Riverstone Assocs., LP v. Campbell
| Decision Date | 05 June 2015 |
| Docket Number | L & T 84355/13. |
| Citation | 57 Misc.3d 380,61 N.Y.S.3d 811 |
| Parties | RIVERSTONE ASSOCIATES, LP, Petitioner, v. Avril CAMPBELL, Respondent. |
| Court | New York Civil Court |
57 Misc.3d 380
61 N.Y.S.3d 811
RIVERSTONE ASSOCIATES, LP, Petitioner,
v.
Avril CAMPBELL, Respondent.
L & T 84355/13.
Civil Court, City of New York, Kings County.
June 5, 2015.
Gutman Mintz Baker & Sonnenfeldt, PC by Young Yoo, Esq., New Hyde Park.
Legal Services NYC Brooklyn Branch by Karen May Bacdayan, Esq., Brooklyn.
SUSAN F. AVERY, J.
In this nonpayment proceeding petitioner moves for leave to reargue the decision and order of this court dated January 21, 2015, and upon granting reargument, denying respondent's motion for summary judgment and permitting the petitioner to pursue its claim for market rent from the respondent. Respondent opposes the motion.
BRIEF FACTUAL HISTORY
The respondent is a recipient of an HUD1 (section 8) rental subsidy2 for which she must annually re-certify her household income and composition. The submission of her annual re-certification must be timely, which according to HUD rules, must be completed by the recipient's anniversary date. Respondent's anniversary date is October 1.3 Petitioner asserts that respondent filed her re-certification documents on October 16 (2013) and the documents submitted, falsely claimed that her son was enrolled as a college student.4 Upon its investigation, petitioner learned that the respondent's son was not enrolled as a student in college. Respondent subsequently submitted accurate certification information in February of 2014.5
BRIEF PROCEDURAL HISTORY
Petitioner commenced this nonpayment proceeding seeking rent as follows: balance of $96.00 for the month of March of 2013, and $505.00 per month for the months of April through August of 2013. The petition is dated August 1, 2013.6 A default judgment was entered against the respondent, which was vacated by this court on January 23, 2014.
During the course of this proceeding, counsel for the respondent was granted leave to file an amended answer containing the defense, that the respondent's re-certification
should be processed retroactively; and the petition has been amended to reflect additional rental charges as they became due.
Counsel for the respondent previously moved for partial summary judgment which was denied as premature. Thereafter, respondent commenced a subsequent motion for summary judgment,7 which was granted by this court. It is from this later decision that petitioner seeks reargument.
DECISION AND ORDER DATED JANUARY 21, 2015
Respondent's prior motion for partial summary judgment, sought an order striking that portion of petitioner's claim for the market rent, which was granted by this court. It was undisputed that the respondent has been re-certified since February of 20148 , and petitioner failed to demonstrate that it followed proper procedures when inquiring and determining the existence or non-existence of "circumstances beyond the respondent's control" which prevented the respondent from timely filing her HUD re-certification. As HUD requires the petitioner to make an inquiry as to whether circumstances beyond the tenant's control existed, and to notify the respondent of its decision and of the right to appeal a negative determination, in it's prior determination, this court severed petitioner's claims for market rent.
PETITIONER'S ARGUMENTS
Petitioner contends that this court improperly applied the facts and the HUD regulations in determining that the petitioner is not entitled to collect market rent, in this summary proceeding, for the period of respondent's non-compliance. Petitioner asserts that the court mistakenly concluded that the respondent's submission of false documentation in support of her 2014 annual re-certification qualifies as an "extenuating circumstance" pursuant to the HUD Handbook. Petitioner asserts that the examples of "extenuating circumstances" as illustrated in the HUD handbook include hospitalization, family emergency or military duty,9 "none of which are akin to the circumstances herein ..."10
It is petitioner's contention, that "there is no basis under the HUD regulations for a finding that the respondent's representation that her son was a student, when in fact he was not a student, qualifies as ‘extenuating circumstances' [because] she was not aware that he[r son] was not in school [at that time]."11 Petitioner argues that the respondent's submission of such false and inaccurate information is fraudulent.12 Petitioner asserts that to allow retroactive
re-certification under these circumstances would encourage further fraud by tenants.
In addition, petitioner states that despite having been provided with all the required HUD re-certification notices the respondent did not timely re-certify, and when she did re-certify she provided incorrect information.
RESPONDENT'S ARGUMENTS
It is respondent's contention, that this court correctly decided it's prior motion for partial summary judgment. Respondent maintains that petitioner is prohibited from maintaining this nonpayment proceeding against respondent seeking market rate rent, as she has currently re-certified. Respondent also contends, as a secondary argument, in its prior motion for partial summary judgement, that petitioner failed to comply with the HUD requirements regarding inquiring as to whether extenuating circumstances prevented Ms. Campbell from timely re-certifying. Additionally, respondent asserts that the petitioner failed to follow the HUD handbook, in that petitioner did not consider whether extenuating circumstances prevented Ms. Campbell from timely re-certifying, and did not provide a written determination of it's decision that extenuating circumstances did not exist, or notice that the respondent may appeal petitioner's finding that extenuating circumstances did not exist.
LEGAL REQUIREMENTS: MOTION TO REARGUE13
"A motion to reargue is based on no new proof; it seeks to convince the court that it was wrong and ought to change its mind."14 Leave to reargue is left to the sound discretion of the court,15 and that discretion includes considering a motion to reargue, even where the movant failed to annex the papers that had been submitted on the motion from which reargument is sought.16 In the interest of justice, this court exercises its discretion and grants petitioner leave to reargue.
APPLICABLE HUD RULES
Eligibility for HUD assistance is based on household income, and "[c]hanges in income or family composition can affect the amount of assistance a tenant is eligible to receive and, therefore, the amount the tenant pays for rent."17 In order "[t]o ensure that assisted tenants pay rents commensurate with their ability to pay, HUD requires ... re[-]certification of family income and composition at least annually. [Landlords] must then recompute the tenants rent and assistance payments ... based upon information gathered."18 The
"[a]nnual re[-]certification must be completed by the tenant's re[-]certification anniversary date"19 which "is the first day of the month in which the tenant moved into
the property."20
By "the 10th day of the 11th month after the last re[-]certification ... the tenant must contact the owner and provide the required information ... to process the re[-]certification."21 Where, the "tenant ... provides [required] information ... after the 10th day of the 11th month following the last annual re[-]certification ..." the certification process is delayed.22 And where the "[t]enant responds after the re[-]certification anniversary date [the t]enant is ‘out of compliance’ [with HUD requirements23 ... and as of the] re[-]certification anniversary date, the tenant must begin paying the market rent."24
"When a tenant fails to [timely re-certify] an owner must inquire whether extenuating circumstances prevent[ed] the tenant from [timely re-certifying] ..."25 This inquiry is required to be made "[a]t the time the tenant submits the required re[-]certification information"26 and "[i]f the tenant indicates that extenuating circumstances were present, the tenant must promptly provide the owner with evidence of their presence."27 The owner must then "[d]etermine whether extenuating circumstances were present"28 and "provide the tenant with a written notice of the decision ... [which] must ... inform the tenant of his/her right to appeal the ... decision.29
Extenuating circumstances "are circumstances beyond the tenant's control."30 Examples of extenuating circumstances include: "[h]ospitalization of the tenant,"31 where the "[t]enant is out of town for a family emergency ( [because of] the death or severe illness of a close family member),"32 and where the "[t]enant [is] on military duty overseas."33
Notwithstanding that a tenant untimely...
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