Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts, December 28, 2017

Nassau Suffolk Law Services Committee, Inc. (Judy Slater Hirshon of counsel) for appellant.

Horing, Welikson & Rosen, P.C. (Ashka S. Patwa of counsel) for respondent.

Ordered that the final judgment is reversed, without costs, so much of the order entered April 6, 2015, as, upon reargument, adhered to the prior determination dated December 15, 2014, denying tenant's motion to dismiss the petition is vacated, and tenant's motion is granted.

Landlord commenced this holdover summary proceeding after the service of a 30-day notice of termination, alleging that, upon the expiration of tenant's lease several months earlier, her tenancy had become month to month. Tenant moved to dismiss the petition, alleging that she is the recipient of enhanced voucher assistance under the Section 8 program (see 42 USC § 1437f [t]), a fact that is not disputed by landlord, and that her status protects her from eviction from her apartment without cause. By amended order entered December 15, 2014, the District Court denied her motion. By order entered April 6, 2015, the court, upon reargument, adhered to its prior determination. After a nonjury trial, the District Court awarded landlord a final judgment of possession.{**58 Misc 3d at 91}

Under the enhanced voucher program, "the assisted family may elect to remain in the same project in which the family was residing on the date of the eligibility event for the project" (42 USC § 1437f [t] [1] [B]). In section 11-3 (B) of its publication entitled Section 8 Renewal Policy: Guidance for the Renewal of Project-Based Section 8 HAP Contracts (2015), the United States Department of Housing and Urban Development has recognized a "right to remain," stating that, where a tenant has chosen to exercise that right, tenancies may only be terminated for cause under federal, state or local law, and that "[o]wners must continually renew the lease of an enhanced voucher family." Indeed, given its ordinary meaning, the language of the statute itself makes clear that enhanced voucher recipients "have the right to remain in their apartments as long as they remain eligible and continue to occupy the apartments" (Estevez v Cosmopolitan Assoc. LLC, 2005 WL 3164146, *4, 2005 US Dist LEXIS 29844, *12 [ED NY, Nov. 28, 2005, No. 05 CR 4318(JG)]). "[T]here is nothing in the statute that provides a time-limit to the right to remain," and, in fact, it would be "illogical to provide a tenant with the right to remain without requiring the landlord to offer the tenant the option to renew the lease" (Jeanty v Shore Terrace Realty Assn., 2004 WL 1794496, *5, 2004 US Dist LEXIS 15773, *18 [SD NY, Aug. 10, 2004, No. 03 Civ 8669(BSJ)]). Here, tenant's right to remain will continue in effect and landlord must offer to renew her lease "so long as the property is offered as rental housing and [tenant] receives enhanced vouchers, absent good cause to terminate her tenancy under Federal, State or local law and provided the public housing authority continues to find the rent reasonable" (Jeanty, 2004 WL 1794496, *5, 2004 US Dist LEXIS 15773, *19).

We note that the so-called "right to remain" does not conflict with 42 USC § 1437f (d) (1) (B) (ii), which requires that any Section 8 lease include a provision prohibiting the landlord from terminating the tenancy only during the term of the lease, "except for serious or repeated violation of the terms and conditions of the lease, for violation of applicable Federal, State, or local law, or for other good cause" (see Rosina v Parra, 18 Misc 3d 12 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). Rather, the "right to remain" is an additional measure enacted to protect enhanced voucher recipients.

Since landlord has not alleged, let alone demonstrated, that tenant has lost the "right to remain" in the subject apartment, {**58 Misc 3d at 92}tenant's motion to dismiss the petition should have been granted.

Accordingly, the final judgment is reversed, so much of the order entered April 6, 2015, as, upon reargument, adhered to the prior determination dated December 15, 2014, denying tenant's motion to dismiss the petition is vacated, and tenant's motion is granted.

Marano, P.J., Garguilo and Ruderman, JJ., concur.