LEXINGTON COURT LLC v. TORRES (2024)

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, Inc. v. Menotti, 160 A.D.2d 544, 554 N.Y.S.2d 193 [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 HUD Handbook 4350.3 REV-1, § 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 § 7-8[D][1][C][1]); or, on the first month following the 30-day notice period, if the tenant's rent increases as a result of the recertification (HUD Handbook § 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 § 7-8[D][1][C][2] [Changes in the total tenant payment and tenant rent are effective “on the first of 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, 53 N.Y.S.3d 803 [App. Term, 2nd Dept., 9th & 10th Jud. Dists. 2017]; Starrett City, Inc. v. Brownlee, 22 Misc.3d 38, 874 N.Y.S.2d 663 [App. Term, 2nd Dept., 2nd & 11th Jud. Dists. 2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.