Opinion
2017–1430 S C
04-05-2018
Mark MCDONNELL, Respondent, v. Cheryl MITCHELL, Appellant.
Nassau/Suffolk Law Services Committee, Inc. (Jeffrey Seigel and Hannah Abrams of counsel), for appellant. Francis Chery, Esq., for respondent (no brief filed).
Nassau/Suffolk Law Services Committee, Inc. (Jeffrey Seigel and Hannah Abrams of counsel), for appellant.
Francis Chery, Esq., for respondent (no brief filed).
PRESENT: ANTHONY MARANO, P.J., JERRY GARGUILO, JAMES V. BRANDS, JJ.
ORDERED that the final judgment is modified by reducing the amount of the monetary award in favor of landlord to the principal sum of $1,213; as so modified, the final judgment is affirmed, without costs.
In this nonpayment proceeding, the petition alleges that tenant's monthly rent is $1,500 and that she owes $13,628 in rent. It was uncontested at trial that tenant had received a monthly Section 8 subsidy of $1,269 and that tenant's share of the rent had been $231; that tenant had paid $635 toward the rent alleged in the petition to be due; that Section 8 had stopped paying the subsidy; and that landlord seeks to recover the full contract rent from tenant. Following the nonjury trial, the District Court awarded landlord possession and the principal sum of $10,695, which amount was calculated based on the full contract rent.
As tenant contends, absent a showing, not made here, of an agreement to the contrary, a Section 8 tenant is not liable for the Section 8 share of the rent as "rent" after the termination of the subsidy (see Rutland Rd. Assoc., L.P. v. Grier , 55 Misc 3d 128[A], 2017 NY Slip Op 50370[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Rainbow Assoc. v. Culkin , 2003 NY Slip Op 50771[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2003] ). Thus, it was error for the District Court to base the arrears award on the full contract rent. However, we reject tenant's further contention that dismissal is required based on a defective rent demand. There is no indication that landlord's pro se demand for the contract rent was made other than in good faith, and a substantive dispute over the amount of arrears does not implicate the legal sufficiency of a rent demand. Under the circumstances, we see no basis to deny landlord a judgment for the tenant's share of the rent (see Rippy v. Kyer , 23 Misc 3d 130[A], 2009 NY Slip Op 50652[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]; see also 1466 Holding Co. v. Sanchez , 40 Misc 3d 138[A], 2013 NY Slip Op 51404[U] [App Term, 1st Dept 2013] ).
We note that tenant's counsel called the trial court's attention to the cases holding that a Section 8 tenant is not liable in a nonpayment proceeding for the Section 8 share of the rent and that the court's response was to advise counsel to appeal. The court is cautioned that it is required to follow binding appellate precedent.
Accordingly, the final judgment is modified by reducing the amount of the monetary award in favor of landlord to the principal sum of $1,213.
MARANO, P.J., GARGUILO and BRANDS, JJ., concur.