Opinion
2004-1486 W C.
Decided September 23, 2005.
Appeal from an order of the City Court of Yonkers, Westchester County (Richard B. Liebowitz, J.), entered on September 15, 2004. The order denied a motion by tenant to dismiss the petition and to compel landlord to accept Section 8 housing assistance payments on behalf of tenant.
Order unanimously modified by providing that tenant's motion is granted to the extent of dismissing the petition; as so modified, affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
Under the terms of tenant's 1983 Section 8 assisted housing lease, landlord's predecessor agreed to enter into a Section 8 housing assistance payments contract with the local Section 8 administrator and to accept that agency's payments of the Section 8 share of the rent, and tenant agreed to pay only the tenant share of the rent. Inasmuch as landlord's predecessor and landlord, after its purchase of the building, continued to renew tenant's leases annually on the same terms and conditions as the expiring leases, these terms continued into the renewal leases (Emergency Tenant Protection Regulations [ 9 NYCRR] § 2502.5 [c] [7]; see Century Operating Corp. v. Popolizio, 60 NY2d 483, 488). Thus, even assuming, as landlord contends, that the 1996 amendment (Pub L 104-134, § 203 [c] [2], 110 US Stat 1321, 1321-281 [1996] [temporarily removing, inter alia, the Section 8 "endless lease" renewal requirement]) and 1998 amendment (Pub L 105-276, § 549 [a] [2] [A], 112 US Stat 2461, 2607 [1998] [making the 1996 amendment permanent]) to the United States Housing Act of 1937 ( 42 USC § 1437 et seq.) permit a rent-regulated landlord to end its participation in the Section 8 program at the end of the term of a tenant's lease ( see e.g. Kulick Rheingold Realty v. Montero, 8 Misc 3d 1007[A], 2005 NY Slip Op 50974[U] [Civ Ct, NY County]; Seminara Pelham v. Formisano, 5 Misc 3d 605 [New Rochelle City Ct 2004]; but see e.g. Rosario v. Diagonal Realty, ___ Misc 3d ___, 2005 NY Slip Op 25267 [Sup Ct, NY County 2005]; Bran Trav Dev. v. Matus, NYLJ, Aug. 11, 2004 [Civ Ct, Kings County]), landlord here, by renewing the lease on the same terms and conditions, failed to exercise the option of doing so ( see Matter of East 56th Plaza v. New York City Conciliation Appeals Bd., 56 NY2d 544). In this posture, we need not determine whether the amendments to the federal statute have the effect which landlord claims that they have. Accordingly, since, under the lease as renewed, tenant did not agree to pay the Section 8 portion of the rent, this nonpayment proceeding does not lie ( see e.g. Prospect Place HDFC v. Gaildon, 6 Misc 3d 135[A], 2005 NY Slip Op 50232[U] [App Term, 1st Dept] [a Section 8 tenant agrees to pay only the non-Section 8 share of the rent, and, absent a new agreement between the parties, a nonpayment proceeding will not lie to recover the Section 8 portion of the rent even after the subsidy has terminated]; Rainbow Assoc. v. Culkin, 2003 NY Slip Op 50771[U] [App Term, 2d 11th Jud Dists] [same]; Schickler v. Thorpe, NYLJ, Feb. 27, 2002, 2002 NY Slip Op 40106[U] [App Term, 9th 10th Jud Dists] [same]; Parkmore Props. v. Prasad, NYLJ, Oct. 19, 1999 [App Term, 9th 10th Jud Dists] [same]; Livecchi v. Pyatt, 2003 NY Slip Op 50925 [Rochester City Ct] [the Section 8 statute is read into the lease by operation of law, and thus a tenant agrees to pay only the non-Section 8 share of the rent]; Curtis v. Surette, 49 Mass App 99 [in a nonpayment proceeding, a landlord cannot recover the Section 8 portion of the rent from the tenant, even after the subsidy has terminated]). Under the circumstances, the branch of tenant's motion seeking to dismiss the petition is granted.
The equitable and injunctive relief sought by tenant of compelling landlord to accept Section 8 payments is not available in a summary proceeding brought in the City Court (UCCA 209 [b]; see North Waterside Redevelopment Co. v. Febbraro, 256 AD2d 261; Topaz Realty v. Morales, ___ Misc 3d ___, 2005 NY Slip Op 25299 [App Term, 2d 11th Jud Dists]; Goodson-Todman Assoc. v. Savage Tanning Co., NYLJ, Apr. 29, 1998 [App Term, 9th 10th Jud Dists]; Plumaj v. Ferry, NYLJ, Mar. 5, 1996 [App Term, 9th 10th Jud Dists]; Harte v. Cornacchia, NYLJ, Nov. 8, 1994 [App Term, 9th 10th Jud Dists]). Accordingly, and without passing on the merits of the application, the branch of tenant's motion seeking such relief must be denied on jurisdictional grounds.