Opinion
L T 22442/07.
Decided August 13, 2007.
Jason Fuhrman, Esq. Lazarus, Lazarus Winston, Bronx, NY, Attorney for Petitioner, New York, City Housing Authority Law Department.
Gina Strong, Bronx, NY, Respondent Pro Se.
The sole issue raised in this nonpayment proceeding is whether petitioner may recover from respondent the Section 8 portion of her rent where the New York City Housing Authority (NYCHA) has suspended subsidy payments for her rent stabilized apartment. This court holds that petitioner may not.
Facts
The salient facts were not disputed at trial. Respondent entered into a rent stabilized lease for the premises located at 2391 Hoffman Street, Apartment 9 ("Apartment") on August 1, 1993. (Resp. Exh. A.) That lease has been renewed by the parties, or deemed renewed, through March 31, 2008. (Pet. Exhs. 4 and 5; Resp. Exhs. A and B.) In the interim, respondent obtained a Section 8 voucher from NYCHA. Petitioner accepted this voucher and, on April 15, 2002, entered into a Housing Assistance Payments (HAP) agreement with NYCHA as the public housing authority (PHA) charged with administering this contract. Under that contract, NYCHA paid the bulk of respondent's rent stabilized rent while DSS paid the remaining tenant share directly to petitioner. Significantly, Part C, ¶ 5(d) of the HAP contract explicitly provides that "[t]he tenant is not responsible for paying the portion of the rent to [the] owner covered by the PHA housing assistance payment under the HAP contract between the owner and the PHA." (Resp. Exh. C.) Under the most recent contract, respondent's share of the rent was fixed at $139.24 per month with NYCHA responsible for the balance of $878.94 per month.
Following federally mandated inspections of the Apartment on November 19, 2004 and December 21, 2004, NYCHA determined that petitioner had failed to maintain the Apartment in accordance with federal Housing Quality Standards (HQS). (Resp. Exhs. D and E.) Consequently, effective July 1, 2005, NYCHA terminated subsidy payments to petitioner and issued a transfer voucher to respondent to enable her and her family to move to a safe and habitable apartment. In the meantime, respondent continued to pay the tenant share of the rent to petitioner in full each month. Petitioner then commenced this proceeding seeking the unpaid Section 8 share of the rent for the period of July 1, 2005 through March 2007, for a total alleged arrearage of $17,973.04.
Discussion
With limited exceptions inapplicable here, a landlord must renew a rent stabilized lease on the same terms and conditions as the expiring lease. (RSC § 2522.5[g][1].) Where a landlord has also agreed to accept a Section 8 subsidy, "a renewal lease must continue with that term and condition." ( Rosario v. Diagonal Realty, LLC, ___ NY3d___ [2007], 2007 NY Slip Op 05780, * 1.) As the Court of Appeals recently observed,
landlords who enter into leases with Section 8 recipients are mandated by HUD to include a tenancy addendum which, among other things, specifies that [t]he owner is leasing the contract unit to the tenant for occupancy by the tenant's family with assistance for a tenancy under the Section 8 housing choice voucher program' and that [t]he tenant is not responsible for paying the portion of the rent to [the] owner covered by the . . . housing assistance payment. . . .' By requiring such a tenancy addendum, the Rent Stabilization Code makes acceptance of Section 8 subsidies a term of every lease that a landlord signs with a Section 8 tenant. Consequently, the obligation to accept Section 8 subsidy payments must continue in a renewal lease, as required by Rent Stabilization Code ( 9 NYCRR § 2522.5 [g] [1]. ( Id. at *3.)
Thus, a "Section 8 tenant agrees in the Section 8 lease only to pay the tenant share of the rent. Absent a showing by [a] landlord of a new agreement . . . a Section 8 tenant does not become liable for the Section 8 share of the rent as rent' even after termination of the subsidy." ( Prospect Place HDFC v. Gaildon, 2005 NY Slip Op 50232[U] [App Term 1st Dept] quoting Rainbow Assocs. v. Culkin, 2003 NY Slip Op 50771[U] [App Term 2nd Dept]. See also Dawkins v. Ruff, 10 Misc 3d 88, 90 [App Term 2nd Dept 2005]; and Moshulu Assocs., LLC v. Cortes, NYLJ, April 5, 2006, at 21, col. 3 [Hous Part, Civ Ct, Bx Co, Danzinger, J.].)
Petitioner argues, without support, that he is nevertheless entitled to recover the unpaid Section 8 share of respondent's rent because she allegedly caused her subsidy to be terminated. Initially, the court notes that NYCHA terminated subsidy payments to petitioner because the Apartment failed inspection not due to any act or omission by respondent. ( See Resp. Exhs. D and E. See also 24 CFR § 982.404[a][2], permitting PHA to terminate, suspend or reduce housing assistance payments where an owner fails to maintain a dwelling unit in accordance with HQS.)
Petitioner however invites this court to consider evidence allegedly showing that respondent impeded petitioner's access to the Apartment which he maintains caused the lapses in HQS and NYCHA's ensuing termination of respondent's subsidy. The court declines petitioner's invitation as it is without jurisdiction to review the propriety of NYCHA's determination. ( Bravo Realty Corp. v. Lewis, NYLJ, March 24, 1999 at 26, col. 1 [App Term 1st Dept]; Fieldbridge Assocs. v. Champion, NYLJ, March 26, 1993, at 24, col. 5 [App Term 2d 11th Jud Dists]. cf. East Harlem Pilot Block Building 1 HDFC v. Cordero, holding that the Civil Court has jurisdiction to review the propriety of the suspension of a project based Section 8 subsidy.) Where a tenant breaches an obligation under the HAP contract and/or Section 8 regulations, such as by failing to provide access to the premises for correction of HQS violations as alleged here, a landlord's remedy is to commence a holdover proceeding for material noncompliance with those provisions. ( See e.g., 24 CFR § 982.310[a][2], permitting owner termination of a tenancy for violation of federal, state or local law that imposes obligations on the tenant in connection with the occupancy or use of the premises). A nonpayment proceeding to recover the Section 8 portion of the rent from the tenant does not lie. ( 24 CFR § 982.451[b][4][iii]; 24 CFR § 982.310[b][1]. See also McNeill v. New York City Housing Authority, 719 F. Supp. 233, 255 [SDNY 1989].)
Nevertheless, even were this court vested with jurisdiction to review NYCHA's determination, and were to then find that respondent caused her subsidy to be terminated, petitioner would still not be entitled to recover the Section 8 portion of respondent's rent. As noted, in Prospect Place HDFC v. Gaildon, the Appellate Term, First Department expressly rejected the notion that, in the absence of a new agreement, a Section 8 tenant is liable for the Section 8 share of the rent after termination of the subsidy, without limitation as to the cause of the termination.
Nor has petitioner produced a new agreement obligating respondent to pay any sum in excess of her tenant share of $139.24 which continues to be paid in full by the Department of Social Services. At best, petitioner produced a rent stabilized renewal lease dated March 14, 2006, which he claimed was deemed renewed for a two year term at a rate of $1018.18 per month. (Pet. Exh. 5.) Even if this lease were properly deemed renewed by petitioner, it could only be renewed on the same terms and conditions as the prior expiring leases. (RSC § 2522.5[g][1].) Under those expiring leases and this renewal lease, petitioner must continue to accept respondent's Section 8 benefits, if any, as well as remain bound by all program obligations, including the duty not to charge respondent any sum in excess of the tenant share of the rent as determined by NYCHA. ( See Rosario, *3. See also Part C of the HAP Contract (Resp. Exh. C) and 24 CFR 982.310[b], both explicitly providing that the tenant is "not responsible for payment of the portion of the rent to the owner covered by the housing assistance payment under the HAP contract between the owner and the PHA.")
As respondent's share of the rent has been paid in full for all periods relevant here, petitioner has no cause of action against respondent. Accordingly, the petition is dismissed with prejudice.
As to respondent's breach of warranty of habitability claim, petitioner is directed to correct all outstanding violations of record by September 14, 2007. Respondent is directed to provide petitioner's workers with access to the Apartment from August 20, 2007 through September 14, 2007, from 9:00 a.m. to 5:00 p.m. Petitioner's workers are directed to arrive by 11:00 a.m. on each work day, failing which access shall be deemed excused for the remainder of that day.
The parties and NYCHA are directed to retrieve their exhibits from the Part T Clerk by August 31, 2007. This constitutes the Decision and Order of this court, copies of which are being mailed to the parties and NYCHA today.