Opinion
L T 81160/06.
Decided April 20, 2007.
Marybeth Hotaling, Esq. Cohen, Hurkin, Ehrenfeld, et al., Brooklyn, NY, Attorneys for Petitioner.
Clerk of the Court, Minerva Morales, Respondent Pro Se.
This is a summary licensee proceeding in which petitioner seeks to recover possession of Apartment 5B at 607 Concord Avenue, Bronx NY ("Apartment"). Respondent, appearing pro se, defends by claiming that she is entitled to succeed to the tenancy.
Facts
The underlying facts were largely uncontested at trial. Respondent's late mother, Frances Morales, was granted admission into 607 Concord Senior Housing, a Section 202 housing project for senior citizens, in June 2004 as she was then 87 years of age. Respondent and her mother moved into the Apartment in June 2004, but the lease and recertification forms reflected only Frances Morales' occupancy. Following Frances Morales' death on November 22, 2005, respondent, then age 53, contacted petitioner's management office on several occasions to be added to her mother's recertification forms and lease. (Resp. Exh. E.) That application was rejected based on what petitioner characterized as respondent's non compliance with "the rules and regulations." (Resp. Exh. C.) This proceeding then ensued.
Discussion
The Apartment is federally subsidized under the Section 202 program pursuant to a Project Rental Assistance Contract (PRAC). (Pet. Exhs. 8B and 8C.) The purpose of the Section 202 program is to "accommodate the special needs of elderly persons" ( 12 USC § 1701q[a]) and provide housing for the "very low income elderly." ( 12 USC § 1701q[d][1].) Thus, "all units assisted under [that] section shall be made available for occupancy by very low-income elderly persons." ( 12 USC § 1701q[d][1].) An elderly person is defined as "an individual who is at least 62 years of age." ( 12 USC § 1701q[k])(1); 24 CFR § 5.214; 24 CFR § 891.205.) To ensure that this class alone benefits from the statute, most premises, as here, are further governed by a regulatory agreement between HUD and the owner under which the latter must "limit occupancy of the project to elderly families and individuals as defined in Section 202 of the Housing Act of 1959, as amended, and applicable HUD regulations." (Pet. Exh. 7.)
Despite this clear framework, respondent contends that although she is not elderly, she is nevertheless entitled to succeed to the Apartment because she lived with the tenant of record since the inception of her tenancy in 2004. While there is no serious dispute that respondent has continuously resided in the Apartment since 2004, respondent's claim is still without merit. Significantly, 12 USC § 1701q previously defined "elderly families" to include "the surviving member or members of any family. . . who were living, in a unit assisted under this section, with the deceased member of the family at the time of his or her death." ( 12 USC § 1701q[d][4]; Pub.L. 94-375, § 11[b].) However, former subsection (d)(4) was repealed and the statute amended in 1990 to contain a much narrower redefinition of "elderly person" as an "individual who is at least 62 years of age." ( 12 USC § 1701q[k])[1].) The plain meaning of this amendment clearly evinces Congress' intent to limit the class of persons to benefit from the statute as redefined. ( Cf. Matter of Windmill Housing Development Fund Co. v. Winchell, 2002 NY Slip Op 01731 [App Term 9th and 10th Jud Dists], affd, 16 AD3d 429, 430 [2nd Dept 2005].) Indeed, when this definition is read, as it must, in pari materia with Section 202's statutory objective of "accommodat[ing] the special needs of elderly persons" ( 12 USC § 1701q[a]), respondent is categorically barred from succeeding to the Apartment.
Alternatively, respondent argues that her name would have appeared on the recertification forms as an authorized member of the household but for petitioner's refusal to so add her. Indeed, respondent introduced correspondence from petitioner which indicated that management had initially approved having respondent added to her mother's lease, but ultimately did not do so because of respondent's alleged noncompliance with "the rules and regulations." (Resp. Exh. C.)
Whether the absence of a remaining family member's name on the recertification forms bars their succession claim in federally subsidized housing is the subject of great controversy. Specifically, HUD Handbook 4350.3, § 3 15[B] requires that a remaining family member be a party to the lease in order to be entitled to succession to the premises and the underlying subsidy. ( See also Sunset Housing Associates v. Caban, 190 Misc 2d 343, 348 [Hous Part, Civ Ct, Kings Co, 2001, Marton, J].) Appellate courts in the First Department however, have held that such an omission does not preclude succession which is otherwise established by competent evidence. ( 2013 Amsterdam Avenue Housing Assoc. v. Estate of Almeda Wells, 2006 NY Slip Op 50084[U], [App Term 1st Dept], citing Matter of Manhattan Plaza Assocs. v. DHPD, 8 AD3d 111, 112 [1st Dept 2006].)
The court need not reach this issue as even if respondent's name had been added to the recertification forms, her succession claim would still fail. Specifically, the statutory and regulatory scheme governing all federally subsidized housing contemplates a critical distinction between programmatic eligibility and project eligibility. (HUD Handbook 4350.3, § 3 14.) Thus, even if respondent were eligible to participate in the Section 202 program, she would still not be eligible for admission to this particular Section 202 project by virtue of the underlying regulatory agreement. Under that agreement between HUD and petitioner, occupancy of the Apartment is limited to "elderly families and individuals" as defined above. Indeed, to accord non elderly remaining family members succession rights to Section 202 PRAC housing would be to effectively transform the nature of such housing in direct contravention of Congress' express statutory and regulatory mandate of providing housing for "very low income elderly persons." ( 12 USC § 1701q[d][1].) Thus, these provisions control and bar respondent's succession to the Apartment. ( See St. Phillips Church Housing Corp. v. George, NYLJ, January 26, 2005, at 19, col. 1 [Hous Part, Civ Ct, NY Co, Wendt, J.].)
Accordingly, the Clerk of the Court is directed to enter a final judgment of possession in favor of petitioner. Issuance of the warrant is stayed five days after service of a copy of this Decision/Order with Notice of Entry upon respondent. The parties are directed to retrieve their exhibits from the Part T Clerk forthwith. This constitutes the Decision/Order of the Court.