Tapia v. Successful Mgmt. Corp.
| Decision Date | 01 June 2011 |
| Docket Number | Index No.:400563/08,Index No. :401140/08,Index No.: 115472/08 |
| Parties | RAMONA TAPIA, et al., Plaintiffs, v. SUCCESSFUL MANAGEMENT CORP., et al. Defendants. VLADIMIR DREYTSER, et al. Plaintiffs, v. 195 REALTY, LLC, et al. Defendants, CHRISTINA URENA, et al,Plaintiff(s), v. SKYLINE RESTORATION INC, et al. Defendants). |
| Court | New York Supreme Court |
PRESENT: Hon. Marcy S. Friedman. JSC
In Tapia and Dreytser, two of these three multi-plaintiff actions, the court previously determined a "general issues" summary judgment motion affecting all plaintiffs. By decision and order dated July 20, 2009 (Tapia v Successful Met. Corp., 2009 NY Slip Op 51552[U]), which has been affirmed by the Appellate Division (79 AD3d 422 [1" Dept 2010]), this court held that the antidiscrimination clauses of the J-51 law and Local Law 10 prohibit defendant-landlordsfrom refusing to accept Section 8 benefits from plaintiffs who were tenants in defendants' buildings prior to their receipt of Section 8 vouchers. Three plaintiffs now move for summary judgment on their complaints, claiming that their landlords wrongfully continue to refuse to accept their Section 8 vouchers. Defendants assert case-specific bases for their refusal. In Tapia, plaintiff Irma Garcia, who is 59 years old, disabled, and a resident of her apartment for over 32 years, moves against defendant Simpson Realty Corp. (Simpson). In Dreytser, plaintiff Linda Colon, who is also disabled and a resident of her apartment for seven years, moves against defendant Triple AG Corp. (Triple AG). In Urena, plaintiff Milani Rivas, who is 58 years old and a resident of her apartment for 34 years, moves against defendant 790 RSD Acquisition LLC (790 RSD). By separate motions, Triple AG and Simpson move for summary judgment dismissing plaintiffs' respective complaints against them.
The standards for summary judgment are well settled. The movant must tender evidence, by proof in admissible form, to establish the cause of action "sufficiently to warrant the court as a matter of law in directing judgment." (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) Once such proof has been offered, to defeat summary judgment "the opposing party must 'show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd. [b])." (Zuckerman, 49 NY2d at 562.)
Defendants Simpson and Triple AG move for summary judgment dismissing the complaints on the same ground. They claim that notwithstanding the undisputed fact that plaintiffs have valid, enforceable Section 8 vouchers, defendants are not obligated to accept thembecause plaintiffs' units or household composition render plaintiffs ineligible, in defendants' opinion, to use the vouchers. More particularly, Triple AG contends that plaintiff Colon's apartment does not meet the Housing Qualification Standards (HQS) promulgated under the Section 8 program due to the lack of a sink. (24 CFR § 982.401.) Simpson contends that plaintiff Garcia's boyfriend lives with her, and that Simpson's execution of a Housing Assistance payments (HAP) contract with the New York City Housing Authority (NYCHA) would constitute a fraud upon NYCHA because plaintiff's voucher lists plaintiff as the sole member of the household.
These defenses are without merit as a matter of law. Neither Triple AG nor Simpson submits legal authority that it is for the landlord, rather than NYCHA in the first instance, to make the determination as to a tenant's eligibility to use a voucher. The regulatory framework clearly provides for the Public Housing Agency (PHA) that administers the voucher program -here, NYCHA - to make the eligibility determination. The regulations thus provide: "The PHA may not give approval for the family of the assisted tenancy, or execute a HAP contract, until the PHA has determined that all the following meet program requirements," including: "(1) The unit is eligible; [and] (2) The unit has been inspected by the PHA and passes HQS." (24 CFR § 982.305[a].) The regulations further provide: "If the PHA has given approval for the family of the assisted tenancy, the owner and the PHA execute the HAP contract." (Id., § 982.305 [e].)
Not surprisingly, given the clear terms of the regulations, the courts have uniformly held that the determination of a tenant's eligibility to use a Section 8 voucher is to be made by the PHA, not the landlord. (See Arem v EDMD Realty LLC, Sup Ct, Kings County, October 8, 2010, Rothenberg, J., Index No. 3204/10; Florentino v Nokit Realty Corp., 29 Misc3d 190 [SupCt, New York County 2010]; Jones v Park Front Apts., LLC, 2009 NY Slip Op 33241(U) [Sup Ct, New York County 2009], mod on other grounds 73 AD3d 612 [2010].) To hold otherwise would vest in the landlord the ultimate decision-making authority over whether the tenant qualifies for use of the subsidy, and would circumvent the procedural safeguards - whether an informal hearing in specified circumstances (24 CFR § 982.555) or an Article 78 proceeding -which are available to the tenant in the event the PHA makes an adverse determination.
Thus, in the Colon case, it was for NYCHA, not Triple AG, to determine whether plaintiff Colon's apartment meets Housing Qualification Standards. Notably, although it is undisputed that plaintiff's apartment has only one sink, rather than the two provided for by the regulations (see 24 CFR § 982.40l[b][2][ii], [c][2][ii]), the regulations also expressly set standards for approval of "variations" by the Department of Housing and Urban Development (HUD) in appropriate circumstances. (Id., § 982.401[a][4][i]-[iv].) Triple AG does not discuss the variations, and there is no evidence in this record that HUD has not set standards under which NYCHA may have discretion to approve use of the voucher for an apartment with only one sink. In any event, this issue was for NYCHA, not defendant-landlord, to decide.
Similarly, in the Garcia case, it was for NYCHA, not Simpson, to determine whether the composition of plaintiff's household renders her ineligible for the voucher. Simpson's principal, Joseph Nieves, claims that he routinely accepts Section 8 vouchers, but that he has personal knowledge that plaintiff is residing in the apartment with her boyfriend and other persons. (Nieves Aff, ¶¶ 4-5.) He further claims that the HAP contract stated that plaintiff was the sole occupant, and that he refused to sign it because it would have required him to falsely certify that only plaintiff resided in the apartment. (Id., ¶ 5.)
Simpson correctly contends that a landlord may not certify false information regarding a tenancy. Nor may a tenant's provision of false information be condoned. However, Simpson makes no showing that he was required to certify false information. While Simpson asserts that the HAP contract that plaintiff presented contained a false statement that she was the sole occupant, Simpson fails to produce a copy of such contract. Simpson also makes no showing that it could not have corrected information in the HAP contract. Significantly, the form HAP contract (Simpson Motion, Ex. E) does not contain any provision requiring the landlord to certify the composition of the household. On the contrary, the Tenancy Addendum to the contract requires the PHA to determine the household composition, and thus expressly provides: (Part C of HAP Contract, § 3[a].) The regulations also set forth a procedure for the voucher holder to add additional occupants to the household. ) Thus, under both the implementing regulations discussed above (see 24 CFR § 982.305 [e]) and the HAP contract itself, it was NYCHA's responsibility to determine whether the household qualified for use of the voucher.
In a recent case which rejected a similar claim that the HAP contract would have required the landlord to certify false information about the number of bedrooms in the plaintiff's apartment and the identity of the occupants, the court cited the affidavit of Gregory Kern, the manager of NYCHA's Section 8 program, stating "that the HAP does not require defendants to certify the size of plaintiff's apartment or anything concerning her income." The court further reasoned that if the landlord suspects that the tenant is hiding income, it can report such concerns directly to NYCHA which will then investigate and make a determination concerning the tenant's eligibility for the voucher. (Id.) Here, similarly, Simpson should not have unilaterally decided that plaintiff was ineligible. Rather, it was obligated to execute the HAP contract and to report any suspected wrongdoing to NYCHA.
The court has considered the remaining contentions of Triple AG and Simpson and finds them to be without merit. To the extent that Triple AG now claims that it was never presented with the voucher, that contention is plainly contradicted by the testimony of its president, Johanan Altberg, that he received plaintiff's attorney's April 29, 2008 letter , demanding that defendant accept plaintiff's voucher. (Altberg Dep. at 17.)
790 RSD opposes plaintiff Rivas' motion for summary judgment on a different case-specific...
To continue reading
Request your trial