Crestwood Lake Section I Holding Corp., Petitioner v. Jasmine Rosado, John Doe and Jane Doe, Respondent (2024)

The following papers numbered 1-4 were read and considered on respondent's motion to dismiss due to a defective and improper rent demand.

Papers Numbered

Notice of Motion and Affidavits Annexed 1

Affirmation/Affidavits in Opposition 2

Replying Affirmations/Affidavits 3

Notice of Petition and Petition 4

On July 14, 2023 petitioner filed a Notice of Petition and Petition against respondent based on a non-payment matter. On December 4, 2023 respondent filed the instant motion to dismiss. Petitioner submitted opposition on January 10, 2024 and respondent replied on January 12, 2024.

Respondent argues for dismissal based on petitioner's predicate notice and petition being defective and improper. Respondent asserts petitioner is seeking rent above and beyond the amount required to be paid pursuant to the terms of respondent's Department of Housing and Urban Development ("HUD") Section 8 voucher administered by CVR Associates of New York ("CVR").

Petitioner's fourteen (14) day notice, dated June 22, 2023, seeks rent in the amount of $1,785.00 for April 2023; $1,947.00 for May 2023; and $1,947.00 for June 2023. The petition seeks rent in the amount of $742.00 for April 2023 and $1,947.00 per month for May through July 2023 (Petition filed July 14, 2023; para. 5). In support of respondent's motion, CVR correspondence indicates the participant rent amount (tenant pays to owner) is only $200.00 a month (CVR Correspondence dated April 12, 2023; Respondent's Exhibit A). As such, respondent asserts the maximum rental amount of $200.00 per month is all petitioner may seek.

In opposition, petitioner argues the motion fails to include an affidavit from the tenant and the CVR correspondence is inadmissible. Furthermore, petitioner concedes they " . . . are not seeking any Section 8 monies in this proceeding" (Petitioner's Opposition; Affidavit of Theresa Pena dated January 10, 2024).

It is undisputed that failure to serve a proper predicate notice is a prerequisite to a summary proceeding and dismissal is required if petitioner fails to serve a proper predicate notice (Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786 [1980]). It is further established that "[a] Section 8 tenant agrees in the Section 8 lease only to pay the tenant share of the rent [and] [a]bsent a showing by the landlord of a new agreement . . . a Section 8 tenant does not become liable for the Section 8 share of the rent as "rent" even after the termination of the subsidy. [Therefore], a nonpayment proceeding does not lie to recover the Section 8 portion of the rent from the tenant" (Rainbow Assocs. v. Culkin, 2003 WL 2004427 [App. Term 2nd and 11th Jud. Dists. 2003]; 7 Highland Management Corp. v. McCray, 9 Misc 3d 129[A] [App. Term 9th and 10th Jud. Dists. 2005]; Schickler v. Thorpe, 2002 WL 768298 [App. Term. 9th and 10th Jud. Dists. 2002]; Prospect Place HDFC v. Gaildon, 6 Misc 3d 135[A] [App. Term 1st Dep't 2005]; Malcolm X Apts., Inc. v. Allen, 45 Misc 3d 129[A] [App. Term 1st Dep't 2014]).

Here, this Court finds it sufficient to determine the sole legal issue based on an attorney affirmation and credible documentation from CVR. It is clear the "participant rent (tenant pays to owner)" is $200.00 per month (CVR Correspondence dated April 12, 2023; Respondent's Exhibit A). The CVR correspondence is dated April 12, 2023, the same month and year, as the first demanded monthly rent in the predicate notice and petition.

Petitioner fails to provide an explanation for seeking more than the $200.00 participant rent amount in its fourteen day (14) notice and petition. Rather, petitioner concedes it is not seeking Section 8 monies (Petitioner's Opposition; Affidavit of Theresa Pena dated January 10, 2024). This concession is in direct contradiction to the monetary amount sought in the rent demand and petition. This Court notes the fourteen (14) day notice and petition were prepared by petitioner's attorney. As such, if petitioner is not seeking Section 8 monies, then a good faith rent demand and petition should not have included monies beyond respondent's required participant rent amount (but see Rippy v. Kyer, 23 Misc 3d 130[A] [App. Term 9th and 10th Jud. Dists. 2009 [finding petitioner's pro se demand for rent made in good faith]). Furthermore, the petition is contradictory in that it seeks Section 8 monies, however, concedes "[t]he premises is subject to the Section 8 regulations administered by CVR New York . . . " (Petition filed July 14, 2023; para. 10).

As such, this Court finds petitioner's fourteen (14) day notice and petition contain defective and improper rent demands. Respondent's motion to dismiss is hereby GRANTED. Respondent's remaining arguments are hereby moot.

Ada D. Medina, J.