Respondent Isham Hibbert appeals from a final judgment of the Civil Court, Bronx County (Eardell J. Rashford, J.), entered December 1, 2004, after a nonjury trial, which awarded petitioner possession and surcharges in the amount of $1,668.50 in a nonpayment summary proceeding.

PER CURIAM:

Final judgment (Eardell J. Rashford, J.), entered December 1, 2004, reversed, without costs, and final judgment awarded to respondent Isham Hibbert dismissing the nonpayment proceeding.

Even assuming, arguendo, that the Mitchell-Lama housing surcharges sought herein by petitioner are properly recoverable in a summary nonpayment proceeding brought pursuant to RPAPL 711(2) (cf. Matter of Dayton Towers Corp. v Gethers, 24 AD3d 663 [2005]), the possessory judgment issued below cannot be sustained on this record, which establishes that respondent Hibbert timely submitted the requisite 2003 income affidavit and substantially complied with the landlord's subsequent request for additional documentation. Notably, respondent's initial submission included proof of his former wife's transfer of ownership of the unit, albeit proof in a form deemed unacceptable by petitioner, and the alternate document provided by petitioner — a "Transcription of Rights Certificate" — was fully completed by respondent as of the time of trial.

This constitutes the decision and order of the court.
Decision Date: November 2, 2006