dists]; see also Franklin Tower One, L.L.C. v. N.M., 157 NJ 602, 725 A2d 1104).
We do not reach the issue of whether landlord could opt out of the section 8 subsidy program were it not currently receiving the benefits of the J-51 program.