Appeal from a final judgment of the City Court of Mount Vernon, Westchester County (Brenda Dowery-Rodriguez, J.), entered November 23, 2007. The final judgment awarded landlord possession and the principal sum of $1,548 in a nonpayment summary proceeding.

Final judgment reversed without costs and matter remanded to the City Court for trial.

Landlord commenced this nonpayment proceeding against the Section 8 tenant seeking the sum of $3,963, representing alleged arrears in the full contract rent of $1,300 per month. On the return date, tenant appeared and contended that she was responsible only for the tenant's share of the rent, which was $449 per month; that she owed rent only for September and October 2007; and that Section 8 had stopped paying its share of the rent because of the conditions in the apartment. Landlord conceded that Section 8 had stopped paying its share and claimed that the repairs required were such that the apartment would have to be vacant for the repairs to be made. Without holding a trial, the City Court awarded landlord a final judgment for the principal amount sought in the petition.

Thereafter, tenant obtained counsel, who moved on tenant's behalf to set aside the final judgment and dismiss the petition on the grounds, inter alia, that the petition and final judgment improperly included the Section 8 portion of the rent; that the petition failed to allege tenant's Section 8 status; and that landlord had breached the warranty of habitability. As a result of the motion, the court set aside the original final judgment and entered a new final judgment, awarding landlord possession and arrears at the rate of $449 per month for September and October 2007, and, in view of the conditions in the apartment, at the rate of $650 per month (reduced from $1,300 per month) for November 2007. Tenant appeals from this final judgment.

Since a Section 8 tenant agrees in a Section 8 lease to pay only the tenant's share of the rent, it was error for the City Court in this nonpayment proceeding to include in the award of [*2]rental arrears any more than the tenant's share of the rent (see e.g. Dawkins v Ruff, 10 Misc 3d 88 [App Term, 2d & 11th Jud Dists 2005]; Prospect Place HDFC v Gaildon, 6 Misc 3d 135[A], 2005 NY Slip Op 50232[U] [App Term, 1st Dept 2005]). Thus, the award of $650 for November 2007 was improper.

However, we reject tenant's further claim that the petition should have been dismissed because it improperly sought the full contract rent rather than only the tenant's share of the rent. Although landlord was not entitled to collect the full contract rent in a nonpayment proceeding, there is nothing to indicate that his pro se demand for that rent was made other than in good faith. A "substantive dispute over the amount of rent arrears and other charges actually owed [does not implicate] the legal sufficiency of the underlying rent demand" (501 Seventh Ave. Assoc., LLC v 501 Seventh Ave. Bake Corp., 7 Misc 3d 137[A], 2005 NY Slip Op 50799[U] [App Term, 1st Dept 2005]; see 402 Nostrand Ave. Corp. v Smith, 19 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2008] [a landlord's demand for the full regulated rent where only a preferential rent was owed did not invalidate the demand and petition]; but see New Hempstead Terrace LLC v Reeves, 18 Misc 3d 1113[A], 2008 NY Slip Op 50018[U] [Dist Ct, Nassau County 2008] [a nonpayment petition which improperly demands the Section 8 portion of the rent must be dismissed]; cf. Matter of Rockaway One Co. v Wiggins, 35 AD3d 36, 43 [2d Dept 2006] [a demand for rent based on an unjustified individual apartment improvement increase "cannot be the basis for a determination that the tenant is in default of his or her obligation to pay the lawful regulated rent"]).

Tenant also contends that the petition should have been dismissed because it failed to allege tenant's Section 8 status and failed to allege that landlord complied with its duty under 24 CFR 982.310 to give the local public housing authority a copy of the eviction notice. Tenant claims that these are jurisdictional defects.

Tenant failed to raise these objections prior to the entry of the initial final judgment. Contrary to tenant's contention, these objections do not implicate the jurisdiction of the court and were waived (see 433 W. Assoc. v Murdock, 276 AD2d 360 [2000]; Marrano Dev. Affiliates v Johnson, 20 Misc 3d 134[A], 2008 NY Slip Op 51500[U] [App Term, 1st Dept 2008]; see also 17th Holding v Rivera, 195 Misc 2d 531, 532 [App Term, 2d & 11th Jud Dists 2002] ["landlord's failure to make the required allegation in the petition did not deprive the court of subject matter jurisdiction or otherwise render the petition jurisdictionally defective'"]; Paikoff v Harris, 185 Misc 2d 372 [App Term, 2d & 11th Jud Dists 1999]).

However, tenant correctly contends that the court should have afforded her a trial on her warranty-of-habitability defense. Since there was a triable issue raised with respect to this defense, a trial was required (see RPAPL 745 [1]; Sneddon v Greene, 17 Misc 3d 1, 4 [App Term, 9th & 10th Jud Dists 2007]).

Accordingly, the final judgment is reversed and the matter remanded for trial.

Molia, J.P., Scheinkman and LaCava, JJ., concur.
Decision Date: April 07, 2009