Lambert Houses Redevelopment Co. v. Huff
| Decision Date | 10 April 2012 |
| Docket Number | No. 64956/11.,64956/11. |
| Citation | 951 N.Y.S.2d 86,35 Misc.3d 1215,2012 N.Y. Slip Op. 50709 |
| Parties | LAMBERT HOUSES REDEVELOPMENT COMPANY, Petitioner (Landlord), v. Gregory HUFF, Respondent (Tenant), “John Doe” and “Jane Doe”, Respondent (Occupants). |
| Court | New York Civil Court |
Petitioner Lambert Houses Redevelopment Company commenced this holdover proceeding against respondent-tenant Gregory Huff and respondent-occupants “John Doe” and “Jane Doe” in November 2011. The petition, which incorporates a notice to terminate dated October 11, 2011, alleges, among other things, that the subject apartment is not subject to Rent Control or Rent Stabilization because it is subject to the Section 8 regulations of the Department of Housing and Urban Development (“HUD”) governing the Substantial Rehabilitation program, and that Mr. Huff has violated a substantial obligation of his tenancy, constituting material noncompliance with his lease, by maintaining an alternative residence in another apartment, which is subsidized by the New York City Housing Authority, and by failing to recertify and timely supply information pertaining to his household income, household composition, and other eligibility requirements for the years 2010 and 2011 “in that [he has] failed to disclose that [he] maintain[s] another residence.”
In his answer, Mr. Huff, who is not represented by counsel, asserts a general denial and further alleges that he and his children live in the subject apartment.
The subject apartment is located in Lambert Houses East (“Lambert Houses”), a project-based Section 8 housing development.1 Before moving into that apartment in August 2010 Mr. Huff and his daughter, who was seven years old at the time, resided in an apartment located in a subsidized public housing project operated by the New York City Housing Authority (“NYCHA”). At the trial of this proceeding, petitioner's witnesses provided convincing evidence that through the date of trial, Mr. Huff had failed to surrender his tenancy at the NYCHA apartment and, in fact, had signed an “Occupant's Affidavit of Income” for that apartment on March 1, 2011; that he had continued to pay rent for the NYCHA apartment through June 2011; and that the lease he signed for his Lambert Houses apartment in July 2010 expressly states that that apartment must be his only place of residence. In addition, a Lambert Houses Occupancy Specialist testified that at the time Mr. Huff signed his lease she informed him that he could not have two apartments and that if he had another one, he had to move. Petitioner presented no evidence regarding the amount of time Mr. Huff spent in his Lambert Houses and NYCHA apartments or whether one or the other was his primary residence.
Mr. Huff did not deny that he had failed to surrender his tenancy at the NYCHA apartment. Rather, he testified that after his application for Lambert Houses was accepted he signed “stacks of paper” but never read them; that he was not aware from any of the documents he signed that he was not allowed to have two apartments; that no one at Lambert Houses ever told him that he was not allowed to have two apartments; that he is a single father with custody of his daughter and is in the process of adopting two more children; that he left his NYCHA apartment because it had only one bedroom (while his apartment at Lambert Houses has two); that all he has left in the NYCHA apartment is a bed; and that he was not given an opportunity to “correct the situation” before petitioner terminated his tenancy. In his closing argument, Mr. Huff admitted that it was wrong to have two subsidized apartments and asked for the chance to give up the NYCHA apartment.
With respect to Mr. Huff's alleged failure to recertify, petitioner offered into evidence a series of notices, which HUD requires owners to provide to tenants before they may be penalized for failing to comply with Lambert Houses' recertification requirements. One of petitioner's witnesses testified that an initial notice was provided to Mr. Huff on or about August 16, 2010. Another witness testified that a first reminder notice, dated April 1, 2011, was mailed to Mr. Huff on the following business day (which was April 4, 2011); that a second reminder notice, dated May 1, 2011, was mailed to him; and that a “Third Reminder Notice/Notice of Termination,” dated June 1, 2011, was mailed to him by certified mail, return receipt requested. The third notice, however, was unclaimed by Mr. Huff and was returned to petitioner. The envelope containing that notice, which petitioner also offered into evidence, is postmarked June 7, 2011. The envelope contained a copy of the June 1st reminder notice and copies of the first and second reminder notices as well.
Mr. Huff did not dispute petitioner's claim that he failed to recertify in 2011 and did not say whether or not he received the initial notice in August 2010. However, he denied receiving the first, second, and third reminder notices and, during his cross-examination of one of petitioner's witnesses, pointed out that each of those notices was addressed to him at apartment 330.3N, not 3N.2
Termination of tenancies in project-based Section 8 developments is governed by 24 CFR Part 247; 3 chapter 8, paragraphs 8–11 through 8–16, of HUD Handbook 4350.3 REV–1, entitled “Occupancy Requirements of Subsidized Multifamily Housing Programs (“HUD Handbook”); and the lease between the owner and tenant.
24 CFR § 247.3(a) provides that an owner may terminate a tenancy for (1) material noncompliance with the rental agreement; (2) material failure to carry out obligations under any state landlord and tenant act; (3) criminal activity or alcohol abuse by certain persons; and (4) other good cause. ( See HUD Handbook Figure 8–2). “Material noncompliance” includes, among other things, “[o]ne or more substantial violations of the rental agreement.” (24 CFR § 247.3[c][1] ).
Paragraph 23 of Mr. Huff's lease describes the circumstances under which petitioner may terminate his tenancy. It includes “material noncompliance with the terms of this Agreement” as one of the grounds for termination, and its definition of “material noncompliance” includes “one or more substantial violations of the Lease.”
At least one court has held that for buildings with project—based subsidies, an owner who seeks to evict a tenant for a substantial lease violation also must demonstrate that the violation “was a significant one-i.e., not a technical or a de minimis violation.” (Greene Ave. Assoc. v. Cardwell, 191 Misc.2d 775, 786 [Civ Ct, Kings County 2002], quoting Matter of Park W. Vil. v. Lewis, 62 N.Y.2d 431, 437 [1984] ). Although Park West Village involved a Rent Stabilized apartment, and the Court of Appeals' determination that a significant violation be shown was based on “the legislative recognition of the plight of residential tenants residing in New York City,” (62 N.Y.2d at 436), given Congress' similar concerns regarding “the acute shortage of decent and safe dwellings for low-income families” (42 USC § 1437[a][1][A] ), this court holds that to prevail in this proceeding petitioner must demonstrate that Mr. Huff's lease violation was a significant one.
Paragraph 13 of the Mr. Huff's lease provides that he “must live in the unit and the unit must be [his] only place of residence.” By failing to surrender possession of his NYCHA apartment Mr. Huff maintained another residence and therefore has violated that lease provision. The Court now must consider whether that violation was a significant one.
Guidance for determining whether Mr. Huff's lease violation is sufficient to merit termination of his tenancy is found in the HUD Handbook. In a section dealing with program eligibility,4 the Handbook provides that in order to be eligible for occupancy and housing assistance, “[t]he unit for which the family is applying must be the family's only residence.” (HUD Handbook, ch 3, ¶ 3–5[D] ).5 Given HUD's position that having only one residence is a key requirement for occupancy of a subsidized apartment, the Court finds that Mr. Huff's failure to surrender possession of his NYCHA apartment and his maintenance of a second residence there constitutes a significant violation of, and material noncompliance with, his lease.
It is unclear whether petitioner also seeks to terminate Mr. Huff's tenancy for failing to recertify at all or only to the extent that he failed to disclose his other residence.6 In either case, however, assuming that failure to recertify may be a ground for termination of tenancy in project-based Section 8 housing,7 under the circumstances of this case, it may not be a ground for terminating Mr. Huff's tenancy.
In order to impose penalties on a tenant for failing to recertify, an owner must provide him with a number of very specific notices by very specific deadlines. ( Cf. Diego Beekman M.H.A. v. Torres, NYLJ, Jan. 27, 2011, 1202479408447, at * 2 [Civ Ct, Bronx County][nonpayment proceeding involving termination of project-based Section 8 subsidy] ). The failure to comply with those notice requirements renders termination invalid. ( Cf. Starrett City, Inc. v. Brownlee, 22 Misc.3d 38 [App Term, 2d and 11th Jud Dists 2008][failure to comply with HUD Handbook notice requirements invalidates termination of Section 8 subsidy for failure to recertify]; Diego Beekman M.H.A. v. Torres, supra []; Clinton Towers Housing Co. v. Ryan, 26 Misc.3d 1229[A], 2010 N.Y. Slip Op 50305[U] [Civ Ct, New York County 2010][failure to comply with HUD Handbook notice requirements bars collection of market rent from tenant in project-based Section 236 apartment).Although the Court credits the testimony of ...
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