The parties to this action have stipulated to the following facts under CPLR 3222. The

apartment in question is located on Martin Luther King Drive in Hempstead and owned by the Petitioner, Park Lake Residences. The Respondent, Vanessa Boose, is the tenant in this nonpayment proceeding. The apartment is part of the U.S. Department of Housing and Urban

Development (HUD) subsidized Section 8 project. The Petitioner and HUD executed a Loan

Management Set- Aside Contract under which HUD pays the difference between the full contract rental price and the tenant's share of the rent. The Respondent's share of the rent in this case was determined based on thirty percent of her adjusted income.

HUD procedures concerning the Section 8 project are set out in the HUD Handbook (handbook) and require a tenant to recertify on an annual basis by supplying information requested by the owner of the premises or by HUD. Recertification is necessary to ensure that a tenant is eligible for Section 8 assistance on a continuing basis, and to ensure that the tenant's rent will be commensurate with her ability to pay. As part of this process, the landlord is required to provide the tenant with written "Reminder Notices" concerning information for completing recertification.

The tenant in this action was required to recertify by September 1 of each year. Around

May 1, 2008 the Petitioner provided the Respondent with the First Reminder Notice, followed by

a Second Notice on June 2, 2008, and a Third Notice on July 1, 2008. Furthermore, in a letter

dated July 28th, 2008 the Petitioner advised the Respondent that she had not yet completed

recertification and it was imperative she come to the management office in order to continue her

subsidy. The September 1 deadline passed without the tenant recertifying. On November 13, [*2]

2008 the Petitioner sent a final letter to the Respondent stating that because she failed to

complete recertification by the appropriate date the subsidy had been terminated and that her new

monthly rent would be $1,311.00.

On April 1, 2009, after several months of non-payment, the tenant recertified and the

Petitioner subsequently provided her with a written notice that her monthly rent was readjusted to$238.00. On April 13, 2009 the Petitioner served the Respondent with a Ten Day Notice of

Proposed Termination followed by a Notice of Petition and Petition on May 27, 2009 stating that

the tenant owed rental arrears in the amount of $6,730.00.

The sole issue before the court is whether or not the notices provided by Petitioner to

Respondent are sufficient as a matter of law to support the increase of Respondent's rent to the

market rental price. Respondent argues that the language of the HUD handbook is mandatory

while the Petitioner claims it is merely suggestive.

The crux of the Petitioner's argument is that the notices provided to the tenant "substantially complied" with HUD provisions and followed the "technical suggestions" of the handbook. Each notice contained the name of the individual the Respondent was to contact to recertify, the phone number of that person, and that the consequences for failure to respond to the reminder notices would be a termination of assistance and an increased rent. The owner claims that these notices satisfy the due process requirements of the handbook and notified the Respondent that it was time for her annual recertification. Petitioner claims that he should not be penalized for Respondent's failure to act.

Petitioner bases this position on a myriad of cases stating that the handbook is not entitled

to the same weight as codified law. In Allied Manor Road v. Grube (N.Y.L.J. 4/20/05, pg. 21)

the court found that the handbook "cannot be accorded the dignity of a regulation entitled to the

full force and effect of law" however that case goes on to state that the handbook should still be

given considerable weight. Similarly, Catco Associates v. Goodwin (7 Misc 3d 1020[A], 2005

WL 1106640 [N.Y.Dist.Ct.]) held that the handbook "is not conclusive upon a State Court, but

may be relied upon on as persuasive authority." The Petitioner also relies on Thorpe v. Housing

Authority of the City of Durham ( 393 U.S. 268, 89 S.Ct. 518)in which the United States Supreme Court held that the handbooks issued by HUD are instructional, technical suggestions and items for consideration but are not absolute requirements.

However in Green Park Associates v. Inman (121 Misc 2d 204, 467 NYS2d 500[NY City, Civ Ct]) the Civil Court of the City of New York, Kings County, interpreted the language in the Thorpe case to mean that the recertification procedures in the handbook is mandatory and not merely advisory.

HUD publishes an "Occupancy Requirements of Subsidized Multifamily Housing [*3]

Programs" handbook (Doc. 4350.3), which outlines the procedures to be followed by

owners of substantial rehabilitation dwellings with regard to recertification and

termination of assistance. It is established that the handbook prescribed recertification and termination procedures were intended to be mandatory and not, as petitioner suggests, merely advisory. (Thorpe v. Housing Auth.,3 93 U.S. 268, 276; Stanley v. Housing Auth.,469 F Supp 1013.)

Despite this interpretation it is undisputed by this court that the handbook is not codified

law and therefore does not carry the same force as a statute. It is clear that HUD intended the

handbook to be mandatory in order to ensure procedural uniformity among the program. Many

court decisions have interpreted the handbook's requirements and procedures to be mandatory.

Even those decisions that have not found the language mandatory rely on the provisions and give

them considerable weight.

In Stewart City, Inc. v. Brownlee (22 Misc 3d 38, 874 NYS2d 663 [2nd Dept]) the notices sent by the Petitioner to the tenant stated that in order to recertify the tenant had to contact "a staff member at the landlord's Management Office and that the tenant would be charged market rent if there was not compliance." However, the notices did not provide the name of the staff person at the property to contact, that individual's contact information, how the contact should be made, or the amount of the market rent. In this case the court found that the language in these notices did not comply with the handbook's requirements and therefore the termination of the Section 8 subsidy was improper.

The court in Jackson Terrace Associates v. Rice (142 Misc 2d 438, 533 NYS2d 205 [Nassau Dist Ct]) also held that the handbook should be considered more than merely instructional. The court stated that:

The Handbook was prepared for national application and the procedures set forth were

intended to be mandatory rather than merely advisory (Green Park Assocs. V. Inman, 121

Misc 2d 204, citing Thorpe v. Housing Auth., 393 U.S. 268, and Staten v. Housing Auth.,

469 F. Supp. 1013). However, the specific purposes of the Federal housing acts are to

provide a decent home and suitable living environment for families that lack the financial

means of providing such a home without governmental aid (Thorpe v. Housing Auth.,

supra .)

Furthermore, Goldstein v. Bush (NYS2d 2001 WL 1602661, 2001 NY Slip. Op. 50016

(U)) emphasized the importance of the specific language set out in the handbook for the notices:

The HUD Regulations are quite specific as to the content of the second and third

reminder notices. The second and third reminder notices should include all of the

information given in the first reminder notice and must also state that if the tenant fails to

respond to the owner by the specified cutoff date ...the owner may suspend tenant

assistance payments and increase the tenant's rent to the full HUD approved market rent, [*4]

effective the first rent period commencing after the cutoff date.

After careful consideration the court has decided that each of the notices must contain the

information specified in the handbook. According to the handbook (HUD Handbook¶ 7-7 [B] [2][a][1]-[6], [B] [3] [b], and [B] [4] [b] [1]-[2]) :

2. First Reminder Notice

b. The First Reminder Notice must do the following:

Refer to the requirements in the HUD model lease regarding the tenant's responsibility to recertify annually.

State the name of the staff person at the property to contact about scheduling a recertification interview, the contact information for that person, and how the contact should be made. The owner may propose an interview date as long as the tenant has the option to reschedule the interview for a more convenient date and time.

Give the location, days, and office hours that property staff will be available for recertification interviews.

List the information that the tenant should bring to the interview.

State the cutoff date by which the tenant must contact the owner and provide the information and signatures necessary for the owner to process recertification.

State that if the tenant responds to the owner after the specified cutoff date (10th day of the 11th month after last annual recertification), the owner will process the annual recertification but will not provide the tenant 30 days notice of any resulting rent increase

State that if the tenant fails to respond before the recertification anniversary date, the tenant will lose the assistance and will be responsible for paying the **Section 236** market rent in a 236 project, 110% of BMIR rent or the full contract rent in a Section 8 or ** Section 202 PAC** project. In a Section 202 PRAC or Section 811 PRAC project, the tenant may be evicted for noncompliance with the lease requirement to recertify annually.

3. Second Reminder Notice

b. The Second Reminder Notice must provide the tenant with all of the information given in the First Reminder Notice (See subparagraph B-2 b above.)

4. Third Reminder Notice [*5]

b. The Third Reminder Notice must do the following:

Provide the tenant with all of the information given in the First Reminder Notice. (See subparagraph B-2 b above.)

Specify the amount of rent the tenant will be required to pay if the tenant fails to provide the required recertification information by the recertification anniversary date and state that this increase will be made without additional notice.

The Petitioner's First and Second Notices did not comply with the above stated HUD requirements. In relevant parts these two notices state:

To complete our review of your income and family composition, you must meet with Lakeisha at Park Lake Residences and supply the required information. Lakeisha will be available for recertification interviews 06/11/08-06/18/08. Please contact Lakeisha at (516) 489-4920 as soon as possible to schedule an appointment for an interview.

Cooperation with the recertification requirement is a condition of continued program

participation. **You must report the required information and provide the required

signatures to enable the owner to process your recertification.** If you contact Lakeisha

after 08/10/08, we will process your recertification but you will not receive 30 days notice of any resulting rent increase.

The notices fail to give the address of Park Lake Residences, the hours of availability and do not contain a clause stating that if the tenant fails to recertify she will loss her assistance and be forced to pay market rent.

Similarly, the Third notice fails to abide by the requirements set out by HUD. The Petitioner's Third notice is also missing the location of Park Lake Residences, its office

hours and a clause stating that if the tenant fails to recertify she will loss her assistance and be

responsible for the market rent. In addition, the notice fails to specify the amount of rent the tenant will be required to pay. The landlord's failure to provide all the required information required by the HUD handbook prohibit it from maintaining a non-payment action based on the market rent of the premises. (Good Neighbor Apt. Assoc. v. Rosario, NYLJ, July 9, 2008, at 26, col. 1 [Civ Ct, NY County], Clinton Towers Housing Inc. v. Ryan, NYLJ, March 10, 2010, at 26, col.1 [Civ Ct, NY County]).

Conclusion

The court finds that the Petitioner failed to comply with the HUD Handbook's

requirements and therefore the notices are inadequate, therefore the Petitioner is barred from collecting market rent but not Respondent's proper share of the rent due pursuant to the lease between the parties. The termination of the Section 8 subsidy was improper.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:March 11, 2010