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35 Ossining LLC v. Thornton

Justice Court of the Town of Ossining, Westchester County

January 6, 2014

35 Ossining LLC, Petitioner,
Shelly Thornton, Respondent.

Glen Malia, Esq. For Petitioner

Barbara Finkelstein, Esq., Legal Services of the Hudson Valley, Nancy J. Marrone, Esq., Of Counsel, For Respondent

John W. Fried, J.

This is a summary proceeding to recover possession of real property, pursuant to Article 7 of the Real Property Actions and Proceedings Law. The real property at issue is apartment 1 at 35 Main Street in the Village of Ossining (the "Premises").

The verified petition alleges, in part, that Respondent's Section 8 lease ended on October 31, 2013, after Petitioner caused Respondent to be served, on September 27, 2013, with a notice of termination, and that Respondent is "holding over." Petitioner seeks a judgment awarding it possession of the Premises, a warrant of eviction, past rent, a sum of money for Respondent's fair use and occupancy of the Premises after October 31, 2013, and costs and disbursements.

Instead of answering the petition, Respondent has move to dismiss the petition, pursuant to CPLR 404 and 3211(a)(2) and (a)(7). Petitioner has opposed that motion. Because Respondent's motion raised questions of fact as to whether Petitioner had complied with the notice of termination provisions of 24 CFR 982.310, the Court ordered a hearing, which was held and completed on December 19, 2013. At that hearing, Linda Einfrank, Petitioner's managing member, testified, and respondent Shelly Thornton testified. Based on the evidence admitted at the hearing and the parties' papers, [1] the Court makes the following findings of fact and conclusions of law.

On November 1, 2007, the owner of the Premises, Respondent, and Marilyn D. Geraldo, as director of the Village of Ossining Section 8 Program, executed a standard—form U.S. Department of Housing and Urban Development ("HUD") Housing Assistance Payments Contract and Residential Lease for the Premises, the initial term of which expired on October 31, 2008. After that date, Respondent became a month—to —month tenant.

The Section 8 Program came into existence as part of the Housing and Community Development Act of 1974. (42 USC §§ 1404-1440). Congress intended the Program to provide decent, affordable housing to low-income families. Section 8 Programs give landlords rental subsidies for each qualified tenant who occupies an approved housing unit. These units must meet certain minimal habitability standards and have rent limitations. Families are accepted for the Program on the basis of their income: only a family whose annual income does not exceed 80% of the median income for the area in which the family lives is eligible. As rent, a Section 8 tenant must pay either 30% of the family's monthly adjusted income or 10% of the family's gross monthly income, whichever of the two amounts is greater. (42 USC § 1437a[a][1]). A HUD—approved public housing agency, such as, in this case, the Village of Ossining Section 8 Program, pays the balance of the rent with federal funds. That way, a Section 8 family is not forced to choose between food, shelter, and clothing when allocating its limited resources. (Williams v. New York City Housing Auth., 1994 WL 323634, *2 [SDNY 1994]; Greenwich Gardens Associates v. Pitt, 126 Misc.2d 947 [Nassau Dist Ct 1984]).

On September 27, 2013, Petitioner's process server personally served Respondent with a 30—day "Notice of Termination." That process server also was one of two Town of Ossining constables who, in that capacity, were the Court's enforcement officers. (See Uniform Justice Court Act ["UJCA"] § 110.) The process servicer did not serve Respondent with the Notice of Termination in his capacity as the Court's enforcement officer.

The Notice of Termination advised Respondent that her tenancy would terminate on October 31, 2013, for the following reason: "Landlord's business and economic reasons in that the landlord wants to renovate the apartment and re-rent it for a higher rent."

Thereafter, on November 6, 2013, Petitioner caused Respondent to be served personally with the above-referenced notice of petition and verified petition, which included a copy of the previously served Notice of Termination. [2] When filed with the Court on November 8, 2013, those pleadings did not include an affidavit that the Notice of Termination, notice of petition, and petition were served on the Village of Ossining's Section 8 Office.

Duties of the Court's Enforcement Officers

Before deciding Respondent's motion, the Court believes it is important to the parties and to the community to address the propriety of the Court's enforcement officers serving process, as private process servers, within the Town of Ossining and/or on behalf of litigants before the Court.

In a town of the first class, such as the Town of Ossining, the Town Board may appoint "not more than four civil officers who shall possess all the powers and duties of constables in civil actions and proceedings only, and [who] shall be paid no salary by the town board but shall be entitled to collect the statutory fees allowed by law in such civil actions and proceedings." (Town Law § 20[1][a].) At its 2013 reorganizational meeting, held of January 8, 2013, the Town Board re-appointed two "Justice Court—Town Constables." Thereafter, the Court re-appointed those two constables, as well as the Westchester Court sheriff, as the Court's "enforcement officers." (See UJCA ยง 110[a][1]). A justice court enforcement officer "shall perform the same duties as are performed by sheriffs in courts of record and shall have, within their territorial jurisdiction and subject to any limitations imposed by law or by the ...

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