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: [*2]

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 may have caused the rental to lose its Section 8 subsidy:

"It should be pointed out that according to her own exhibits at least one reason for the unit failed inspection is determined to be the tenant's fault".

Petitioner contends that respondent must assert as an affirmative defense that respondent is not liable for the Section 8 rent. The Court rejects this argument. In Vincenzi v. Strong, WL 2296505 (NY City Civ Ct, 2007), the court makes clear that under Section 8 leases, Landlords agree not to hold tenants liable for the Section 8 subsidy unless there is a new agreement by the tenant to be responsible for the Section 8 portion of the rent. Specifically, the court held:

Thus, a "Section 8 tenant agrees in the Section 8 lease only to pay the tenant share of the rent. Absent a showing by [a] landlord of a new agreement . . . a Section 8 tenant does not become liable for the Section 8 share of the rent as rent' even after termination of the subsidy." (Prospect Place HDFC v. Gaildon, 2005 NY Slip Op 50232[U] [App term 1st Dept] quoting Rainbow Assoc. v. Culkin, 2003 NY Slip Op 50771[U] [App Term 2d Dept]. See also Dawkins v. Ruff, 10 Misc 3d 88, 90 [App Term 2d Dept 2005]; and Moshulu Assocs., LLC v. Cortes, NYLJ, April 5, 2006, at 21, col. 3 [Hous Part, Civ Ct, Bx Co, Danzinger, J.].)

Petitioner cannot maintain the present proceeding against respondent for the Section 8 subsidy absent an allegation of a new agreement which has not been done. This Court holds that petitioner cannot maintain a summary proceeding against respondent to recover in the first instance, absent a good faith allegation that a new agreement has been reached to make the tenant liable for the Section 8 rent. Thus, this is not an affirmative defense to be pleaded by respondent. [*3]

Petitioner contends that respondent may be held liable if respondent's actions impeded petitioner's access to the apartment to effectuate repairs. The court in Vincenzi, declined to hold the respondent liable based upon the foregoing for the Section 8 rent. Instead the court held that a holdover proceeding is the proper remedy to evict a tenant for a material breach of the lease:

Petitioner however invites this court to consider evidence allegedly showing that respondent impeded petitioner's access to the Apartment which he maintains caused the lapses in HQS and NYCHA's ensuing termination of respondent's subsidy. The court declines petitioner's invitation as it is without jurisdiction to review the propriety of NYCHA's determination. (Bravo Realty Corp. v. Lewis, NYLJ, March 24, 1999 at 26, col. 1 [App Term 1st Dept]; Fieldbridge Assocs. v. Champion, NYLJ, March 26, 1993, at 24, col. 5 [App Term 2d & 11th Jud Dists]. cf. East Harlem Pilot Block Building 1 HDFC v. Cordero, holding that the Civil Court has jurisdiction to review the propriety of the suspension of a project based Section 8 subsidy.) Where a tenant breaches an obligation under the HAP contract and/or Section 8 regulations, such as by failing to provide access to the premises for correction of HQS violations as alleged here, a landlord's remedy is to commence a holdover proceeding for material noncompliance with those provisions. (See e.g.,24 CFR § 982.310 [a] [2], permitting owner termination of a tenancy for violation of federal, state or local law that imposes obligations on the tenant in connection with the occupancy or use of the premises). A nonpayment proceeding to recover the Section 8 portion of the rent from the tenant does not lie. (24 CFR § 982.451[b][4][iii]; 24 CFR § 982.310[b][1]. See also McNeill v. New York City Housing Authority, 719 F.Supp. 233, 255 [SDNY 1989].)

In Prospect Place HDFC v. Gaildon, 6 Misc 3d 135, 800 NYS 355, (NY Sup App Term, 2005), the court held that a tenant is not liable for the Section 8 rent even after termination of the subsidy:

Neither the Federal regulations governing this Section 8 tenancy (see 24 CFR § 982.310[b]) nor the parties' December 13, 2002 stipulation settling the underlying nonpayment proceeding obligates tenant to pay the full contract rent ($4,452.52) that ultimately was awarded to landlord below. "A Section 8 tenant agrees in the Section 8 lease only to pay the tenant share of the rent. Absent a showing by landlord of a new agreement, and none was here shown, a Section 8 tenant does not become liable for the Section 8 share of the rent as 'rent' even after the termination of the subsidy" (Rainbow Assocs. v Culkin, 2003 NY Slip Op 50771[U] [App Term, 2d Dept]). We have modified the final judgment accordingly and, in view of the tenant's payment of funds exceeding the amount of the reduced judgment, have permanently stayed execution of the warrant.

In 7 Highland Management Corp. v. McCray, 9 Misc 3d 129, 808 NYS2d 920, 2005 WL 2347662 (NY Sup App Term, 2005), the court held:

. . . a nonpayment proceeding will not lie to recover the Section 8 portion of the rent even after the subsidy has terminated . . ."

In NY Prac, Landlord and Tenant Practice in New York, Sec. 19:79, the following appears [*4]which indicates that no cause of action will lie absent a new agreement:

§ 19:79. "Section 8" housing program Termination of Section 8 tenancies "Good cause" required Nonpayment by housing agency

The landlord may not terminate the lease for the government's nonpayment of the assistance component since such an omission does not violate the tenant's obligations under the lease.

24 C.F.R. § 982.310(b); Prospect Place HDFC v. Gaildon, 6 Misc 3d 135(A), 800 N.Y.S.2d 355 (App. Term 2005) ("A Section 8 tenant agrees in the Section 8 lease only to pay the tenant share of the rent. Absent a showing by landlord of a new agreement, and none was here shown, a Section 8 tenant does not become liable for the Section 8 share of the rent as 'rent' even after the termination of the subsidy."); see e.g., Licht v. Moses, 11 Misc 3d 76, 813 N.Y.S.2d 849 (App. Term 2006) ("In the absence of a new agreement, after the termination of the subsidy, in which the tenant agrees to pay the nontenant share of the rent, a nonpayment proceeding will not lie to recover that portion of the rent, even in those instances in which the section 8 subsidy has been properly terminated."); 7 Highland Management Corp. v. McCray, 9 Misc 3d 129(A), 808 N.Y.S.2d 920 (App. Term 2005) ("[S]ince, under the lease as renewed, tenant did not agree to pay the Section 8 portion of the rent, this nonpayment proceeding does not lie."); Dawkins v. Ruff, 10 Misc 3d 88, 810 N.Y.S.2d 783 (App. Term 2005); Unity Assocs., LP v. Spicer, N.Y.L.J., 6/6/00, p. 30, col. 1 (App. Term, 2d & 11th Jud. Dists.) ("Because landlord is a recipient of payments from FSS it was landlord and not tenant who knew or should have known that the payment checks were not being received.").

See also NY Residlt, Sec 5:134, which states:

§ 5:134. Rent setting in Section 8 Existing Housing Program Tenant's share of the rent Tenant not responsible for HA portion

In the event the PHA does not pay its portion of the rent:

The family is not responsible for payment of the portion of the rent to owner covered by the housing assistance payment under the HAP contract between the owner and the HA.

24 C.F.R. § 982.310(b)(1); § 982.451(b)(4)(iii). This regulation codifies the holding in McNeill v. New York City Housing Authority, 719 F. Supp. 233 (S.D. NY 1989). See also, Rainbow Associates v. Culkin, 2003 WL 2004427 (NY App. Term 2003). (A Section 8 tenant agrees in the Section 8 lease only to pay the tenant share of the rent. Absent a showing by the landlord of a new agreement, a Section 8 tenant does not become liable for the subsidy portion of the rent as "rent" even after termination of the subsidy.)

Petitioner cannot maintain an action for Section 8 rent even if the pleading incorporates money owed for the tenant's portion of rent. This is not an affirmative defense to be pleaded and proved by the respondent/tenant.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:January 9, 2008

Nassau/Suffolk Law Services Committee, Inc.

SF/mp