Opinion
SP0774/10.
Decided July 14, 2010.
Horing, Welikson Rosen, P.C., Attorneys for Petitioner, Williston Park, New York,; Nassau/Suffolk Law Services, Committee, Inc., Attorney for Respondent, Hempstead, New York.
Respondent moves for an order to determine whether the notices sent by the Petitioner to the Section 8 Tenant were defective and in violation of the HUD rules and regulations regarding recertification.
Petitioner is the landlord at the premises located at 100 Terrace Avenue, Hempstead, New York. The Respondent, Jacqueline Holly, has been a tenant at the premises in Apartment 631 for 27 years. Respondent's daughter, Letteira, has resided at the premises since 1983. Letteira's five children ages 9 years old through 10 months also live at the premises. As Section 8 tenants Jaqueline Holley as well as her daughter are required to recertify in order to verify the family income and composition allowing the landlord to determine their share of the Section 8 rent.
Petitioner provided first and second recertification notices on or about August 1, 2009 and September 1, 2009. Although Jaqueline responded to the second notice by submitting documentation and signing the several required papers in September 22, 2009, Letteira failed to respond at all. Petitioner then provided a Third Reminder Notice.
Respondent was then notified of a rent increase from $90 a month to $1556 a month in a document dated January 7, 2010 to become effective December 1, 2009. A second document dated January 11, 2010 stated that the rent was increased to $1441 a month to become effective December 1, 2009. Petition requests arrears from respondent in the total sum of $4457 for the month of December in the amount of $1325 and January in the amount of $2882.
Respondent's Motion to Dismiss is granted. Petitioner failed to comply with the U.S. Department of Housing and Urban Development (HUD) subsidized Section 8 project Handbook procedures of notification for recertification because the third notice failed to set forth the amount of rent Respondent would be obligated to pay for failure to properly recertify. This Court in Park Lane Residences, L.P. v. Boose, ( 26 Misc 3d 1233(A) [Nassau Dist Ct, 2010]) set forth the purposes of the HUD procedures concerning the Section 8 recertification process:
HUD procedures concerning the Section 8 project are set out in the HUD Handbook (handbook) and require a tenant to recertify on an annual basis by supplying information requested by the owner of the premises or by HUD. Recertification is necessary to ensure that a tenant is eligible for Section 8 assistance on a continuing basis, and to ensure that the tenant's rent will be commensurate with her ability to pay. As part of this process, the landlord is required to provide the tenant with written "Reminder Notices" concerning information for completing recertification.
Petitioner's reply admits to the failure of the third notice to set forth the exact amount of rent which the tenant would be required to pay upon failure to recertify (Petitioner's Reply Affirmation in Opposition ¶ 12). Despite this admission, petitioner maintains that this lack of compliance with the notification requirements does not constitute grounds for dismissal. In addition, Petitioner alleges that the two January notifications of the rent amount provided the tenant with satisfactory notice.
Petitioner provided the first and second reminder notices in observance with the HUD handbook procedures but failed to comply with all the requirements set out for the third reminder notice. The third reminder notice failed to inform the tenant of the increased amount in rent upon failure to recertify (Handbook § 7-7(B)(4)(b)[2]). The inclusion of this piece of information is not just a suggestion but instead is a requirement. "If the reminder notice requirements are not complied with, a nonpayment proceeding based upon a tenant's failure to timely recertify must be dismissed," (Lower East Side I Assoc. v. Estevez , 6 Misc 3d 632, 787 NYS2d 636 (Civil Ct. NY Co. 2004), see also Starrett City, Inc. v. Brownlee, 22 Misc 3d 38, 874 NYS2d 663 (App. Term, 2d and 11th Jud. Dists 2008); Park Lane Residences, L.P. v. Boose, 26 Misc 3d 1233(A), 2010 WL 838144 (N.Y.Dist.Ct.), 2010; Green Park Associates v. Inman, 121 Misc 2d 204, 467 NYS2d 500 [NY City, Civ. Ct. 1983]).
In Starrett City, the court affirmed the dismissal on the ground that the name and contact information of the person employed at the property to recertify tenant and the amount of rent that the tenant would be obligated to pay absent a recertification of income eligibility were missing from the first and third notices respectively ( Starrett City at 39). Petitioner's claim that the failure to include the amount of rent that Respondent would have to pay if no recertification was done does not qualify as grounds for dismissal was squarely rejected by Starrett City. In addition, it is unacceptable to notify a tenant of the amount of rent subsequent to the period which is being charged. The two January notifications of the amount of rent for December have no legitimacy and failed to provide Petitioner with standing to bring this nonpayment proceeding.
The Petitioner's failure to provide the requisite information warrants dismissal. Respondent's Motion to Dismiss is granted without prejudice.