Opinion
86/15
06-25-2015
In the Matter of an Application of 195-24 LLC, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. Vicki Been, Commissioner, City of New York, Department of Housing Preservation and Development, Respondent, and Yvonne Smith, Respondents.
Petitioner 195-24 LLC commenced the instant Article 78 seeking to challenge the decision of respondent HPD to suspend petitioner's Section 8 subsidies for the tenant, respondent Yvonne Smith, and for a writ of mandamus to compel respondent HPD to pay petitioner the unpaid Section 8 rent subsides. Respondents cross-move for an order dismissing the petition on the ground that it is time-barred.
Petitioner is the owner of a building located at 195-30 Jamaica Avenue, New York. At the time petitioner purchased said building on November 30, 2010, a residential multiple dwelling, Yvonne Smith was the tenant in Apartment A-9, pursuant to a written lease, and held Section 8 vouchers pursuant to Section 8 of the United States Housing Act of 1937, which was administered by HPD.
The requirements for the Section 8 program are set forth in the regulations promulgated by the United States Department of Housing and Urban Development (HUD) and codified at 24 CFR 982. Pursuant to 24 C.F.R. §§ 982.305(a)(2), (b)(1)(i) and 982.405(a), HPD is required to inspect all apartments before commencing Section 8 assistance, and at least annually thereafter, to ensure that they meet Housing Quality Standards (HQS) established by HUD. Further, HPD "must not make any housing assistance payments for a dwelling unit that fails to meet the HQS, unless the owner corrects the defect within the period specified by [HPD and [HPD] verifies the correction." (24 CFR § 982.404[a][3]). Pursuant to 24 CFR § 982.404, HPD must afford petitioner at least 30 days to correct any non-life threatening HQS violation unless HPD extends the deadline.
On December 26, 2013, HPD conducted its annual inspection and determined that the HSQ inspection of the public areas of the subject building resulted in one or more failures. HPD sent notices to petitioner which advised petitioner that HPD would suspend the Section 8 subsidy for Ms. Smith's apartment, unless the HQS violations listed were corrected. Specifically, the first notice stated that the failure consisted of "NO ACCESS TO BASEMENT AT CELLAR (NON-EMERGENCY HQS CONDITION)"; that the this non-emergency HSQ failure must be corrected and certified by the owner by January 20, 2014; that owners of units already receiving subsidy would have Housing Assistance Payments (HAP) suspended if corrections were not completed and certified by the correction date. The second notice stated that the failure consisted of "§ 27-2005 ADM CODE PROVIDE SECURITY IN THE EVENT OF A POWER OUTAGE BY MEANS OF AN ACCEPTABLE MECHANICAL LOCK & LATCH SET AT BUILDING ENTRANCE, 1ST STORY", and required that this HMC [Housing Maintenance Code] violation be corrected by February 3, 2014 and certified as corrected by February 17, 2014.
HPD, in a notice dated February 25, 2014, informed petitioner that the HAP abatement was effective February 1, 2014, based upon a failure to correct the violations, and that "[i]n order to reinstate HAP you must certify the correction of all open HSQ failure items for the above referenced unit.
Petitioner filed a notice of claim on July 23, 2104, in which it sought an adjustment of the HAP payment. Petitioner asserted that the basement access violation and front door security violation were wrongfully issued; that certificates of correction had been submitted prior to the deadlines; that the front door was reinspected on May 23, 2014 and was found to be in compliance, and that the basement violation was closed on May 23, 2014.
In a letter dated November 7, 2014, the Office of the Comptroller, denied petitioner's notice of claim, stating that pursuant to federal regulations and HPD's Administrative Plan prohibited HPD from making subsidy payments for the period that the subject apartment was in HSQ failure. With respect to retroactive payments issued after the certification of complete repairs was submitted, the following would be posted on the October register: "recoupment for the months of February and March 2014, prorated HAP for the month of July (July 21 to July 31, 2014), full HAP for the month of August and September of 2014, and regular HAP for the month of October 2014. On November's register HPD paid full HAP for the month of June 2014, the remaining balance of HAP for the month of July (July1 to July 20, 2014) and the prorated HAP for the month of May (May 25 to May 31)."
Petitioner commenced the within Article 78 proceeding on January 5, 2015. The court notes that the petition fails to state that petitioner corrected the violations, submitted a certificate of correction, that the premises were reinspected on May 23, 2014, and that the HAP payments were reinstated, effective May 25, 2014. Petitioner seeks a judgment vacating respondent's determination to suspend the HAP subsidies and directing respondent to pay the suspended amount of $3,408.75. Petitioner argues that the violations at issue were not violations of the Housing Quality Standards or the Acceptability Criteria Variations of the Housing Maintenance Code included in the HUD approved NYC Administrative Plan, and therefore the suspension of payments was without or in excess of HPD's jurisdiction.
Respondent, in a pre-answer cross motion seeks to dismiss the petition on the grounds of statute of limitations, pursuant to CPLR 217, 3211(a)(5) and 7804(f).
At the outset, as the petition is properly before the court at this juncture, respondent's failure to attach a copy of the petition does not render the within cross-motion procedurally defective. Petitioner's opposition to the cross motion, submitted by its counsel, is neither an affirmation, an affidavit, or a memorandum of law, and therefore is not in proper form.
The four month statute of limitations in which to commence an Article 78 proceeding to challenge an administrative determination is measured from the date the determination becomes final and binding upon the petitioner (Yarbough v Franco, 95 NY2d 342 [2006]; CPLR 217). Agency action is "final and binding upon a petitioner" when the agency has reached a definitive position on the issue that inflicts actual, concrete injury and when the injury inflicted may not be prevented or significantly ameliorated by further administrative action or steps available to the complaining party (see; Best Payphones, Inc. v Dep't of Info. Tech. & Telecomms., 5 NY3d 30 [2005]; Matter of Edmead v McGuire [1986]). The statute of limitations begins to run when the aggrieved party receives notice of the determination (see Matter of Biondo v New York State Bd. of Parole, 60NY2d 832 [1983]).
Here, it is undisputed that petitioner was not paid HAP subsidies for the subject apartment from February 1, 2014 through May 24, 2015, and petitioner was notified of the HAP abatement in the notice dated February 25, 2014. Petitioner does not claim that it did not receive said notice. Therefore, petitioner's time to commence an Article 78 proceeding challenging HPD's determination expired in June 2014, four months after HPD notified petitioner that it had suspended the HAP subsidy (see DDEH 291 Pleasant, LLC v Reinsert, 2009 NY Slip Op 32790(U), 2009 NY Misc Lexis 5445 [Sup Ct, New York County 2009]; Matter of 12th & 14th Street Inv., LLC v New York City Hous. Auth., 2013 NY Misc Lexis 1436 [2013]) .
Petitioner's assertion that it did not have an administrative remedy, and thus the period of limitations should run from the time the notice of claim was denied, is without merit. Petitioner cannot evade the provisions of CPLR Article 78, including its statute of limitations, by re-casting its lawsuit as a proceeding for judicial review of the denial of the notice of claim, rather than as a challenge to HPD's administrative determination suspending the HPD subsidy. Petitioner's filing of a notice of claim was at best a plea for reconsideration, which neither tolled the statute of limitations nor began anew the time within which review could be sought (see Community Counseling & Mediation Servs. v New York City Dept. of Health & Mental Hygiene, 45 AD3d 315 [1st Dept 2007]; Miller v McGough, 97 AD2d 416 [2d Dept 1983]; see also Matter of Herbert v City of New York, 2009 Misc Lexis 4466 [Sup Ct, New York County 2009] ).
Accordingly, respondent's cross-motion to dismiss the petition is granted.
Dated: Long Island City, NY
June 25, 2015
______________________________
ROBERT J. McDONALD
J.S.C.