Opinion
No. 2023-50808 Index No. LT-2980-22
08-02-2023
Yonkers Reit Acquisition LLC (Apex Hudson Riverfront), Petitioner, v. Antonio Martinez, John Doe and Jane Doe, Respondent.
Logan R. D. Stagnitto, Esq. Griffin Alexander, PC Jason Mays, Esq. Hudson Valley Justice Center
Unpublished Opinion
Logan R. D. Stagnitto, Esq. Griffin Alexander, PC
Jason Mays, Esq. Hudson Valley Justice Center
Ada D. Medina, J.
The following papers numbered 1-4 were read and considered on respondent's motion to dismiss (CPLR § 3211[a][7]), for summary judgment (CPLR § 3212), or for partial summary judgment (CPLR § 3212).
Papers Numbered
Notice of Motion and Affidavits Annexed 1
Affirmation/Affidavits in Opposition 2
Replying Affirmations / Affidavits 3
Notice of Petition and Petition 4
Background
On November 9, 2022 petitioner filed a Notice of Petition and Petition against respondent based on a non-payment matter. On June 20, 2023 respondent filed the instant motion seeking a determination by this Court (1) that the Yonkers Affordable Housing Ordinance (hereinafter "AHO") (Yonkers City Code Part V, Art. XV, § 43-190 et seq.) requires interim re-certifications; (2) ordering petitioner to re-calculate respondent's income pursuant to said ordinance; and/or (3) ordering dismissal of the action based on petitioner's failure to state a cause of action absent compliance with the ordinance. On June 27, 2023 petitioner submitted opposition and respondent replied on July 5, 2023.
Summary Judgment
At the outset," [a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that the cause of action or defense has no merit." (CPLR § 3212[b]). Here, respondent has failed to submit the required documentation as no affidavit and/or copy of the pleadings are included with the motion.
As such, respondent's motion for summary judgment or partial summary judgment is hereby denied.
Motion to Dismiss
On a motion to dismiss pursuant to CPLR § 3211," the pleading is to be afforded a liberal construction (see, CPLR 3026) [and this Court must]...accept the facts as alleged in the [petition] as true, accord [petitioner] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v. Martinez, 84 N.Y.2d 83, 87-88 [1994]). More specifically, "[i]n assessing a motion under CPLR 3211(a)(7) the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." (Id.).
Here, the Notice of Petition and Petition alleges respondent owes $2,485.44 for non-payment of rent. Respondent claims the petition fails to state a cause of action because petitioner has not met its obligations under the AHO to determine the amount of rent owed. Based on the following analysis, this Court finds the AHO does not require interim recertifications. As such, petitioner has not failed to comply with the AHO in determining respondent's rent. Petitioner has stated a valid cause of action in the Notice of Petition and Petition for alleged non-payment of rent.
Yonkers Affordable Housing Ordinance ("AHO")
In 2013 the City of Yonkers adopted the AHO to provide for a variety of affordable housing units. A household must earn between 30% and 100% of the Westchester County area median income to qualify. (Yonkers City Code Part V, Art. XV, § 43-191[B]). The AHO states an affordable housing unit shall be" [r]ented at a monthly rent (including an allowance for utilities) not exceeding at any time 30% of the annualized monthly gross income of the household occupying the affordable housing unit." (emphasis added; Yonkers City Code Part V, Art. XV, § 43-198[B]). Respondent interprets" at any time" to mean his monthly rent cannot exceed 30% of his income for each and every month of his lease term rather than an annual determination.
Respondent's motion rests on whether the AHO requires landlords to conduct recertifications when a tenant has a change in circumstance (i.e. interim recertifications). Respondent argues the AHO requires interim recertifications when certain events take place (e.g. loss of a job, change in income, change of family size) during a lease term and prior to the lease renewal date. Petitioner argues a landlord is not required to recertify a tenant upon a change in circumstance, rather, only an annual recertification is required.
Petitioner relies on the clear and unambiguous language of the AHO. This Court has thoroughly reviewed same and the plain reading of the AHO does not reference interim recertifications. The AHO does not explicitly state a landlord is required to conduct interim recertifications when a tenant has a change in circumstance during the lease term. In an effort to interpret the Yonkers AHO, this Court has turned to similar AHO's in Westchester County for further guidance.
The City of White Plains Affordable Rental Housing Regulations state specific procedures for recertification and rent adjustments. "Recertification of eligibility will occur every two years [and] [r]ents will be adjusted annually for the new lease term, based on the HUD rent limits and utility allowances established for Westchester County. (White Plains Municipal Code Title IX, Chpt. 9 § 9-7-5[C]-[D]). Additionally, the Peekskill City Code states "[r]ecertification of eligibility for Affordable Housing and Workforce Housing Units shall occur every two years.[and] [r]ents will be adjusted annually." (Peekskill City Code Chpt. 155 § 155-8[A]; City of Peekskill Policies and Procedures § 12[1]-[2]). Upon review of these cities' AHOs, this Court notes neither White Plains nor Peekskill provide for interim recertifications.
This Court does not find the plain reading of the AHO to require a landlord to conduct interim recertifications. However, this Court does not discourage a landlord to provide for interim recertifications should a landlord chose to do so. Requiring landlords to conduct interim recertifications could lead to an unlimited and unjustified amount of recertifications during a lease period. However, if a landlord choses to recertify a tenant upon a change in circumstance, it may benefit both the landlord and tenant.
This Court is without sufficient and/or supporting documentation to interpret the AHO in a different manner. Petitioner and respondent concede they entered into a lease agreement. Petitioner also references an Affordable Housing Agreement entered into between petitioner and the City of Yonkers. However, neither party submits the referenced agreements with the instant motion and/or opposition. Although petitioner states the Affordable Housing Agreement" does not describe the limitations on what tenants must pay and how often the Landlord must recertify" (Petitioner's Opposition, pg. 7) this Court cannot determine, on the lack of supporting documentation before it, whether these documents are necessary in the outcome of this matter.
Furthermore, this Court is without sufficient information regarding the Affordable Housing Trust Fund Committee (hereinafter "AHTF Committee"). "The AHTF Committee and designated City staff shall be permitted to review and monitor a developer's ongoing compliance with the provisions of this article [and it is the AHTF Committee which is] responsible for establishing rules, regulations and procedures necessary for the implementation and administration of the AHTF" (Yonkers City Code Part V, Art. XV, §§ 43-200, 202). Respondent has not submitted information on what policies and/or procedures, if any, are in place for the AHTF Committee to ensure a landlord's compliance with the AHO. Additionally, "[t]he developer shall be responsible for prescreening, qualifying and selecting applicants who wish to occupy (as tenants or purchasers) affordable housing units. The developer may contract with a qualified housing services provider to assist in outreach, screening and certifications." (Id.). Respondent has not alleged what steps, if any, he took to challenge his lack of interim recertification with the developer, these agencies, and/or organizations.
Moreover, respondent argues the AHO is analogous to the Housing and Urban Development (hereinafter "HUD") regulations, guidelines, and procedures. (U.S. Department of Housing and Urban Development, HUD Handbook, 4350.3, November 2013). Respondent states" any landlord opting into certain financial incentive programs with Housing and Urban Development allows interim recertifications when tenants lose income between yearly lease renewals." (Respondent's Motion, pg. 8, para. 29). However, respondent has not supported this argument with any documentation or legal authority for this Court to determine the AHO is subject to HUD regulations.
The AHO references HUD, only to the extent of, determining an individual's eligibility for affordable housing when compared to the area median income (hereinafter "AMI"). AMI is "[t]he most recently updated annual median household income figures, adjusted for family size, calculated and published by the U.S. Department of Housing and Urban Development (HUD) for Westchester County, New York State." (Yonkers City Code Part V, Art. XV, § 43-192). Respondent has not convinced this Court that HUD regulations apply to the AHO, other than, considering AMI. Respondent does not allege he receives any program benefits from the AHO (e.g. a rental subsidy) aside from a reduced monthly rental amount.
This Court is persuaded by petitioner's argument that generally a lease between a landlord and tenant may not be altered during the term of the contract, absent specific language in the contract, or for which there must be new consideration to support the alteration. (Schwartzreich v. Bauman-Basch, Inc. 231 NY 196, 203 [1921]). Based on this basic principal of contract law, respondent has failed to show there is specific language in the contract, or new consideration, to govern an interim recertification requirement. Respondent merely alleges "[p]etitioner could easily cut provisions from the rules governing those tenancies [HUD] and paste them into its lease." (Respondent's Motion, pg. 10, para. 29). This Court considers respondent's statement as a concession that no such interim recertification language is stated in the terms of his lease. Additionally, if petitioner could have "easily" included these terms in the lease and failed to do so, this Court can only determine this was an intentional omission.
Conclusion
Respondent's motion for summary judgment or partial summary judgment is hereby DENIED for failure to submit the required documentation as no affidavit and/or copy of the pleadings are included with the motion.
Respondent's motion to dismiss for failure to state a cause of action is also DENIED. Petitioner has stated a valid cause of action in the Notice of Petition and Petition for alleged non-payment of rent. This Court declines to find the plain reading of the AHO to require landlords to conduct interim recertifications. As such, petitioner has not failed to comply with the AHO in determining respondent's rent. This Court does not have jurisdiction to order petitioner to recertify respondent's income and rent, however, to the extent petitioner agrees to conduct a recertification this Court does not discourage the parties to do so. Furthermore, to the extent respondent seeks to raise the AHO as an affirmative defense at trial, this Court may consider respondent's arguments.
Respondent's motion is hereby DENIED. The Clerk of the Civil Court is directed to schedule this matter for trial and notify all parties. Appearances are required.