Opinion
No. 2013–2018 W C.
03-26-2015
RIVERVIEW II PRESERVATION, L.P., Respondent, v. Glory BRICE–FRAZIER, Appellant.
Opinion
Appeal from an order of the City Court of Yonkers, Westchester County (Michael A. Martinelli, J.), entered September 12, 2013. The order denied tenant's motion to vacate a default final judgment and warrant, and to dismiss the petition, in a nonpayment summary proceeding.
ORDERED that the order is reversed, without costs, and tenant's motion to vacate the default final judgment and warrant, and to dismiss the petition is granted.
In this nonpayment proceeding, the record establishes that tenant receives a Section 8 subsidy and resides in housing that the petition describes as an “HUD federally subsidized Section 236 preservation project, a Mitchell Lama project and a low income housing tax credit project.” The petition seeks the sum of $1,645.04 for electricity charges, which the predicate notice alleged was due for July and August 2012, and which the petition claims is “additional rent.” Tenant appeals from an order of the City Court which denied her motion to vacate a default final judgment and warrant, and to dismiss the petition.
Since tenant receives a Section 8 subsidy, an agreement providing for the recovery of electricity charges from tenant as “additional rent” is unenforceable, as tenant's rent cannot exceed 30% of tenant's monthly adjusted income (see 42 USC § 1437a [a][1]; Matter of Binghamton Hous. Auth. v. Douglas, 217 A.D.2d 897 [1995] ; Fairview Hous., LLC v. Wilson, 38 Misc.3d 128[A], 2012 N.Y. Slip Op 52385[U] [App Term, 9th & 10th Jud Dists 2012] ; Related Tiffany, L.P. v. Faust, 191 Misc.2d 528 [App Term, 2d & 11th Jud Dists 2002] ). Inasmuch as the total of tenant's rent and the electricity charges would exceed 30% of tenant's income, the City Court lacked jurisdiction to entertain landlord's nonpayment summary proceeding (see e.g. Matter of Bedford Gardens Co. v. Silberstein, 269 A.D.2d 445 [2000] ; Saccheri v. Cathedral Props. Corp., 43 Misc.3d 20 [App Term, 9th & 10th Jud Dists 2014] ), and tenant's motion to vacate the default final judgment and warrant, and to dismiss the petition should have been granted. In view of the court's lack of jurisdiction, we do not reach the parties' remaining contentions with respect to the governing lease and provisions for payment of electric utility charges.
Accordingly, the order is reversed and tenant's motion to vacate the default final judgment and warrant, and to dismiss the petition is granted.
MARANO, P.J., IANNACCI and TOLBERT, JJ., concur.