Opinion
570641/19
11-02-2020
5TH AND 106TH STREET ASSOCIATES, L.P., Petitioner-Landlord-Respondent, v. Martha HUNT, Respondent-Tenant-Appellant, -and- "John Doe" and "Jane Doe," Respondents-Undertenants.
Martha Hunt, appellant pro se. Rose & Rose, New York City (Maureen Neff of counsel), for respondent.
Martha Hunt, appellant pro se.
Rose & Rose, New York City (Maureen Neff of counsel), for respondent.
PRESENT: Edmead, P.J., Higgitt, McShan, JJ.
Per Curiam. Appeal from order (Frances A. Ortiz, J.), entered September 11, 2019, deemed an appeal from the final judgment (same court and Judge), entered on the same date, and so considered (see CPLR 5520[c] ), final judgment affirmed, without costs.
Summary judgment of possession was properly awarded to landlord on its holdover petition. The evidentiary proof submitted by landlord conclusively established that tenant was in "material noncompliance" with Paragraph 38(3)(d) of her lease because she persistently refused to supply the "information on the composition, or eligibility factors" of her household, as required by the Project-Based Section 8 program (see DD 11th Ave., LLC v. Sans , 63 Misc. 3d 158[A], 2019 N.Y. Slip Op. 50838[U], 2019 WL 2351604 [App. Term, 1st Dept. 2019]; 501 W. 41st St. Assoc. v. Annunziata , 41 Misc. 3d 138[A], 2013 N.Y. Slip Op. 51922[U], 2013 WL 6122285 [App. Term, 1st Dept. 2013] ; 2 Macon St. Assoc., L.P. v. Sealy , 32 Misc. 3d 52, 929 N.Y.S.2d 353 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2011] ).
In opposition, tenant failed to raise any triable issues of fact. Tenant's contention that she is a rent-stabilized tenant and, therefore, cannot be evicted for noncompliance with income and household certification requirements was properly rejected by Civil Court.
Although Section 4(B)(1) of the landlord's Regulatory Agreement with New York City's Department of Housing Preservation and Development (HPD) required it to register each unit in the premises in accordance with the Rent Stabilization Code, Section 4(F) expressly provides that the U.S. Department of Housing and Urban Development (HUD) "has preempted the entire field of rent regulation ... as it affects the Project under 24 C.F.R. § 246.20 and that, for so long as the [Housing Assistance Payments] HAP Contract shall be in effect, the dwelling units covered by the HAP Contract shall be exempt from the Rent Stabilization Code [under RSC § 2520.11(t) ]" (emphasis added).
Where, as here, the property is subject to a mortgage insured or held by HUD and the landlord receives section 8 housing assistance for the apartment, the regulations provide that HUD has preempted "the entire field of rent regulation by local rent control boards" in order to "minimize defaults by the mortgagor" in its financial obligations with regard to its projects ( 24 CFR 246.21 ; see Matter of Mott v. New York State Div. of Hous. & Community Renewal , 211 A.D.2d 147, 152, 628 N.Y.S.2d 712 [1995], appeal dismissed 86 N.Y.2d 836, 634 N.Y.S.2d 444, 658 N.E.2d 222 [1995] ; accord 435 Cent. Park W. Tenant Assn. v. Park Front Apts., LLC , 164 A.D.3d 411, 412, 83 N.Y.S.3d 457 [2018] ["As long as the building was subject to the HUD mortgage, the Rent Stabilization Law of 1969 (RSL) (Administrative Code of City of NY § 26-501 et seq. ) was expressly preempted, pursuant to HUD regulations (see 24 CFR 246.21 )"]; Axelrod v. Various Tenants of Delano Vil. , 123 Misc. 2d 922, 924, 474 N.Y.S.2d 951 [Civ. Ct., N.Y. County 1984] ] [David B. Saxe, J.] [HUD federal preemption to subsidized insured housing project held to be "automatic and absolute"] ).
In short, although the Division of Housing and Community Renewal (DHCR) registration and filing requirements were binding on landlord, and were met here, federal regulations expressly preempted the Rent Stabilization Law. The building itself was not subject to the Rent Stabilization Law or rent stabilization coverage, notwithstanding any individual apartment filings with DHCR.
Similarly, the DHCR itself, in two postjudgment orders dated January 22, 2020, concerning tenant's complaints to that agency, effectively reached the same conclusion, expressly determining that "the subject building/apartment is not subject to [the] Rent Stabilization Code because the building is a project-based Section 8 housing subject to the regulations of HUD" (emphasis added). Accordingly, landlord was not required to plead and prove that tenant's apartment was subject to and in compliance with rent stabilization laws in the instant holdover proceeding.
Nor is "[s]uch an exemption [from rent stabilization coverage] ... subject to waiver or equitable estoppel" ( 546 W. 156th St. HDFC v. Smalls , 43 A.D.3d 7, 11, 839 N.Y.S.2d 62 [2007], quoting 512 E. 11th St. HDFC v. Grimmet , 181 A.D.2d 488, 489, 581 N.Y.S.2d 24 [1992], appeal dismissed 80 N.Y.2d 892, 587 N.Y.S.2d 907, 600 N.E.2d 634 [1992] ; see Matter of 322 W. 47th St. HDFC v. Loo , 153 A.D.3d 1143, 1144, 61 N.Y.S.3d 204 [2017], lv dismissed 30 N.Y.3d 1084, 69 N.Y.S.3d 851, 92 N.E.3d 1241 [2018] ; Gregory v. Colonial DPC Corp. III , 234 A.D.2d 419, 651 N.Y.S.2d 150 [1996] ).
We have considered tenant's remaining arguments and find them unpreserved and unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
EDMEAD, P.J., HIGGITT and MCSHAN, JJ., concur.