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Pinecrest Associates v. Smith

Appellate Term of the Supreme Court of New York, Second Department
May 29, 2003
196 Misc. 2d 494 (N.Y. App. Term 2003)

Opinion

23645

May 29, 2003.

Appeal by tenant from a final judgment of the Justice Court, Town of Mount Kisco, Westchester County (H. Kensing, J.), entered November 26, 2001, awarding landlord possession and arrears.

Hudson Valley Law Center, White Plains (Robert Eisneros of counsel), for appellant.

Shamberg, Marwell, Hockerman, Davis Hollis, P.C., Mount Kisco (Richard J. King and Joseph N. Madden of counsel), for respondent.

PRESENT: LIFSON, J.P., RUDOLPH and SKELOS, JJ.


MEMEORANDUM.

Final judgment unanimously affirmed without costs.

We agree with the Justice Court's conclusion that the occupancy restriction in tenant's Section 8 (new construction) lease was mandated by the Department of Housing and Urban Development pursuant to 24 C.F.R. § 880.606(b)(1), which requires that such leases conform to the model lease in landlord's approved final proposal, and thus that the restriction was not rendered unenforceable by Real Property Law § 235-f (2) see Real Property Law § 235-f; cf. Cuevas v Beacon Hous. Auth., 220 A.D.2d 179). Although on appeal tenant contends that landlord failed to introduce the approved final proposal into evidence, tenant failed to raise this objection in the Justice Court and thus waived the objection ( First Intl. Bank of Israel, Ltd. v L. Blankstein Son, 59 N.Y.2d 436). In any event, inclusion of this lease provision in the model lease in landlord's approved final proposal was mandatory (HUD Handbook on Occupancy Requirements of Subsidized Multifamily Housing Programs § 4-2 [b]; HUD Directive 4350.3). Inasmuch as the proof established that tenant violated the occupancy restriction in the lease and inasmuch as this lease restriction was mandatory under the Federal scheme and thus not within the exception provided in Real Property Law § 235-f (8), a final judgment was properly awarded to landlord.


Summaries of

Pinecrest Associates v. Smith

Appellate Term of the Supreme Court of New York, Second Department
May 29, 2003
196 Misc. 2d 494 (N.Y. App. Term 2003)
Case details for

Pinecrest Associates v. Smith

Case Details

Full title:PINECREST ASSOCIATES, Respondent, v. KAREN SMITH, Appellant

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: May 29, 2003

Citations

196 Misc. 2d 494 (N.Y. App. Term 2003)
762 N.Y.S.2d 758