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Supreme Court, Appellate Term, New York.

ROOSEVELT ISLAND ASSOCIATES, Petitioner-Landlord-Respondent, v. Dorothy DONALD, Respondent-Tenant-Appellant.

Decided: May 12, 2004

Present: Hon. LUCINDO SUAREZ, P.J., Hon. WILLIAM P. McCOOE, Hon. PHYLLIS GANGEL-JACOB, Justices. Eviction Intervention Services, Inc., New York City (Nina Taylor of counsel), for appellant. Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C., New York City (Paul N. Gruber of counsel), for respondent.

Final judgment entered October 4, 2002 (Larry S. Schachner, J.) affirmed, without costs.

Tenant occupies a section 8 housing unit on Roosevelt Island.   At issue in this nonpayment proceeding is landlord's claim for unpaid utility charges.   The record shows that in 1990, the New York City Housing Development Corporation, the section 8 administrator for the Roosevelt Island project, approved an amendment for each tenant's lease providing, in part, as follows:

Landlord shall provide electricity to the Tenant on a submetered basis ․ Tenant shall be billed monthly by the Landlord for the electricity as measured by the submeter for this unit.   This amount, due when billed, shall be remitted with the tenant rent and shall be considered additional rent (emphasis added).

Since the utility charges are designated as “additional rent” under the governing lease, they are a proper item of recovery in this summary proceeding (RPAPL § 711[2];  Marietta Associates v. Callier, 160 Misc.2d 718, 723, 610 N.Y.S.2d 999;  cf., Matter of Bedford Gardens Co. v. Silberstein, 269 A.D.2d 445, 702 N.Y.S.2d 884).   Notably, the total amount sought by landlord for shelter and utilities does not exceed 30% of the tenant's adjusted income (see generally, 42 U.S.C. § 1437a).  Matter of Binghamton Housing Authority v. Douglas, 217 A.D.2d 897, 630 N.Y.S.2d 144 is not dispositive as it involved housing accommodations situated in a public housing authority and was decided under different Federal regulations which are not controlling in this case.   Tenant's subsidy is provided under a project-based program and she has not shown that collection of the disputed charges pursuant to the approved lease provision is prohibited by any applicable regulation.

This constitutes the decision and order of the court.