COSMOPOLITAN ASSOCIATES v. “John Doe” & “Jane Doe”, Undertenants. (2006)

Order unanimously affirmed with $10 costs.

In this nonpayment proceeding, tenant moved to dismiss, claiming, amongst other things, that she is a recipient of Section 8 assistance and that the rents sought consist solely of the Section 8 portion of the rent.   Landlord cross-moved for summary judgment, claiming that it had discontinued its participation in the Section 8 voucher program and had so notified tenant, and that the parties had renewed only tenant's lease and not the Section 8 agreement (cf. 7 Highland Mgt. Corp. v. McCray, 9 Misc.3d 129(A), 2005 N.Y. Slip Op. 51530[U], 2005 WL 2347662 [App. Term, 9th & 10th Jud. Dists.] ).   In opposition to landlord's cross motion, tenant showed, inter alia, that landlord is a recipient of a “J-51” tax abatement under what is now section 11-243 of the Administrative Code of the City of New York, and argued that, as a consequence, landlord could not validly discontinue its participation in the Section 8 program.   Subdivision (k) of section 11-243 provides that a landlord shall not deny a dwelling accommodation in a property receiving such an abatement to any person because of his “being eligible for a governmentally funded housing assistance program, including, but not limited to, the section 8 housing voucher program․”

 As a general rule, a party that accepts the benefit of a statute is estopped from seeking to avoid the obligations imposed by the statute (see Pavone v. Aetna Cas. & Sur. Co., 91 Misc.2d 658, 662-663, 398 N.Y.S.2d 630 [1977];  31 CJS, Estoppel and Waiver § 124).   Thus, since landlord receives the benefit of the J-51 program, it may not avoid its obligation under the program to accept Section 8 subsidy payments on behalf of tenant.   Landlord's contention that subdivision (k) of section 11-243 requires it to accept the assisted tenant but not her voucher cannot be sustained, for it would have the effect of rendering the anti-discrimination provision meaningless (cf. Estevez v. Cosmopolitan Assoc., 2005 WL 3164146 [E.D.N.Y.] [under a federal statute giving Section 8 enhanced-voucher tenants the right to remain in the project, landlord was obligated to accept the tenants' vouchers because otherwise “the protection the statute was enacted to afford would be eliminated”];  Jeanty v. Shore Terrace Realty Assoc., 2004 WL 1794496 [S.D.N.Y.2004] [same] ).   Accordingly, since landlord was not within its rights in refusing to accept or credit Section 8 subsidy payments on behalf of tenant and since landlord's actions engendered the rent default, if any, this proceeding must be dismissed (see e.g. Jandson Realty Corp. v. Rogers, 192 Misc.2d 505, 747 N.Y.S.2d 135 [App. Term, 9th & 10th Jud. Dists. 2002];  Starrett City v. Hamilton, N.Y.L.J., Feb. 21, 1991 [App. Term, 2d & 11th Jud. Dists.];   see also Franklin Tower One v. N.M., 157 N.J. 602, 725 A.2d 1104 [1999] ).

We do not reach the issue of whether landlord could opt out of the Section 8 subsidy program were it not currently receiving the benefits of the J-51 program.