This case is not published in a printed volume and its disposition appears in a table in the reporter.
William D. Friedman, Esq., Attorney for Petitioner.
Michael Wigutow, Of Counsel, Jeffrey A. Seigel, Esq., Attorneys for Respondent,
Nassau/Suffolk Law Services, Committee, Inc.
Scott Fairgrieve, J.
This Court vacates the prior decision of October 12, 2007. The parties have requested this Court to clarify the issue of whether a pleading is jurisdictionally defective if it seeks to recover the Section 8 portion of the rent, along with the tenant's portion, or whether the tenant must plead and prove as an affirmative defense that the tenant is not liable for the Section 8 portion of the rent.
Petitioner has made a motion to reargue claiming that this Court made a mistake of law in dismissing the petition. This Court grants reargument, but adheres to its prior decision in dismissing this matter for the reasons set forth herein.
Petitioner New Hempstead Terrace, LLC commenced this summary proceeding against Respondent Margaret Reeves for nonpayment of rent concerning apartment A1 located at 115 Terrace Avenue, Hempstead, New York. Petitioner states in the petition, dated April 23, 2007, that a Section 8 rental agreement was entered into between the parties, "wherein respondent promises to pay to petitioner as rent $752.00 in advance on the 1st day of each month. (Tenant's share of rent is $304.00)". The petitioner states that Section 8 pays $448.00.
The rent payment schedule for apartment A1 seeks to collect arrears of $1,956.00 for the period commencing January 1, 2006 and ending April 1, 2007. The total of rent in arrears includes the portion of rent that the respondent is liable for and also the portion that Section 8 covers.
This Court previously dismissed this proceeding because:
Absent a showing of a new agreement, tenant is not liable for the Section 8 share of the rent as rent' even once the subsidy has terminated. See, Prospect Place H.D.F.C. v. Gaildon, 2005 NY Slip Op 50232 [2nd Dept 2005]. Petitioner has failed to indicate that a new agreement between landlord and tenant has been created. Exhibit 2 offered in evidence fails to serve as a new agreement because it does not indicate that tenant will undoubtedly be responsible for the entire portion of the rent including $549. to be paid by Section 8.
Petitioner contends that this Court was mistaken in dismissing the petition because it is an affirmative defense that respondent is not responsible for the Section 8 rent. Petitioner has also submitted as an exhibit the letter dated March 30, 2007, from the County of Nassau Office of Housing and Intergovernmental Affairs Housing Services for the proposition that respondent could be held liable for the entire rent under certain circumstances if she continued to live in the premises effective May 1, 2007.
The said letter states that Section 8 was terminated effective April 30, 2007, because the rental unit had violations which were not corrected by Petitioner. Petitioner contends in the motion to reargue that respondent ...