Morrisania II Associates v. Harvey

• Decision Date: 29 March 1988
• Parties: MORRISANIA II ASSOCIATES, Petitioner, v. Georgette HARVEY, Respondent.
• Court: New York City Court

Page 954

527 N.Y.S.2d 954

139 Misc.2d 651

MORRISANIA II ASSOCIATES, Petitioner, v. Georgette HARVEY, Respondent.

Civil Court of the City of New York,

Bronx County, Special Term,

Part I.

March 29, 1988.

Finkelstein, Borah, Schwartz, Altschuler & Goldstein, P.C. by William J. Neville and Cesar G. Cardona, New York City, for petitioner.

Legal Aid Soc. by Richard Krulik, Bronx, for respondent.

MICHAEL D. STALLMAN, Judge:

This respondent tenant's motion for summary judgment in a licensee holdover proceeding raises issues of first impression. Does the federal Section 8 housing assistance law (42 U.S.C. § 1437f) pre-empt or supersede New York landlord-tenant law? Do relatives of Section 8 tenants have succession rights regardless of New York law? Are a deceased tenant's sworn statements to the landlord binding on, or admissible against, her child and grandchildren?

CONTENTIONS OF THE PARTIES

It is agreed that in August, 1973 Georgia Harvey, respondent's mother, leased the subject one bedroom apartment pursuant to a Section 8 tenancy. She resided there until three weeks before her death in May, 1986. Virtually all else is in dispute. Respondent alleges that she and two children moved into the apartment in 1979, after separating from her husband. She claims that she has continuously resided there, except for several months in 1984. She asserts that she and her three children have been continuously and exclusively dependent on public assistance. Respondent's mother, a Social Security disability recipient, was diagnosed in 1979 as having cancer. Respondent alleges that she continuously cared for her mother in the apartment, by cooking, cleaning, administering medication and otherwise attending to her mother's personal needs.

Affidavits of respondent's sister, and of several neighbors, support respondent's contentions. School records indicate that the children have attended the local public school since 1980. Nevertheless, income recertification forms apparently signed and filed by respondent's mother from 1980 through 1985 list her as the sole occupant of the apartment and state that her social security payments were the only source of household income.

Petitioner contends that respondent is either a squatter, or a former licensee whose license terminated upon the death of the tenant. RPAPL Sec. 713(3), (7). Respondent alleges entitlement to possession as the legal successor to her mother's Section 8 tenancy. She moves for summary judgment on her Third and Fourth Defenses, claiming Section 8 status as either a "remaining member of a tenant family" or a person "essential" to the "care or well being" of a Section 8 lessee. 42 U.S.C.A. Section 1437a(b)(3), which superseded § 1437a [former (2).]

THE FEDERAL STATUTE

Congress adopted the Section 8 housing program to provide decent and safe housing through the private sector to certain "lower income" families, the elderly and the disabled. Housing and Community Development Act of 1974, P.L. 93-383, (42 U.S.C.A. Section 1437f); Legislative History, 1974 U.S. Code Cong. and Admin. News, 4273, 4314-4317; Kohl v. Housing Authority of the City of Bloomington, Illinois, 537 F.Supp. 1207. The statute authorizes the Department of Housing and Urban Development (HUD) or local public housing authorities to contract with private landlords. In exchange for a guaranteed subsidized market rental level, landlords provide apartments to approved families. The family rents the apartment directly from the landlord and pays a fraction of the rent commensurate with family income "... from all sources of each member of the household ...". 42 U.S.C.A. Sec. 1437f(f) [former (3) ]. The balance is paid by the government. Recertification of income and family composition takes place at least annually, and is based on the tenant's filing of sworn answers to a questionnaire. 42 U.S.C.A. Sec. 1437f(c)(3); 24 C.F.R. 881.603(c)(2). Failure to timely submit this information is deemed a substantial breach of the tenancy. 24 C.F.R. 880.607(b)(3)(ii).

The Section 8 program is thus quite different from traditional housing programs The Section 8 program recognizes the entire family as the tenant, entitled to occupancy and assistance. It thereby encourages family cohesion and the care of the elderly and disabled in the home. See 42 U.S.C.A. Sec. 1437a(2)(D); 1437e; 24 C.F.R. 812. The statute construes "family" broadly to include inter alia, a "remaining member of a tenant family" and an elderly or disabled single person. 42 U.S.C.A. Sec. 1437a(b)(3).

                under which government itself finances the construction of housing units, and directly or indirectly manages them.   Cf. Thompson v. Washington, 497 F.2d 626.   An ongoing public subsidy of an essentially private landlord-tenant relationship, Section 8 sought to afford poor families greater choice, independence and dignity than that available from customary public housing.  The family receives its benefit conditioned on maintaining statutory eligibility requirements and complying with the obligations of tenancy.  The private owner receives the benefit of a government subsidy and a guaranteed return by complying with the mandates of the statute and its implementing regulations.  See Legislative History, 1974 U.S. Code Cong. & Admin. News, 4314
                

The term "remaining member of a tenant family" (42 U.S.C. § 1437a[b][3][C] ) is not otherwise defined by statute or regulation. ¹ Since it is not ambiguous, it should be defined according to the ordinary and natural meaning of its own words, as a person who had actually been in occupancy as a part of the family unit at the time of the named tenant's death. Its use recognizes an underlying statutory assumption: all family members have occupancy rights which are not terminated by the death of any member. In contrast, one who assumed occupancy just before the tenant's death, with no purpose other than that of succeeding to the tenancy, is not so protected. Such an interloper is not part of the class which the federal law sought to benefit. Cf. N.Y.C. Housing Authority v. Nesmith, 100 Misc.2d 414, 419 N.Y.S.2d 37.

An "elderly family" is deemed to include a disabled head of household as defined by the Social Security Act (42 U.S.C. Sec. 423 et seq.) and a person who "is determined to be essential to his or her care and well being." 42 U.S.C. Sec. 1437a; (2)(C); 24 C.F.R. 812.2. This provision clearly applies to a temporary occupant, such as a nurse, home care attendant or housekeeper, and prevents such person's presence from being deemed a breach of the lease. Since the "essential" status stems from the disabled person's need, it ends upon the death or removal of the disabled person or the termination of the need. It is contextually obvious that such a person does not become a remaining member of the tenant family entitled to continued occupancy upon the disabled person's death. But see Second These definitions, in particular, along with other provisions, indicate a strong policy against the displacement of Section 8 occupants. See 42 U.S.C.A. Sec. 1437f(d)(1)(B)(ii); 24 C.F.R. 880.607; see also Brezina v. Dowdall, 472 F.Supp. 82. For example, expiration of a lease is not a permissible ground for terminating the tenancy. 24 C.F.R. 880.607(b)(1)(iii). Furthermore, if a change in family size causes the housing unit to become either smaller or larger than appropriate, subsidies will not be reduced or terminated until the family is relocated to a more suitable unit. 24 C.F.R. 880.605. Indeed, the owner is required to offer the family a different unit as promptly as possible. 24 C.F.R. 880.605, 881.605.

Farms Neighborhood Housing Development Fund Co. Inc. v. Perez, n.o.r., Index No. 47421/86 (Civ.Ct., Bronx Cty., 1986),aff'd without op. (App.Term, 1st Dept.1988) (granddaughter in occupancy deemed protected after her grandmother's death as both a remaining family member and a person essential to her care).

In sum, Section 8 guarantees continued protection to every legitimate member of the family unit in occupancy. It recognizes that no such family member should suffer eviction, dislocation and homelessness upon the death of the tenant of record. It is thus consistent with the original ameliorative purpose of the United States Housing Act of 1937, the comprehensive legislation of which Section 8 forms a part. See Thorpe v. Housing Auth. of City of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 525-26, 21 L.Ed.2d 474.

SUPREMACY

Petitioner maintains that Section 8 is entitlement legislation, regulating only the subsidy payment, and not affecting the applicable corpus of existing state landlord-tenant law. Respondent, however, contends not only that her status is defined by Section 8, but that New York law is entirely inapplicable. Indeed, respondent maintains that federal law has preempted this proceeding, requiring its dismissal. See Respondent's attorney's affirmation, para. 4.

The Supremacy Clause of the United States Constitution declares that "... the laws of the United States ... shall be the supreme law of the land." U.S. Const. Art. VI, Sec. 2. Consequently, where a conflict exists between state and federal law in an area properly within congressional jurisdiction, federal law controls. See Restatement (Second) Conflict of Laws, sec. 2; Tribe, American Constitutional Law 2d ed., 479 et seq. It is a necessary and axiomatic correlate of federalism that state power must defer to federal, not only where there is a direct statutory contradiction, but where the exercise of state power would be inconsistent with the purposes of the federal law or would interfere with the exercise of rights under federal law. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23; see, Xerox Corp. v. County of Harris, 459 U.S. 145, 103 S.Ct. 523, 74 L.Ed.2d 323.

It may be apparent that Congress intended that the federal government exclusively occupy a given field, even without actual conflict or explicit pronouncement of such preemptive intent....