Opinion
LT-000174/11.
Decided May 24, 2011.
Rose R. Fenelon, Petitioner pro se.
Cean Owens Law Firm, LLC, Attorneys for Petitioner on Sur-Reply.
Patricia Jones, Respondent pro se.
Nassau/Suffolk Law Services, Committee Inc., Attorneys for Respondent on Reply.
Respondent moves for an Order pursuant to RPAPL §§ 711(1) and 741(4) and 24 CFR § 982.310 vacating the judgment and warrant of eviction against her and her minor children as well as dismissing this proceeding. Petitioner opposes the motion; Respondent replies to Petitioner's opposition and Petitioner interposes a sur-reply.
Respondent and her children occupy the premises owned by Petitioner at 985 Stanton Avenue, Baldwin, New York, pursuant to a Section 8 Housing Choice Voucher one year lease, the initial term beginning on January 1, 2010 and ending December 31, 2010. The rent for such property, a private one-family dwelling, was $2,200 a month, with the Respondent's share being $681.00 and the Housing Assistance Payment (HAP) being $1,519 a month. According to the HAP contract, the Owner (Petitioner) was responsible for all utilities, except trash collection (Petitioner's Exhibit E [p2 of 10] signed by Petitioner).
Petitioner alleges that she timely served a "Notice of Landlord's Intention not to Renew Section 8 Lease upon Expiration of Lease Term" on both the Respondent and the Office of Housing Homeless Services, Section 8 Office-Dept. She annexes as Exhibit A a copy of said Notice dated November 1, 2010, notarized on November 19, 2010 and marked " Third Notice". It is the same " Third Notice" that is annexed to the Holdover Petition filed with the Court in this proceeding. Said notice states as follows:
PLEASE TAKE NOTICE that the undersigned Landlord, Rose Fenelon, elects not to renew your Section 8 lease of the subject premises described as 4 bedrooms, Living room, Dining room, 2 Bathrooms and Kitchen of the house located at 985 Stanton Avenue, Baldwin, New York 11510, now held by you under a written Section 8 lease which commenced December 31, 2009 to be used for dwelling purposes,
As such, please let this notice serve as formal notification that since your lease will terminate on January 1, 2011 and will not be renewed, I require that you make arrangements to vacate the premises at lease end. Failure to vacate at lease end will result in the Landlord commencing a summary proceeding against you, seeking to dispossess you from the subject premises.
A reading of 24 CFR § 880.607(a)1(b)(1)(iv) specifically states that this form of notice is invalid. Said section specifies:
* * * No termination by an owner will be valid to the extent it is based upon a lease or a provisions of State law permitting termination of a tenancy solely because of expiration of an initial or subsequent renewal term. All terminations must also be in accordance with the provisions of any State and local landlord tenant law and paragraph (c) of this section. (emphasis supplied)
24 CFR 882.511 states in pertinent part, with regard to terminating a Section 8 lease:
(c) Grounds for termination of or refusal to renew the lease. The Owner must not terminate or refuse to renew the lease except upon the following grounds: (emphasis supplied)
(1) Serious or repeated violation of the terms and conditions of the lease.
(2) Violation of applicable Federal, State or local law.
(3) Other good cause.
(d) Notice of termination of tenancy. (1) The Owner must serve a written notice of termination of tenancy on the Family which states the date the tenancy shall terminate. Such date must be in accordance with the following:
(I) When termination is based on failure to pay rent, the date of termination must be not less than five working days after the Family's receipt of the notice.
(ii) When termination is based on serious or repeated violation of the terms and conditions of the lease or on violation of applicable Federal, State or local law, the date of termination must be in accordance with State and local law.
(iii) When termination is based on other good cause, the date of termination must be no earlier than 30 days after the notice is served on the Family.
(2) The notice of termination must:
(I) State the reasons for such termination with enough specificity to enable the Family to prepare a defense.
(ii) Advise the Family that if a judicial proceeding for eviction is instituted, the tenant may present a defense in that proceeding.
(iii) Be served on the Family by sending a prepaid first class properly addressed letter (return receipt requested) to the tenant at the dwelling unit or by delivering a copy of the notice to the dwelling unit.
A valid notice of termination is a condition precedent to the commencement of a Section 8 eviction proceeding. Homestead Equities v. Washington, 176 Misc 2d 459, 462, (Civ.Ct. Kings Co. 1998); Chinatown Apts. v. Chu Co Lam, 51 NY2d 786, 788 (1980). Unlike defects in pleadings, "defects in the notice of termination may not be cured by amendment nunc pro tunc." Id.
There is no proof offered by way of affidavit of service or acknowledgment from either respondent or the Housing Authority that the pre-requisite 30 days notice of a valid notice of termination was given in this matter.
"It is essential that the PHA be given timely notice of the commencement of proceedings to terminate the tenancy, not only so that it does not continue to make housing subsidy payments on behalf of a tenant who is no longer in possession, but also to enable it to monitor the actions of the landlord and to afford it the opportunity to intervene if it deems it necessary to protect the interests of the Section 8 tenant." Lamlon Development Corp. v. Owens, 141 Misc 2d 287, 294 (Dist. Ct. Nassau Co. 1988). "[A] landlord seeking to terminate a Section 8 tenancy must serve a copy of the termination notice (or equivalent notice) on the public housing authority at the same time that such notice is served on the tenant. Failure to do so is a jurisdictional defect which precludes the maintenance of a summary proceeding."
Accordingly, as there is no proof that a valid notice of termination was given in this matter, Respondent's motion vacating the judgment and warrant of eviction is granted and this proceeding is dismissed.
The balance of the other issues raised in the parties' motion papers are moot due to the dismissal hereof.
So Ordered: