Florentino v. Nokit Realty Corp.

• Decision Date: 27 May 2010
• Citation: 906 N.Y.S.2d 689,29 Misc.3d 190
• Parties: Severina FLORENTINO and Maria Cabrera, Plaintiffs, v. NOKIT REALTY CORPORATION, Orwell Management and Spode Realty LLC, Defendants.
• Court: New York Supreme Court

906 N.Y.S.2d 689
29 Misc.3d 190

Severina FLORENTINO and Maria Cabrera, Plaintiffs,
v.
NOKIT REALTY CORPORATION, Orwell Management and Spode Realty LLC, Defendants.

Supreme Court, New York County, New York.

May 27, 2010.

906 N.Y.S.2d 690

Venable LLP, New York City, Attorney for Plaintiff.

Gale Feldman, Esq., New York City, Attorney for Defendant.

PAUL WOOTEN, J.

29 Misc.3d 191

This is an action by plaintiff Severina Florentino ("plaintiff") for an injunction ordering her landlord to accept a Section 8 rent subsidy voucher for her current two-bedroom rental apartment. Defendants Nokit Realty Corporation and Orwell Management (collectively "defendants") are, respectively, the building's owner and property manager.¹ Plaintiff alleges that

906 N.Y.S.2d 691

defendants' refusal to accept her Section 8 benefits violates sections 8-107(5)(a)(1), 8-107(5)(a)(2) and 8-107(5)(c)(1) of the Administrative Code of the City of New York ("Administrative Code" or "Local Law 10"), which prohibits landlords from discriminating against tenants based on their lawful source of income. Defendants have filed a third-party complaint against New York City Housing Authority ("NYCHA"), and NYCHA has not yet answered. The Note of Issue has not been filed.

Presently before the Court are three motions, which will be construed as cross-motions. First, plaintiff moves for summary judgment, pursuant to CPLR 3212, declaring that defendants violated Local Law 10 and ordering them to accept her Section 8 voucher for her current apartment, and awarding compensatory damages from the month in which the voucher was issued through the month of its acceptance by defendants. Second, defendants move for summary judgment, pursuant to CPLR 3212, dismissing the complaint for failure to establish a Local Law 10 violation, or, alternatively, directing plaintiff to accept a studio apartment instead of the two-bedroom, or directing NYCHA to (1) amend the Section 8 voucher and Housing Assistance Payment Contract ("HAP") to accurately reflect the size of plaintiff's current apartment; (2) hold defendants harmless from liability for any misrepresentations they certify as accurate in executing the Section 8 voucher and HAP; or (3) withdraw the Section 8 voucher and HAP. Third, NYCHA moves to dismiss the third-party complaint, pursuant to 3211, for failure to state a cause of action.

29 Misc.3d 192

BACKGROUND

In support of her motion, plaintiff submits, inter alia, her own affidavit, the Section 8 voucher, and the HAP. Defendants submit, inter alia, affidavits of Simon Haberman and Marco Pichardo, and letters between Legal Aid and defendants' counsel. NYCHA submits, inter alia, the affidavit of Gregory A. Kern, and a NYCHA policy memorandum. The relevant undisputed facts are as follows.

Plaintiff is a sixty year-old single woman who resides in a two-bedroom rent-stabilized apartment at 601 West 174th Street No. 5H. She has lived in the apartment for over 15 years, and last renewed her lease on January 2, 2009. The building contains at least six residential units. Plaintiff's current monthly rent is $989.38, but she receives a Disability Rent Increase Exemption lowering her rent to $843.25. Her only source of monthly income is $781.00 in Social Security Income and Social Security Disability benefits.

According to plaintiff's affidavit, she currently resides alone and does not rent out her second bedroom. Members of her immediate family have resided with her in the past, but they have not lived in her apartment for several years. She has also occasionally had visiting family members stay with her briefly as guests. She denies subletting her apartment or receiving rental income from anyone staying there.

In March 2008, plaintiff applied for Section 8 assistance with the United States Department of Housing and Urban Development ("HUD") to help meet her monthly rent obligations. On July 8, 2008, she received a Section 8 voucher, administered by NYCHA, for a rent subsidy in the amount of $1,095.00. The face of the voucher indicated that her rent subsidy corresponded to a unit containing zero bedrooms.

On December 15, 2008, Simon Haberman, one of defendants' principals, received

906 N.Y.S.2d 692

a letter from Legal Aid regarding plaintiff's Section 8 eligibility. Defendants advised Legal Aid that plaintiff's Section 8 voucher authorized benefits for a studio apartment only, and that her current apartment was ineligible for the benefits provided by the voucher as it was a two-bedroom.

Plaintiff commenced the present action on March 5, 2009, alleging that defendants improperly refused to apply her Section 8 voucher to her current two-bedroom apartment, in violation of Local Law 10. She seeks an injunction ordering defendants to

29 Misc.3d 193

accept the voucher and to execute all necessary related documentation within 10 days, as well as an award of compensatory damages.

Defendants deny discriminating against plaintiff and have offered her a studio apartment in the same building, which they claim complies with the Section 8 voucher. Defendants also allege that the Section 8 voucher and HAP require them to certify certain items regarding plaintiff's apartment, including the number of bedrooms and the identity of the occupants. They claim that they cannot truthfully certify the apartment's size because it contains two bedrooms, not zero bedrooms. They also claim that the voucher requires occupancy solely by plaintiff and her immediate family, and they submit an affidavit from the building's superintendent, Marco Pichardo, stating that he observed unrelated roommates living there. Defendants additionally claim that the HAP provides for liability and monetary penalties in the event of an owner's breach of the contract, and that they cannot knowingly certify a voucher and HAP containing material misrepresentations.

Defendants brought a third-party complaint against NYCHA on November 13, 2009, alleging that the Section 8 voucher and HAP require them to misrepresent the number of bedrooms in plaintiff's apartment and to conceal rental income she receives from roommates, and to thereby perpetuate a fraud upon NYCHA and HUD and expose themselves to possible penalties. They seek an injunction ordering NYCHA to either withdraw the voucher on grounds of alleged fraud regarding room size and number of occupants, or directing plaintiff to accept the studio apartment.

NYCHA has submitted an affidavit from Gregory A. Kern, a NYCHA manager responsible for the Section 8 program, disputing defendant's claims regarding the alleged certification requirements. According to Kern, NYCHA policy and federal regulations allow plaintiff to use her Section 8 voucher for a two-bedroom apartment with a rent of either $989.38 or $843.25. Kern also notes that the HAP does not require defendants to certify the size of plaintiff's apartment or anything concerning her income. Although the HAP forbids plaintiff from permitting anyone else to live in the apartment without prior approval of NYCHA and the landlord, if defendants suspect that plaintiff is subletting the apartment or hiding income, they can report such concerns directly to NYCHA which will investigate and make a determination concerning plaintiff's continued eligibility for Section 8 assistance.

29 Misc.3d 194

DISCUSSION

Plaintiff moves for summary judgment declaring that defendants violated Local Law 10 by refusing to accept her Section 8 voucher, and ordering defendants to accept her voucher for her current two-bedroom apartment. She also requests an award of compensatory damages, representing the difference between her monthly rental obligations and what she would have paid from the month in which the voucher was issued through the month of its acceptance by defendants.

906 N.Y.S.2d 693

Defendants, in turn, seek summary judgment dismissing the complaint for failure to establish a Local Law 10 violation. Defendants claim that they refused to honor the voucher because it required them to falsely and fraudulently certify that plaintiff occupies a studio apartment, and to conceal income that she purportedly receives from subletting. They also allege that they are exposed to potential liability and penalties for any misrepresentations in the voucher and HAP. In the alternative, defendants request an order directing plaintiff to accept the studio apartment, or ordering NYCHA to (1) amend the voucher and HAP to reflect a two-bedroom; (2) hold defendants harmless from liability for any misrepresentations they certify as accurate in executing the voucher and HAP; or (3) withdraw the voucher and HAP.

NYCHA moves to dismiss the third-party complaint for failure to state a cause of action, on the grounds that defendants failed to serve or plead service of a statutorily-required notice of claim prior to commencing the third-party action, and, in any event, that defendants' claim that plaintiff cannot use her Section 8 voucher for her two-bedroom apartment lacks merit.

A. Standards Of...