Opinion
L & T 086543/16
03-03-2017
FAC Renaissance HDFC, Petitioner, v. Carmen Vega, Respondent.
Petitioner's counsel: Sperber Denenberg & Kahn, PC, by Seth Denenberg, Esq. Respondent's counsel: Brooklyn Legal Services, by Brett A. Dolin
Petitioner's counsel: Sperber Denenberg & Kahn, PC, by Seth Denenberg, Esq. Respondent's counsel: Brooklyn Legal Services, by Brett A. Dolin John H. Stanley, J.
Papers Numbered Order To Show Cause and Affidavits Annexed 1-2 Notice of Cross-Motion and Affidavits Annexed Affidavits/Affirmation in Opposition 9 Reply Affidavits/Affirmation 3 Memorandum of Law Exhibits 4-8, 10 Affidavit/Affirmation/Acknowledgment of Service
Respondent moves to dismiss this summary holdover proceeding for several reasons. In particular, respondent seeks dismissal under CPLR 3211(a)(7) for failure to state of cause of action as required under RPAPL §741(4). Respondent alleges that petitioner failed to properly serve the Department of Housing Preservation and Development (HPD) as required by 24 CFR § 982.310(e)(2)(ii).
Petitioner seeks to regain possession of a federally subsidized Section 8 apartment administered by HPD. Section 8 is a federally funded government program that provides a rental subsidy to landlords who provide housing to low income individuals. Respondent argues that 24 CFR § 982.310(e)(2)(ii) requires petitioner to serve HPD with a notice prior to commencement of this holdover proceeding. This federal regulation applies to all Section 8 housing programs. In this instance, it is undisputed that petitioner is a recipient of a Section 8 subsidy pursuant to a Housing Assistance Payment contract between petitioner and HPD. Section 982.310(e)(2)(ii) of Title 24 states that "The owner must give the PHA a copy of any owner eviction notice to the tenant." [Emphasis added.] An owner eviction notice is defined as a notice to vacate, or a complaint or other initial pleading used under State or local law to commence an eviction action." This federal law mandates that petitioner must give notice to HPD as the PHA prior to commencement of this action. The court agrees with the reasoning set forth in Sam Burt Houses, Inc. v Smith, 56156/15, NYLJ 1202731567320, at *1 (Civ., KI, Decided June 17, 2015) and comes to the same conclusion for the same reasons. In addition, the Appellate Division of the First Department supports this Court's conclusion. In 433 West Assoc. v Murdock, 276 AD2d 360 (2000) the court mentioned as dicta that, in addition to the mandate required by The Williams Consent Decree, Williams v NYCHA, 81 Civ. 1801 (R.W.), the provisions of 24 CFR § 982.310(e)(2)(ii ) required notice to the PHA.
A PHA is the public housing agency administering the Section 8 subsidy. See 24 CFR § 982.4 In this instance, the PHA is HPD.
Unlike this case, the Section 8 provider in Murdock was NYCHA; the Williams Consent Decree only apples to NYCHA administered Section 8.
Accordingly, respondent's motion to dismiss the proceeding is granted. The proceeding is dismissed without prejudice. The Court need not address the other grounds for dismissal.
This constitutes the decision and order of the court. Dated: March 3, 2017 Brooklyn, NY Hon. John H. Stanley Judge, Housing Court