ADAM SEIDEN, J.
Morton Kaner, Esq., Novick & Kaner, P.C., New Rochelle, for Petitioner.
Jeannine R. Cahill, Esq,, Legal Services of the Hudson Valley, Mount Vernon, for Respondent.
ADAM SEIDEN, J.
Petitioner commenced this non-payment proceeding on July 15, 2014 seeking possession of the premises at 347 South 8th Avenue, Apt. 347D, Mount Vernon, New York and the balance of rent due from March 2014 to July 2014 in an amount totaling $1,569.00. Respondent failed to answer and on September 29, 2014 a judgment for petitioner was entered and a warrant of eviction was issued. Subsequently, on October 2, 2014 respondent filed an order to show cause seeking vacatur of the judgment and warrant which was granted by the Court on November 6, 2014. On December 8, 2014 respondent filed her answer.
Thereafter, on December 15, 2015 both parties appeared before the Court. Respondent made an oral motion to dismiss the petition based upon the petitioner's failure to obtain respondent's signature on the renewal lease after the respondent's Section 8 recertification for 2014. Respondent alleged that petitioner tried to obtain a copy of the renewal lease so she could sign it but that petitioner never provided her with the lease.
Petitioner opposed respondent's motion on the grounds that respondent's change in rent for the 2014 calendar year was based upon the information respondent provided during her recertification and that her failure to sign the renewal lease does not allow respondent to simply refuse to pay the increased rent which is a below market rent amount since the subject premises is a HUD subsidized property. Petitioner acknowledged that he did not know whether respondent refused to sign the lease or whether it was not provided to her but conceded that both the HUD recertification form and renewal lease were not signed by respondent.
It was stipulated by both parties that the fact that the renewal lease was not signed by the respondent was not in contention and that the questions before the Court was whether the fact that the renewal lease was not signed by the respondent mandates dismissal of the instant petition and, if not, what would be the appropriate remedy for petitioner. The Court directed both parties to submit papers in support of their respective positions.
Respondent alleges in her papers that she provided all the requisite information to the petitioner's former property manager Karen Krieger in November 2013 during her annual recertification appointment. Respondent further alleges that she followed up with Ms. Krieger in January 2014 regarding the status of her lease and spoke to Ms. Krieger over the phone on several occasions but that she was never provided with the renewal lease. In support of her position that the petition should be dismissed respondent contends that pursuant to Chapter 7 of the HUD handbook the recertification lease and any corresponding rent change can only become effective upon the completion of the nine step recertification process provided for in Figure 7–3 of the HUD Handbook which includes the signing of the lease and all of the notice requirements. Respondent further contends that Step 8 provided in Figure 7–3 clearly requires that once the new tenant rent is calculated and the recertification lease is generated both the owner and all of the adults residing in the unit sign the lease.
Respondent also argues that pursuant to the HUD requirements set forth in Figure 7–3, petitioner was responsible for issuing a written 30 day notice to the tenant regarding the rent increase, for obtaining the signature of all adult tenants on the renewal lease and for issuing the initial notification of the following year's annual recertification for recertification to be complete. Respondent contends that petitioner failed to execute the final three steps which rendered the recertification incomplete and the renewal lease ineffective. Therefore, respondent argues, petitioner is not entitled under the law to the rent increase on which the instant proceeding is based and the petition should be dismissed.
In opposition, petitioner alleges that on or about December 19, 2011 the parties executed a HUD model lease for subsidized properties and that said lease provides, in part, that tenant's share of the rent shall change if the tenant's income or family composition changes and that respondent was required to recertify income and family composition annually on the anniversary date of the lease. A copy of the original lease is attached to petitioner's papers as Exhibit "A". Petitioner further alleges that during the 2013 calendar year respondent submitted her recertification information and her subsidy was re-calculated resulting in an assistance payment of $719.00 and a net monthly tenant rent of $347.00 based upon her updated annual income. A copy of an unsigned Owner's Certification of Compliance with HUD's Tenant Eligibility and Rent Procedures form is attached as Exhibit "B". Petitioner acknowledges that a lease amendment was prepared but not signed by the tenant. A copy of said unsigned lease amendment is attached as Exhibit "C". Petitioner notes that respondent has not argued that her income or the net rent charge were miscalculated nor did respondent object to the rent invoices that were issued each month showing the rent due and the arrears claimed. Petitioner stated on the record that the billing invoices reflecting respondent's increased rent charges were sent to respondent starting in March 2014. Petitioner's rent history, attached to its papers as Exhibit "D", shows that respondent made payments in March, April, May and July of 2014.
Petitioner argues that respondent's contention that she is entitled to continue paying her pre2014 recertification amount of $30.00 is contradicted by Paragraphs 4 and 16 of the model lease. Paragraphs 4 and 16 of the HUD model lease delineate the requirements regarding changes in the tenant's share of the rent and the mandatory reporting regarding income and family composition changes that affect the calculation of the rent. Petitioner further contends that respondent's position is also in contravention of the clear intent of the HUD subsidy program which is to make subsidies available to individual tenants based upon their financial circumstances and that to allow respondent to only pay $30.00 rent per month would make less funds available for the benefit of all the tenants of the subsidized property.
First, the Court notes that contrary to respondent's contention that Step 8 in Figure 7–3 of the HUD handbook requires that both the owner and the adults residing in the unit to all sign a renewal lease, Figure 7–3 actually requires both the owner and all of the adults residing in the unit to sign the Owner's Certification of Compliance with HUD's Tenant Eligibility and Rent Procedures form before recertification can be considered complete. Therefore, respondent's contention that petitioner's failure to obtain respondent's signature on the renewal lease requires dismissal of the instant proceeding is without merit. Moreover, the original HUD Model lease signed by both parties is a self-renewing lease. Paragraph 2 of the original lease states in pertinent part "After the initial term ends, the Agreement will continue for successive terms of one year each ..." and therefore, the parties expressly provided in the lease for an automatic renewal of the lease for one year terms. See Timothy v. Matison, 20 Misc.3d 1105(A) (Dist. Ct. Nassau Cty, 2008).
However, based upon the documents provided, and assuming arguendo that the respondent was not at fault for failing to sign all the required recertification documents , the Court finds that petitioner failed to comply with the HUD Handbook's recertification requirements. Specifically, it appears from the documents provided to the Court that petitioner failed to obtain the signature of all adult tenants on the Owner's Certification of Compliance with HUD's Tenant Eligibility and Rent Procedures form and failed to properly issue the initial notification of the following year's annual recertification .
The Court assumes that the respondent was not a fault for failing to sign all the recertification documents since petitioner is unable to prove otherwise.
A copy of the unsigned initial notification of the following year's annual recertification addressed to respondent and dated December 12, 2013 is attached to petitioner's papers as part of Exhibit "B".
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Nevertheless, petitioner's failure to complete these aforementioned recertification requirements does not prohibit it from maintaining a non-payment summary proceeding based upon the subsidized tenant rent as calculated by HUD. See Park Lane Residences, LP v. Boose, 26 Misc.3d 1233(A) (holding that a petitioner's failure to comply with the HUD Handbook's recertification requirements barred it from collecting market rent but not respondent's proper share of the rent due pursuant to the lease). As such, the instant proceeding is a proper one and the respondent's motion to dismiss is denied.
The issue remaining is that of the rent owed by respondent based upon the HUD 2014 recertification and rent history provided by petitioner. Based on the HUD recertification effective January 1, 2014 through December 31, 2014, respondent's portion of the rent was $347.00 per month. However, the petition only seeks rental arrears commencing from March 2014 and as indicated by petitioner, it only began properly billing respondent for the increased rent charge in March 2014 and as such, without additional proof of notice to respondent of the increased rent charge prior to March 2014, petitioner is only entitled to the increased rent from March 2014 to December 2014. Petitioner's rent history shows that respondent made the following payments during the 2014 calendar year: $336.00 on March 11, 2014; $400.00 on April 9, 2014; $400.00 on May 21, 2014 and $410.00 on July 10, 2014.
Accordingly respondent owes petitioner arrears in the amount $347 .00 per month for the months of March 2014 through December 2014. The $1,546.00 in payments made by respondent during the 2014 calendar year shall be deducted from the amount due.
Final judgment for petitioner in the amount of $3,470.00 ($347 x 10 months) less $1,546.00 in payments made by respondent during the 2014 calendar year for a total judgment amount due petitioner of $1,924.00.
Judgment for petitioner in the amount of $1,924.00. The warrant of eviction is stayed until September 30, 2015 to give the respondent an opportunity to pay the rental arrears.
This constitutes the Decision and Order of this Court.
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