Lower E. Side II Ass'n v. Aaron
| Decision Date | 19 December 2017 |
| Docket Number | CV–002399–13/NY |
| Citation | 58 Misc.3d 1213 (A),93 N.Y.S.3d 626 (Table) |
| Parties | LOWER EAST SIDE II ASSOCIATION, Plaintiff, v. Susana AARON, Defendant. |
| Court | New York Civil Court |
Hotan Rohparvar, Esq., Gutman, Mintz, Baker & Sonnenfeldt, LLP, Attorneys for Plaintiff
Defendant Susana Aaron, pro se
Plaintiff/landlord Lower East Side II Association commenced this action to recover rent arrears of $13,081.81 from Defendant/tenant Susana Aaaron, appearing pro se , pursuant to a lease agreement for 374 East 10th Street, Apartment 4A, New York, New York (the "Apartment"); specifically $12,581.81 in rent arrears for July through December 2008, and $500.00 in attorneys' fees. Defendant counterclaims for $25,000.00, claiming "both front doors were broken for months without repair." At trial, Plaintiff's employee Susanna Dabbs and Defendant testified. Having had the opportunity to observe the witnesses and consider their testimony and the competent evidence, the Court dismisses the complaint and counterclaim.
On October 8, 2007, the parties entered into a subsidized lease agreement for the Apartment pursuant to section eight of the United States Housing Act of 1937 ( 42 USC §§ 1437 et seq.,Pl Exh 1 [the "Lease"] ).2 The lease term was October 8, 2007 through April 30, 2008, at a subsidized rate of $319.00 per month based on Defendant's income (Lease ¶¶ 2–3).3
In order to maintain a section 8 subsidy, tenants must recertify their income annually. As part of that procedure, Dabbs testified that three annual recertification notices were mailed to Defendant on January 1, February 1, and March 1, 2008 (Pl Exh 2 ). Each notice provided instructions for recertification, as well as the consequences for failing to comply: a rent increase (id. ; Tr 6:13–7:17).
Dabbs testified that Defendant failed to recertify—a contention "emphatically" disputed by Defendant—which led Plaintiff to charge an unsubsidized rent rate (Tr 7:18–19; 21:20–22:16; 26:21–25). Taking into account a zero balance as of May 1, 2008 (the beginning of the renewed Lease term), Dabbs' testimony and the rent ledger reflect that Plaintiff began to charge $2,164.00 per month in May of 2008 (Pl Exh 3 ).4 Defendant vacated the apartment several months later, on or about November 14, 2008 (Tr 10:16–11:15).5 The rent ledger evidences $4,504.00 in payments by Defendant from May to December of 2008, as well as a $207.00 security deposit credit and $5.19 in interest (Pl Exh 3 ).6
The central issue is whether Plaintiff was entitled to charge Defendant the market rate after April 30, 2008, and therefore entitled to recover the full amount sought.
The Lease's recertification requirements mirror the relevant HUD statutes and regulations and reflect the purpose of section eight: to provide "a decent home and a suitable living environment for every American family that lacks the financial means of providing such a home without governmental aid" ( Thorpe v. Hous. Auth. of City of Durham , 393 US 268, 281 [US 1969] ; see 24 CFR 5.657 ; 24 CFR 880.603, 884.218, 886.124, 886.324, 891.410, 891.610, and 891.750 ; 24 CFR 5.659 ; 24 CFR 5.233 ).
To further its regulatory scheme, HUD promulgates a handbook which sets forth procedures governing recertification that many courts have deemed binding: HUD Handbook 4350.3 REV–1 ().7
Included among the Handbook's procedures, with limited exceptions not present here,8 are recertification notices which must be provided to a tenant, including an initial notice "[u]pon initial signing of the lease," which "must do the following" (emphasis added):
(Handbook at Ch 7, § 1, ¶ 7–7[B][1] ).
The Handbook also requires three recertification notices 120 days, 90 days, and 60 days prior to the recertification anniversary date which must detail the recertification process and consequences of failure to recertify (id. at Ch 7, § 1, ¶ 7–7[B][2]–[4] ). As noted by the Handbook's explicit text, the notices are mandatory (see Lower E. Side I Assoc. LLC v. Estevez , 6 Misc 3d 632, 633 [Civ Ct NY County 2004] []; Impac Assoc. Redevelopment Co. v. Robinson , 9 Misc 3d 1065, 1067 [Civ Ct NY County 2005] [] ).
(emphasis added, blank spaces in original).
Even assuming that the lease itself could qualify as the initial notice, the spaces intended for the recertification deadline were left blank, which is insufficient to meet the Handbook's explicit requirement that the initial notice "specify the cutoff date." Similarly, the Court does not find that Plaintiff has demonstrated, by a preponderance of the credible evidence, that the three recertification notices were actually mailed to Defendant. Despite Dabbs' testimony that the notices were mailed, the Court finds that Dabbs lacked personal knowledge of the notices' mailing. The recertification notices are unaccompanied by any proof of mailing, and were written by a "Wendy Grayson," who did not testify. Additionally, the first notice misstated the market rent which would be charged if Defendant did not recertify: $3,127.00 versus $2,049.00 (Pl Exh 2 ).
Finally, even if the Court were to find that the Handbook was not...
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