Opinion
402300/10.
March 24, 2011.
DECISION/JUDGMENT
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:
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Papers Numbered Notice of Motion and Affidavits Annexed.. Answering Affidavits..................... Cross-Motion and Affidavits Annexed...... Answering Affidavits to Cross-Motion..... Replying Affidavits...................... Exhibits.................................Petitioner commenced this Article 78 proceeding to challenge the determination of defendant New York City Housing Authority (NYCHA) to terminate petitioner's tenancy. Petitioner requests that this court reverse and annul NYCHA's determination to terminate petitioner's tenancy and dismiss the charges against petitioner, or in the alternative, vacate the stipulation of settlement dated October 22, 2009 and compel NYCHA to schedule a hearing to challenge NYCHA's decision to terminate petitioner's tenancy, or, in the alternative, compel NYCHA to make a determination on petitioner's request to vacate the Stipulation of Settlement dated October 22, 2009. NYCHA cross-moves to dismiss petitioner's petition. Petitioner also filed a cross-motion to amend her petition. However, as petitioner's counsel indicated at oral argument that she would withdraw petitioner's cross-motion, the court will not address that motion. For the reasons set forth below, the petition is hereby dismissed in its entirety.
The relevant facts are as follows. Petitioner resided in apartment 7A at 395 Fountain Avenue, in the borough of Brooklyn in the Cypress Hill Houses, a NYCHA-owned public housing project. On June 29, 2009, NYCHA brought charges against petitioner alleging that she submitted false affidavits of income between 2002 and 2008, willfully misstated or concealed the employment income received by her son Lloyd Saunders from 2002 to 2008, failed, neglected, or refused to furnish complete income verification, failed, neglected, or refused to submit to NYCHA statements setting forth requisite facts as to her income, income of other family members, identity and number or composition of the persons in her household necessary to determine her rent, eligibility, and the appropriate size of her apartment, failed to pay additional rent due to NYCHA because she failed to report a change in income, and permitted Lloyd Saunders, an unauthorized occupant, to take up residence in her apartment without obtaining written consent of management.
A hearing was scheduled for August 25, 2009. Although petitioner did show up for her hearing on August 25, it was adjourned to October 22, 2009. On October 22, 2009, petitioner entered into a stipulation of settlement with NYCHA instead of appearing before an administrative law judge for a hearing. According to petitioner, she tried explaining to NYCHA's counsel during settlement discussions that Lloyd Saunders had not lived with her since the 1970's but that she could not provide proof at that time. In any event, petitioner stipulated that she "submits to the jurisdiction of the Hearing Officer, admits to the Specification of Charges herein, and consents to a final determination in the manner hereinafter set forth." Petitioner also stipulated that she "agrees to the Termination of Tenancy and waives all rights to any further administrative or judicial review or proceedings." In this regard, petitioner agreed to move out of her apartment by March 31, 2010. NYCHA's board approved the stipulation on November 10, 2009 and mailed a notice to petitioner on November 18, 2009.
On April 9, 2010, petitioner's counsel submitted to NYCHA a motion to vacate the stipulation of settlement. NYCHA did not respond to this motion. It is undisputed that there are no procedures set forth by NYCHA for moving to vacate a stipulation of settlement. On August 18, 2010, petitioner commenced the instant action by filing an Article 78 petition.
There is a four month statute of limitations to bring an Article 78 proceeding to challenge an administrative determination that is measured from the date the determination becomes final and binding upon the petitioner. NY CPLR § 217. In the event of a termination of tenancy by NYCHA, the determination becomes final and binding once petitioner receives notice of NYCHA's determination. See Blackman v New York City Hous. Auth., 280 A.D.2d 324, 325 (1st Dept 2001). "[A]ffidavits attesting to service by mail . . . create a rebuttable presumption of proper delivery and receipt. . .," See Northern v. Hernandez, 17 A.D.3d 285, 286 (1st Dept 2005). Where service is properly made by mail, five days shall be added to the time provided by the statute of limitations. See CPLR § 2103(b)(2).
In the instant case, the court finds that petitioner is time-barred from making the instant application. NYCHA has attested to service by mail on November 18, 2009 and petitioner has not denied proper delivery and receipt of the notice. Once petitioner received notice from NYCHA approving the terms of the stipulation of settlement, that agreement became a final determination, as set forth in paragraph 1 of the stipulation of settlement itself. Therefore, the statute of limitations expired on March 23, 2010, four months and five days after the mailing of the notice. However, petitioner did not commence this proceeding until August 17, 2010, nearly five months after the statute of limitations had already expired. Accordingly, petitioner is time-barred from bringing this petition.
The court reject's petitioners argument that the statute of limitations has not begun to accrue in the instant action because the statute of limitations for commencing an Article 78 action begins to run when petitioner receives notice of the denial of the request to vacate the stipulation of settlement. Petitioner's argument that the holding in Yarbough v Franco, 95 N.Y.2d 342 (2000) — which determined that the four month statute of limitations for commencing an Article 78 proceeding begins to run from the denial of the request to vacate a default judgment — applies to a motion to vacate the stipulation of settlement, such as in the instant action, is without merit. In Yarbough, the Court of Appeals determined that when a tenant requests to vacate NYCHA's default determination, the four-month statute of limitations for commencing an Article 78 proceeding begins to run from the receipt of the denial of the request to vacate the default. The Yarbough court reasoned that the statute of limitations did not begin to run until the denial of the request to vacate the default because "an administrative determination is not final for judicial review if it rests upon an empty record . . . a request to vacate a default affords the defaulting party an opportunity to develop a factual record setting forth the reasons for the nonappearance and any meritorious defenses that would justify re-opening the default . . . [and] because no meaningful judicial review lies from the default itself . . ." See Yarbough, 95 N.Y.2d 342, 347-348. The Yarbough Court further reasoned that a motion to vacate a default is different from a motion to reconsider — which does not toll the statute of limitations — because "a motion to reconsider generally seeks the same relief, and advances factual and legal issues that were previously litigated at the administrative level" while "[i]n contrast, a motion to vacate a default presents factual questions not previously passed upon by the administrative agency." See id at 348-349. The Court further noted that a motion to reconsider differed from a motion to vacate a default in that unlike a motion to reconsider, "by seeking to vacate the default, petitioner was simply availing herself of [NYCHA]'s own invitation under its procedures to present new facts supporting her reasons for the default and to proffer a meritorious defense." See id at 349.
In the instant case, the court declines to find that the four month statute of limitations begins to run when petitioner receives notice of the denial of the request to vacate the stipulation of settlement. Initially, petitioner has failed to cite any case law supporting her position that a motion to vacate a stipulation should be treated like a motion to vacate a default judgment for the purpose of determining when the statute of limitations begins to accrue. Moreover, the Court's reasoning in Yarbough for concluding that the statute of limitations begins to run when a petitioner receives a denial of the request to vacate the default does not support petitioner's proposition that the statute of limitations in the instant action begins to run when petitioner receives a denial of her request to vacate the stipulation of settlement. In contrast to a petition moving to vacate a default judgment, the administrative determination to terminate petitioner's tenancy in the instant case does not rest on an empty record. Indeed, the determination was made relying on a stipulation of settlement entered into by NYCHA and petitioner. Further, petitioner is not asking for an opportunity to develop a factual record setting forth the reasons for her failure to appear at the hearing. Petitioner did appear at the hearing, had settlement discussions with counsel for NYCHA, chose to enter into a stipulation of settlement and is now asking this court for permission to change her mind. Moreover, unlike a motion to vacate a default judgment, NYCHA does not have any procedures set in place inviting petitioner to present new facts supporting her reasons for filing a motion to vacate a stipulation of settlement she willingly entered into.
Furthermore, when applying the Yarbough Court's analysis distinguishing a motion to vacate a default judgment from a motion to reconsider which does not toll the statute of limitations, not only is petitioner's motion different from a motion to vacate a default, it is akin to a motion to reconsider. As in a motion to reconsider, petitioner is seeking the same relief and advances the same factual and legal issues that were previously litigated. Although petitioner states that she has new evidence in the form of affidavits from petitioner and her son Lloyd Saunders about Lloyd's residence during the years he allegedly lived in petitioner's apartment, she admits in her affidavit that she "tried explaining that Lloyd Saunders had not lived with her in over thirty years" during her settlement discussions with NYCHA's counsel. As petitioner's "new evidence" merely constitutes self-serving affidavits addressing topics she admittedly discussed during settlement discussions, the court finds that petitioner has failed to present questions not previously passed upon by the agency.
Finally, petitioner's argument that she was waiting for NYCHA's decision in the underlying motion to vacate the settlement is without merit as filing an Article 78 action before the expiration of the statute of limitations would have served to preserve petitioner's claim against it. As the court has found that petitioner is time-barred from bringing this petition, the court will not address the underlying claims. The court also denies petitioner's request for costs, disbursements and attorney's fees. It is therefore
ADJUDGED that the petition is denied and the proceeding is dismissed.