Lexington Ct. LLC v Torres (2024 NY Slip Op 24297)

PROCEDURAL SUMMARY

Appeal from an order of the Civil Court of the City of New York, New York County (Jack Stoller, J.), entered on or about January 2, 2024. The order, after a nonjury trial, dismissed the petition in a nonpayment summary proceeding.

HEADNOTES

Landlord and Tenant - Rent Regulation - Section 8 Recertification - Retroactive Rental Share Increase

In a nonpayment proceeding seeking to recover rent for a project-based Section 8 apartment, respondent tenant was not responsible for a retroactive increase in his share of the rent resulting from an untimely recertification, because the first notice that he received of the increase was at the time of the recertification. Respondent's Section 8 recertification was not timely processed before the anniversary date due to a mistake by petitioner landlord's manager. The subsidy was subsequently restored retroactively to the anniversary date, but respondent's share of the rent was increased as a result of the recertification. The Department of Housing and Urban Development Handbook provides that when the landlord fails to timely complete the verification and recertification processing procedures, changes to the tenant's share of the rent are effective on the anniversary date, if the tenant's rent decreases as a result of the recertification, or on the first month following the 30-day notice period, if the tenant's rent increases as a result of the recertification.

APPEARANCES OF COUNSEL

Rose & Rose Law (Phillip L. Wartell of counsel) for appellant.

Felix Torres, respondent pro se.

Order (Jack Stoller, J.), entered on or about January 2, 2024, affirmed, without costs.

Landlord commenced this nonpayment proceeding seeking to recover rent for the subject project-based Section 8 apartment. The trial evidence, fairly interpreted (see Claridge Gardens v Menotti, 160 AD2d 544 [1st Dept 1990]), established that tenant's Section 8 recertification was not timely processed before the August 2022 anniversary date, due to a mistake by landlord's manager. In November 2022, the subsidy was restored retroactively to August 2022. However, tenant's share of the rent was increased as a result of the recertification (from approximately $762) to $1,312. The central issue in dispute is whether tenant is responsible for the retroactive increase in his share of the rent for the months of August through November 2022. It is undisputed that tenant was not given the required 30-day notice of a change in rent prior to the anniversary date (see U.S. Department of Housing and Urban Development [HUD] Handbook 4350.3 REV-1, ch 7, ¶ 7-5 [B] [1]) of August 1, 2022, and, in fact, the first notice of the rent increase to $1,312 was given to tenant in mid-November 2022.

Civil Court dismissed the petition on equitable principles. We affirm, but for different reasons. The HUD Handbook provides that when the landlord fails to timely complete the verification and recertification processing procedures, changes to the tenant's share of the rent are effective on the anniversary date, if the tenant's rent decreases as a result of the recertification (see HUD Handbook 4350.3 REV-1, ch 7, ¶ 7-8 [D] [1] [c] [1]); or on the first month following the 30-day notice {**85 Misc 3d at 13} period, if the tenant's rent increases as a result of the recertification (HUD Handbook 4350.3 REV-1, ch 7, ¶ 7-8 [D] [1] [c] [2]).

Since tenant's rent increased as a result of the recertification, and the first notice that tenant received of the increase in rent was in November 2022, the increase was not effective for the months of August through November 2022 at issue herein (see HUD Handbook 4350.3 REV-1, ch 7, ¶ 7-8 [D] [1] [c] [2] [Changes in the total tenant payment and tenant rent are effective "(o)n the first of [*2]the month following a 30-day notice period, if the tenant rent increases as a result of the recertification"]). Therefore, the petition was properly dismissed (see Greater Centennial Homes Hous. Dev. Fund, Inc. v Jones, 56 Misc 3d 48 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Starrett City, Inc. v Brownlee, 22 Misc 3d 38 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).