Opinion
403272/10.
Decided April 19, 2011.
Joann Moorer, Petitioner, pro se.
Sonia M. Kaloyanides, General Counsel to New York City Housing Authority New York, NY, Attorneys for the Respondents.
Petitioner participates in the New York City Department of Housing Preservation and Development (HPD) Housing Voucher Program (Section 8) since 1995. HPD makes "Housing Assistance Payment" to 99 Featherbed Heights, Petitioner's landlord, for the premises she occupies. As a participant in the program petitioner submits to annual re-examinations of family income and composition (See 24 C.F.R. § 982.516). HPD has the authority under 24 C.F.R. § 982.552 to deny admission or terminate assistance to any participant for violating any family obligations under the program, for the commission of fraud or misrepresenting family income or the income of household members.
24 C.F.R. § 982.555 provides that HPD is required to provide a participant family an opportunity for an informal hearing when section 8 assistance has been terminated, and further provides that the termination notice must include a deadline for the family to request an informal hearing, which is within 21 days from the date printed on the notice.
HPD sent petitioner a 2008 Recertification package for petitioner to complete and mail back to HPD no later than July 30, 2008. On or about July 6, 2008 petitioner submitted the 2008 Recertification listing herself, Elijah, Rose, Joseph and Raven Moorer as "family members" and listed Public Assistance as the only household income. Together with the Recertification package she submitted a request to remove Rose Moorer from the family composition.[See Answer Exhibits F G].
On February 27, 2009 HPD Section 8 representative Diana Shields submitted a Section 8 Corruption or Fraud Research Form to the Program Integrity and Compliance (PIC) unit. Ms. Shields learned that Joseph and Raven Moorer were living in the household of Gloria Moorer in a New York City Housing Authority apartment. [see Exhibits H I]. HPD sent Petitioner a "pre-termination notice of section 8" dated March 5, 2009 advising her that "her section 8 rent subsidy may be terminated for having misrepresented [her] household composition in that Joseph and Raven Moorer [were] found in Gloria Moore r's [Household]. The notice warned petitioner that "failure to respond within fifteen(15)calendar days from the date of this notice may result in termination of your section 8 rent subsidy . . ." Accompanying the notice was a "Request for a Conference-Section 8" form. The Pre-termination notice was mailed via Regular and Certified mail, there was no signature on the return receipt [See Answer Exhibit J].
On April 2, 2009 Ms. Shields recommended that Petitioner's section 8 rent subsidy be terminated effective May 1, 2009 for her failure to respond to the Pre-termination notice mailed March 5, 2009. Team Leader Valerie Madera on April 9, 2009 recommended that petitioner's rent subsidy be terminated May 31, 2009 for her non-compliance with the Pre-termination notice [see Answer Exhibit K].
Ms. Shields mailed Petitioner a Section 8 Recertification package that was to be returned on or before April 22, 2009. Petitioner returned the Recertification package which was dated April 21, 2009 and date stamped received by Respondent on April 22, 2009. Petitioner listed Joseph Moorer as a member of the household and requested that Raven Moorer be removed. Together with this Recertification package petitioner submitted a letter from Gloria Moorer dated March 28, 2009 stating that Joseph Moorer lives at 99 Featherbed Lane Apt. 4C [see Answer Exhibit L M].
On April 30, 2009 Ms. Margie Acevedo mailed Petitioner a "Pre-termination notice of Section 8" again advising that her section 8 rent subsidy may be terminated because "Joseph and Raven Moorer are receiving a housing subsidy from New York City Housing Authority." This notice was accompanied by a notice that a hearing must be requested within 15 calendar days from the date of the notice, and was mailed regular and certified mail. There was no signature on the return receipt. [see Answer Exhibit N O]. Ms. Acevedo recommended that Petitioner's rent subsidy be terminated effective June 30, 2009. The Termination committee reviewed her recommendation on May 6, 2009 and made a final determination to terminate the rent subsidy effective June 30, 2009 [see Answer Exhibit Q].
On May 11, 2009 Ms. Mae Pope mailed Petitioner a "Notice of Section 8 Rent Subsidy Termination effectively terminating her subsidy on June 30, 2009. This notice advised Petitioner that her "section 8 rent subsidy will be terminated [because] an adult household member in your unit is receiving assistance from another housing authority." The notice informed her that she has a right to appeal the decision before an impartial HPD staff member, and that she may request an informal hearing by returning an attached form within twenty-one(21) calendar days. Respondent annexed an Affidavit of Service signed by Ms. Pope as proof that the Termination Notice was mailed. There was no affidavit of mailing or of the mailing procedures annexed [see Answer Exhibits R S].
On May 19, 2009 Petitioner requested, in writing, a conference with an HPD staff member to review her section 8 case file, by mailing the request for conference annexed to the April 30, 2009 "Pre-termination" notice. In her request Petitioner stated that she "believes her section 8 subsidy should not be terminated because she Recertified on April 22, 2009 and submitted the required documents. Form of removal for Raven and Employment Form for Joseph and a copy of a cable bill from 4/08 addressed to Joseph." [See Answer Exhibit T]. Respondent did not respond to Petitioner's request for a conference. Her subsidy was terminated and she fell into arrears on her rent. In September 2010 she inquired of Respondent and was told that her section 8 rent subsidy termination remains in effect because she did not request an informal hearing timely. Her request was due by May 21, 2009 but was not received until September 27, 2009. [see Answer Exhibit U].
Petitioner now brings this Article 78 proceeding to annul her section 8 rent subsidy termination and be re-instated to the section 8 rent subsidy. Respondent opposes the petition and argues that it is time barred because Petitioner received notice of termination on May 11, 2009 and should have brought the Article 78 proceeding by September 11, 2009. Respondent also argues that its determination was rational and not arbitrary or capricious or an abuse of discretion.
". . . A proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner. . . ."[C.P.L.R. § 217(1)]. This abbreviated time frame is said to serve public policy by freeing government operations from the "cloud" of potential litigation [Best Payphones, Inc., v. Department of Information, Technology and Communications of City of New York, 5 NY3d 30, 832 N. E. 2d 38, 799 N.Y.S. 2d 182 (2005)]. An administrative determination becomes "final and binding" triggering the four month statute of limitations for commencing an Article 78 proceeding, when the petitioner seeking review has been aggrieved by it. [Rocco v. Kelly, 20 AD3d 364, 799 N.Y.S. 2d 469 [App. Div. 1st. 2005]; Yarbough v. Franco, 95 NY2d 342, 740 N.E. 2d 224, 717 N.Y.S. 2d 79. The four month limitations period for Article 78 review runs from petitioner's receipt of the adverse determination [Yarbough v. Franco, 95 NY2d 342, 740 N.E. 2d 224, 717 N.Y.S. 2d 79 [supra].
Petitioner was mailed a "Pre-termination notice" on March 5, 2009 and April 30, 2009, In between these two she was mailed a Recertification package that needed to be returned no later than April 22, 2009. Petitioner returned the Recertification package by the due date of April 22, 2009. She was mailed a "Termination notice" on May 11, 2009. She responded to the April 30, 2009 "Pre-termination notice" on May 19, 2009 by requesting a conference. This conference was requested after Respondent mailed the May 11, 2009 "Termination notice". Petitioner did not receive any communication from Respondent denying her request for a hearing, or scheduling one. Time passed and in September 2010 when her Landlord took action against her for the non-payment of rent she inquired of Respondent and was told that her section 8 subsidy had been terminated effective June 30, 2009. The first time Petitioner learned that her subsidy had been terminated and that a conference or hearing would not be provided is in September 2010. She filed this Article 78 proceeding on November 22, 2010, well within the four month statute of limitations, therefore it is timely. Furthermore, in as much as it appears that the petition challenges an agency determination that was reached without following proper termination procedures, the petition is timely (Robinson v. Martinez, 308 AD2d 355, 764 N.Y.S. 2d 94 [1st. Dept. 2003]).
Before a participant in the Section 8 rent subsidy program is terminated the agency must comply with the required termination procedures. The agency must mail the participant a "warning letter specifically stating the basis for the termination and if appropriate seeking the participant's compliance. Thereafter if the conditions which led to the preliminary determination have not been remedied, the agency must send a second written notice by regular and certified mail stating the specific grounds for termination and informing the participant that she may request a hearing (and an optional pre-hearing conference). If the participant does not respond to this Notice of Termination the agency is required to mail a Notice of Default advising the participant that the rent subsidy will be terminated and the grounds therefor and affording the participant another opportunity to request a hearing. If the participant takes no action after the Notice of Default letter, the rent subsidy will be terminated on the 45th calendar day following the date of mailing of the notice of default."(Fair v. Finkel 284 AD2d 126, 727 N.Y.S. 2d 401 [1st. Dept. 2001]).
The agency has the burden to establish that the requisite notice of an action or hearing was given. (Lopez v. New York City Housing Authority, 30 Misc 3d 1237(A), 2011 NY Slip Op 50390(U) [NY Supreme Ct. 2011], Quoting 72A Realty Associates v. New York City Envtl . Control Board, 275 AD2d 284 [1st. Dept. 2000]; Matter of Bludson v. Popolizio, 166 AD2d 346 [1st. Dept. 1990]). Respondent does not annex to its Answering papers an affidavit of the mailing procedures to prove that the May 11, 2009 Notice Terminating petitioner's Section 8 rent subsidy was properly mailed. The agency's failure to follow its own termination procedures warrants annulment (see Robinson v. Martinez, 308 AD2d 355, 764 N.Y.S. 2d 94 [1st. Dept. 2003]Supra; Holcomb v. Williams, 72 AD3d 687, 897 N.Y.S. 2d 913 [2nd. Dept. 2010]; Fair v. Finkel, 284 AD2d 126, 727 N.Y.S. 2d 401, Supra).
Petitioner responded to Respondent's request when she submitted her Recertification package on April 22, 2009 addressing the issue of her household composition. Petitioner timely requested an informal conference, but was provided neither a conference or a hearing. A year and four months after having requested the conference, on September 28, 2010, she was informed that her section 8 rent subsidy had been terminated effective June 30, 2009. Respondent cannot terminate petitioner's section 8 rent subsidy without following its own termination procedures which require a hearing or an informal conference if petitioner requests one. Accordingly, petitioner's petition is granted, Respondent's determination is annulled, petitioner is re-instated to the section 8 rent subsidy program and the matter is remanded to Respondent for a hearing as to the merits of the proposed termination of petitioner's section 8 benefits.
Accordingly, it is ORDERED and ADJUDGED that the petition is granted, Respondent's Termination of Petitioner's section 8 rent subsidy effective June 30, 2009 is annulled, and it is further,
ORDERED that Petitioner's section 8 rent subsidy is re-instated, and it is further
ORDERED that Respondent New York City Department of Housing Preservation and Development is hereby DIRECTED to re-instate petitioner to her section 8 rent subsidy retroactive to June 30, 2009 pending its final determination after a hearing and pay any rent subsidy amount that has not been issued, and it is further
ORDERED, that this proceeding is remanded to Respondent New York City Department of Housing Preservation and Development for a hearing.
This constitutes the decision, order and judgment of this court.