Opinion
No. 100089/2015.
03-22-2016
175TH STREET REALTY GROUP LLC, Petitioner, v. Shola OLATOYE, as Chair and CEO of the New York City Housing Authority, the New York City Housing Authority, the City of New York, and Marilyn Medina, Respondents.
Padernacht Law, P.C., Bronx (Daniel Padernacht of counsel), for petitioner. David I. Farber, General Counsel for New York City Housing Authority, New York (Marlowe L. Doman of counsel), for respondents.
Padernacht Law, P.C., Bronx (Daniel Padernacht of counsel), for petitioner.
David I. Farber, General Counsel for New York City Housing Authority, New York (Marlowe L. Doman of counsel), for respondents.
GERALD LEBOVITS, J.
Recitation, as required by CPLR 2219(a), of the papers considered in reviewing respondent's cross-motion to dismiss.
| Papers | Numbered |
|---|---|
| Respondents' Notice of Cross–Motion to Dismiss | 1 |
| Respondents' Affirmation in Support | 2 |
| Respondents' Memorandum of Law in Support | 3 |
| Petitioner's Affirmation in Opposition | 4 |
| Respondents' Reply Affirmation | 5 |
Upon the foregoing papers, it is ordered that respondents' cross-motion to dismiss is granted.
Petitioner, 175th Street Realty Group LLC, commenced this Article 78 proceeding against respondents, Shola Olatoye, as Chair and CEO of the New York City Housing Authority, the New York City Housing Authority (N.Y.CHA), and the City of New York. Petitioner seeks to annul NYCHA's purported determination not to pay petitioner's Section 8 rent subsidy for petitioner's tenant, Marilyn Medina, from April 1, 2013 through May 12, 2014, in the amount of $13,870.45.
Petitioner discontinued the case against Marilyn Medina.
Respondents cross-moved to dismiss, arguing that petitioner did not comply with the notice and pleading provisions of PHL § 157 and that petitioner's claim is time-barred under CPLR 217(1).
The court addresses respondents' statute of limitation argument first because it is dispositive of the case.
Respondents' motion to dismiss is granted because the petition is time-barred. Under CPLR 217(1), an Article 78 proceeding must be commenced within four months after a final determination becomes binding on petitioner. Petitioner was bound by NYCHA's determination to terminate rent subsidies for Medina on April 1, 2013, when petitioner stopped receiving the subsidies. Petitioner therefore had until August 1, 2013, to bring this petition. Petitioner commenced this proceeding on January 16, 2015, a year and five months after the statute of limitations had run. Therefore, this proceeding is time-barred.
Petitioner's argument that the statute of limitations is calculated from September 18, 2014, to the time it commenced this proceeding on January 16, 2015, is unpersuasive. On September 18, 2014, a NYCHA representative informed petitioner it would receive $2925.79 in retroactive rent subsidy payments for Medina, who had been reinstated in the Section 8 housing program. Petitioner argues this was a final determination not to pay the $13,870.45 in retroactive subsidies it seeks for the entire period after Medina was terminated until she was reinstated.
Petitioner does not, however, provide evidence that the purported September 18, 2014, determination rescinded Medina's April 1, 2013, termination as to make it the final binding determination or that NYCHA is obligated to pay the rent subsidies retroactively after a participant is reinstated. Under federal regulations and a landlord's Housing Assistance Payments (HAP) contract, the HAP contract automatically terminates when NYCHA terminates a tenant's subsidies. (See 24 CFR 982.309 [b][2][iii] ). Because petitioner seeks subsidies from the time after NYCHA terminated Medina's housing subsidies on April 1, 2013, the proceeding is time-barred.
The court need not address respondents' second argument—that petitioner did not comply with notice and pleading requirement.
Respondents' cross-motion to dismiss is granted.
This opinion is the court's decision and order.