JANKUS v. PALMER (2019)

The following named papers numbered 1 to 3 submitted on this Motion to Dismiss on January 29, 2019

papers numbered

Notice of Motion and Supporting Documents 1

Order to Show Cause and Supporting Documents Opposition to Motion 2

Reply Papers to Motion 3

Respondent Wendy J. Palmer (“the respondent”) moves for an order, pursuant to CPLR 404(a) and 3211 (a)(1), dismissing the petition herein, on the ground that the petitioner renewed the respondent's Section 8 voucher-based tenancy subject to the terms and conditions of the initial lease between the parties, and failed to allege good cause to terminate said tenancy. The petitioner has submitted opposition wherein he seeks (although not noticed by motion) summary judgment in his favor, together with the issuance of a warrant of eviction. The respondent has submitted a reply, and the motion is determined as follows.

The relevant facts are as follows. On November 30, 2012, the parties entered into a lease for a term of one (1) year, beginning on December 1, 2012, and ending on November 30, 2013. The lease provides that the renewal term shall be for successive one (1)-year terms. A Section 8 Tenant-Based Assistance Housing Choice Voucher Program Addendum is also attached to the lease. This addendum sets forth additional conditions which apply to the Section 8 voucher program, including the grounds for termination of the lease by the owner.

On October 11, 2018, the petitioner personally served the respondent with a Notice to Terminate Section 8 Tenancy at End of Term, which is attached to the petition as Exhibit A. In this notice, the petitioner informed the respondent that he was electing to terminate the subject tenancy as of November 30, 2018.

However, on November 14, 2018, the respondent recertified with the Section 8 program. The respondent has provided a copy of the “Section 8 Housing Choice Voucher Program Contract and Tenancy Addendum Amendment,” as part of Exhibit A. This document provides that the reason for amending the previously mentioned addendum was annual recertification to be effective December 1, 2018, with the next recertifiaction to be due on December 1, 2019. The petitioner does not dispute that he received a copy of this document. It is also uncontested that the petitioner received the monthly rent payments from the Section 8 program for December 2018 and January 2019.

Pursuant to CPLR 404(a), “[t]he respondent may raise an objection in point of law by setting it forth in his answer or by a motion to dismiss the petition, made upon notice within the time allowed for answer. If the motion is denied, the court may permit the respondent to answer, upon such terms as may be just; and unless the order specifies otherwise, such answer shall be served and filed within five days after service of the order with notice of entry; and the petitioner may re-notice the matter for hearing upon two days' notice, or the respondent may re-notice the matter for hearing upon service of the answer upon seven days' notice.”

According to CPLR 3211(a)(1), “[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that a defense is founded upon documentary evidence.”

In Ochs v. Gordon, 55 Misc 3d 1205(A)(Nassau Dist Ct 2017), this court addressed the termination of a Section 8 voucher-based tenancy, finding, inter alia, that the “Petitioner's acceptance and retention of rent beyond the termination date of the lease is a waiver of the Petitioner's right to terminate the lease.” The court continued, stating “[t]hus, the acceptance of rent by Petitioner constitutes an implied continuance of the Respondent's tenancy subject to the same conditions and terms of the original lease between Petitioner and Respondent [citations omitted]” (id.). The acceptance of Section 8 subsidy payments is “considered an affirmative approval on behalf of the Landlord to renew the initial term of the lease given the renewal provision provided in the lease”(Timothy v. Matison, 20 Misc 3d 1105[A][Nassau Dist Ct. 2008] ).

In his affirmation in opposition, petitioner's counsel explains a procedure, which he used in the instant matter, whereby the landlord/petitioner “returns” the rent by giving his counsel checks for the rent amounts payable to the public housing authority (“PHA”) (Affirmation in Opposition, Exhibit 2). Petitoner's counsel then holds the checks and, at some point, he seeks to have these amounts applied for use and occupancy. Nevertheless, in the case at bar, it is undisputed that the rent payments for December 2018 and January 2019 were never returned by the petitioner. Petitioner's counsel also concedes that “as a matter of law there was a renewal of the lease due to ‘acceptance of rent’ under conditions that the tenant could reasonable [sic] believe the lease was renewed.” (Affirmation in Opposition, ¶ 6).

Based upon all of the foregoing, the respondent's motion is granted and the petition is hereby dismissed, in its entirety. The petitioner's request for summary judgment is denied as moot.

So Ordered.

Scott Fairgrieve, J.