Opinion
Index No. 401629/2012
02-25-2013
In the Matter of the Application of STEPHANIE SHAMBLEE, Petitioner, For a Judgment Pursuant to ARTICLE 78 of the Civil Practice Law and Rules v. JOHN B. RHEA, as Chairperson of the New York City Housing Authority and THE NEW YORK CITY HOUSING AUTHORITY and FULTON PARK 4 ASSOCIATES, Respondents.
Decision, Order, and
Judgment
HON. MICHAEL D. STALLMAN , J.:
In this Article 78 proceeding, it is undisputed that petitioner, who had received a Section 8 rent subsidy, did not submit her annual income certification documents, and that respondent New York City Housing Authority terminated petitioner's Section 8 rent subsidy. Petitioner then wrote to the agency, asking it "to give her family a chance," and to "Please inform me & my family what we can do to fix my situation." Petitioner challenges the agency's determination denying petitioner's request.
Respondent Rhea and the New York City Housing Authority (collectively, NYCHA) cross-move to dismiss the Article 78 petition as time-barred. Petitioner opposes the motion. NYCHA argues that petitioner's request was merely a request to restore her subsidy; petitioner argues that the request sought to reopen her default.
BACKGROUND
NYCHA must follow certain procedures to terminate Section 8 assistance, which were established in a First Partial Consent Judgment entered into on October 4, 1984 in Williams v New York City Housing Authority (Case No. 81-CV-1801 [RJW]).
"The First Partial Consent Judgment, signed on October 17, 1984, established procedures by which Section 8 tenants may challenge a NYCHA decision to discontinue or terminate subsidy payments. In the Second Partial Consent Judgment, signed on February 2, 1995, the parties agreed to certification and objection procedures that protect tenants in eviction proceedings where non-payment of rent is related to a termination of Section 8 benefits." (Williams v New York City Hous. Auth., 975 F Supp 317, 319 [SD NY 1997].)
Cases refer to the First Partial Consent Judgment and Second Partial Consent Judgment interchangeably as the Williams decree, or Williams consent decree. (See e.g. Matos v Hernandez, 10 Misc3d 1068 (A) [Sup Ct, NY County 2005]; Townhouse West, LLC v Williams, 19 Misc 3d 847 [Civ Ct, NY County 2008].)
"First, after a preliminary determination that there exists a basis for termination, NYCHA must send 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 within a reasonable time, NYCHA must send a second written notice, the Notice of Termination, by certified and regular mail, stating the specific grounds for termination and informing the participant that he or she may request a hearing (and an optional pre-hearing conference). If the participant does not respond to the Notice of Termination or T-1 letter, NYCHA 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 or(Matter of Fair v Finkel, 284 AD2d 126, 127-28 [1st Dept 2001].) In this case, petitioner apparently received the Notice of Default dated June 9, 2009, i.e., the T-3 Notice, some time in mid-August 2009. (Verified Petition ¶ 6.)
T-3 letter, the rent subsidy will be terminated on the 45th calendar day following the date of mailing of the Notice of Default. If, however, a participant requests a hearing after the 45-day period, the participant's default may be reopened 'upon a showing of good cause.'"
The Notice of Default states that petitioner's subsidy was being terminated because "ANNUAL REVIEW PACKAGE + PROOF OF INCOME NOT RECEIVED." (Verified Petition, Ex B.) The Notice further states,
"You did not request a hearing to tell why your subsidy should not be terminated. THEREFORE, YOUR SECTION 8 SUBSIDY WILL BE TERMINATED FORTY-FIVE (45) DAYS AFTER THE DATE OF THIS LETTER.(Verified Petition, Ex B.) At the bottom of the Notice of Default, there is a section that reads, "Check the box below:
If you believe that your Section 8 benefits should not be terminated, YOU CAN STILL REQUEST A HEARING. If your request is received less than forty-five (45) days after the date of this letter, you will be given a hearing and your Section 8 benefits will be continued until a final determination is made.
If the Authority receives your request forty-five (45) or more days after the date of this letter, you must show 'good cause' in order to challenge the termination. Therefore, please explain below (attaching additional pages if necessary) why you did not respond to the notice of termination. If the hearing officer does not reopen your case and you want to go to court, you must do so within four (4) months of the date of this notice.
After filling it out, return one copy of this form to the address
listed above."
[ ] I would like to contest the termination of my Section 8 rent subsidy"(Id.)
Petitioner claims that she wrote to NYCHA to request that her Section 8 subsidy be reinstated. In support of her contention, she submits copies of three letters addressed "To Whom It May Concern," purportedly written by petitioner, her mother, and her daughter. (Verified Petition, Ex C.) Petitioner's letter and her daughter's letter are undated; her mother's letter is dated September 2, 2009. According to petitioner, she fled to Florida from April 2009 to August 2009 to escape the abusive father of her children. In petitioner's undated letter, she wrote that she had him arrested and orders of protection were issued.
The undated letter states, in pertinent part:
"I Stephanie Shamblee am writing this letter to explain why [I] have missed my recertification package . . .
* * *
Please give me and my family a chance, as a mom I only did what I thought was right at the time for our safety, I came back to find that Sec 8 was terminating my case I knew my lease needed to be resigned and that school is about to begin, please don't make my family move to the
shelter family will take you in temporarily but not preminat [sic], not with my baby daddy drama.
Please inform me & my family what we can do fix my situation." (Id.)Petitioner claims to have five children, the youngest being six years old and severely disabled. (Verified Petition ¶¶ 12, 26.)
In a letter dated September 16, 2009, NYCHA wrote,
+---------------------------------------------------+ ¦"Stephanie Shamblee ¦ ¦ ¦ ¦V# 0240255AA¦ ¦[mailing address omitted by the Court]¦ ¦ +---------------------------------------------------+
Dear Ms. Reed:
We are in receipt of your letter requesting restoration of the Section 8 Program.(Verified Petition, Ex A.)
Unfortunately, your request has been denied.
I regret that the Leased Housing Department cannot provide you further assistance at this time."
Although the letter was mailed to petitioner, and bore her name and mailing address and bore petitioner's tenant number, V#0240255AA (see Verified Petition, Ex B), petitioner claims that she believed the letter was not intended for her, because the salutation of the letter was "Dear Ms. Reed," not "Dear Ms. Shamblee." Petitioner also received rent bills from her landlord for the months of August, October, November 2009 and January, February, March and April 2010 reflecting a Section 8 subsidy, even after the date on which petitioner's Section 8 subsidy should have been terminated. (Verified Petition, Ex D.) NYCHA claims that it issued its last subsidy payment to petitioner's landlord on June 22, 2009 for July 2009. (Lupin Affirm., at 12 n 2.)
Petitioner commenced this Article 78 petition on July 20, 2012. On November 8, 2012, petitioner brought an order to show cause seeking an order staying the landlord "from taking any action to enforce the judgment of possession obtained by such Respondent in the case of Fulton Park 4 Associates v Shamblee, L&T 53789/12, Kings County, including but not limited to, executing any warrant of eviction obtained therein or causing the execution of a warrant of eviction obtained therein by a New York City Marshal." The order to show cause also contained a temporary restraining order, which Justice Kornreich granted. The temporary restraining order provided that "pending the hearing of this motion, all actions by Respondent, FULTON PARK 4 ASSOCIATES . . . to enforce the judgment or execute on the warrant of eviction in the landlord tenant proceeding entitled Fulton Park 4 Associates v Shamblee, L&T 53789/12 are stayed."
By a decision and order dated November 15, 2012, this Court granted petitioner's order to show cause upon the parties' consent, as per a stipulation dated November 15, 2012. The November 15, 2012 decision and order states, "The stay contained in the 11/8/12 order to show cause is continued pending determination of the underlying proceeding (Seq. 01), conditioned on timely continued payment of the tenant's share of rent as U+O [use and occupancy]."
I.
"On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. In considering the motion, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff. Further, plaintiff's submissions in response to the motion must be given their most favorable intendment."(Benn v Benn, 82 AD3d 548, 548 [1st Dept 2011] [internal citations and quotation marks omitted].)
NYCHA argues that the limitations period began to run in August 2009, when petitioner allegedly received the Notice of Default dated June 9, 2009. (Lupin Affirm. ¶ 16.) NYCHA argues that petitioner "cannot circumvent the four-month statute of limitations by submitting requests for reconsideration of the Housing Authority's determination." (Id. ¶ 19.) NYCHA further contends that, "[n]o matter what date is used to measure the statute of limitations, Petitioner's commencement of this proceeding in July 2012 is untimely." (Id. ¶ 18.) In opposition, petitioner argues that the four month limitation period has yet to run.
"An administrative determination becomes 'final and binding' when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies. 'First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be ... significantly ameliorated by further administrative action or by steps available to the complaining party.'"(Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194-195 [2007].) "An administrative determination becomes 'final and binding' when the petitioner seeking review has been aggrieved by it." (Matter of Yarbough v Franco, 95 NY2d 342, 346 [2000][citations omitted].)
As NYCHA indicates, paragraph 22 (f) of the First Partial Consent Judgment expressly provides,
"for the purposes of Section 217 and Article 78 of the Civil Practice Law and Rules, the determination to terminate a subsidy shall, in all cases, become final and binding upon the receipt of the Notice of Determination pursuant to paragraph '22 (a)' hereinabove, or the Notice of Default, pursuant to paragraph '3(e)' above, except that where a default is reopened, the statute of limitations shall begin to run upon receipt of the Notice of Determination following the completion of such reopened proceeding or where members of the Authority review a determination pursuant to paragraph 21 the statute of limitations shall begin to run upon receipt of the notice of the results of such review."(Lupin Reply Affirm., Ex A [NYCHA's emphasis].)
Paragraphs 22 (d) and (e) of the First Partial Consent Judgment set forth procedures for when a Section 8 participant seeks to "reopen a default." They state, in relevant part:
"(d) where the determination to terminate the subsidy results from the default of the participant in appearing at the hearing or the participant has been served with a Notice of Default for failure to request a hearing, the participant shall obtain such a hearing upon submission of a written request for the reopening of such default, directed to the Authority . . . , if such request is received prior to the forty-fifth day following the mailing of the Notice of Determination or Notice of Default. . .(Id. [emphasis supplied].)
(e) in situations where a default may not be reopened pursuant to paragraphs 13 or 22 (d), the hearing officer shall nevertheless reopen the default upon a showing of good cause but shall not restore the subsidy pending the final determination."
When a default is reopened, paragraph 22 (f) of the First Partial Consent Judgment specifies that the statute of limitations shall run "upon receipt of the Notice of Determination following the completion of such reopened proceeding. . ." However, there is no corresponding provision for when a default is not reopened.
In judicial parlance, a default is vacated, or a matter that was decided on default is reopened. However, the Court will employ the expression "reopen a default" in this decision, because that expression is used in the First Partial Consent Judgment.
NYCHA argues that the statute of limitations should run from the date of the receipt of the Notice of Default, i.e., the T-3 Notice/T-3 Letter, because paragraph 22 (f) of the First Partial Consent Judgment provides that the Notice of Default is final and binding "in all cases" upon the receipt of the Notice of Default.
Citing Yarbough, petitioner argues that this Court should reject NYCHA's argument that the limitations period started to run in August 2009, when petitioner claimed to have received NYCHA's Notice of Default dated June 9, 2009.
II.
In Yarbough, NYCHA sought to terminate the petitioner's tenancy on charges that the petitioner violated NYCHA's rules by permitting unauthorized family members to reside with her. When the petitioner did not appear at a scheduled hearing, the Hearing Officer entered a default determination and sustained the charges. Although the determination was entered on December 3, 1996, NYCHA did not serve notice of the determination until about four months later. One day after the petitioner received the notice, she filed a request to vacate her default. NYCHA denied the request as untimely. The petitioner then commenced an Article 78 proceeding, which NYCHA argued was time-barred.
The Court of Appeals held that "that the limitations period begins to run from receipt of the denial of the request to vacate the default." (Id. at 345.) The Court of Appeals explained,
"We reject the Authority's argument that a motion to vacate a default is nothing more than a motion to reconsider, which does not toll the Statute of Limitations. A motion to reconsider generally seeks the same relief, and advances factual and legal issues that were previously litigated at the administrative level. For that reason, it cannot be used to(Id. at 347 [citations omitted].) The Court of Appeals therefore affirmed the order of the Appellate Division, Second Department, which remitted the matter to the NYCHA for a hearing on the merits of the petitioner's application to vacate her default,
extend the Statute of Limitations.
In contrast, a motion to vacate a default presents factual questions not previously passed upon by the administrative agency. By seeking to vacate the default, petitioner was simply availing herself of the Authority's own invitation under its procedures to present new facts supporting her reasons for the default and to proffer a meritorious defense. Because petitioner's application to vacate the default created a 'fresh situation,' it cannot be considered a motion to reconsider a prior determination."
III.
NYCHA sets forth several arguments that the holding in Yarbough, that the statute of limitations runs from the receipt of NYCHA's denial to vacate the default, is inapplicable here.
The parties disagree as to how petitioner's undated letter to NYCHA should be viewed. Petitioner urges that it should be deemed "an application to vacate the determination rendered on her default" (Mem. at 11), like the petitioner's request to vacate the Hearing Officer's default determination in Yarbough. NYCHA argues that petitioner's undated letter was nothing more than a plea for reinstatement of petitioner's Section 8 subsidy at the agency's discretion, which does not toll the limitations period to challenge the original determination. (Matter of Nieves v Martinez, 285 AD2d 410, 411 [1st Dept 2001].)
Of course, it goes without saying that "[NYCHA] cannot read minds. . ." (Lupin Reply Affirm. ¶ 6.), and nothing in the record indicates that petitioner checked off the box at the bottom of the Notice of Default which states, "I would like to contest the termination of my Section 8 rent subsidy." (Verified Petition, Ex B.) However, the Court disagrees with NYCHA that it could not have reasonably understood that petitioner's undated letter also impliedly requested NYCHA to reopen her default, pursuant to paragraph 22 (e) of the First Partial Consent Judgment. NYCHA knew that petitioner had not responded to either the warning letter or the T-1 Notice. Under the First Partial Consent Judgment, reopening one's default (i.e., the failure to respond to the warning notice or Notice of Termination/T-1 Notice) is the only remaining option for a Section 8 participant to challenge the termination of the Section 8 subsidy, once the participant has received the Notice of Default.
Based on the undated letter, petitioner apparently knew that her Section 8 subsidy was being terminated because she "missed [her] recertification package." More than 45 days had passed since the Notice of Default dated June 9, 2009 was sent to petitioner. Petitioner offered an explanation why she failed to respond, and she wanted "to fix the situation." (Verified Petition, Ex C.) The amount of information contained in the undated letter was a preview of the testimony that petitioner would have offered at a hearing to contest the termination of her Section 8 subsidy. The fact that petitioner's undated letter did not explicitly request a hearing does not mean that the letter could not reasonably be construed as a request to reopen her default, as provided in paragraph 22 (e) of the First Partial Consent Judgment.
NYCHA points out that, unlike Yarbough, no hearing was ever scheduled in this case. However, the First Partial Consent Judgment states that the "Notice of Default shall have the same force and effect as a determination after a hearing to terminate the subsidy, and the procedures for vacating such default shall be set forth in paragraph '22' of this procedure." (See Lupin Reply Affirm., Ex A.) Because the T-3 Notice has the same force and effect as a determination after a hearing to terminate the subsidy, petitioner in this case is in a similar situation as the petitioner in Yarbough, whose tenancy was terminated following a hearing.
Therefore, petitioner's undated letter should be considered as a request to reopen her default, similar to the petitioner's request to vacate the Hearing Officer's default determination in Yarbough.
Next, NYCHA argues that the holding in Yarbough is inapplicable because Yarbough did not involve the termination of a Section 8 subsidy. NYCHA asserts that applying Yarbough here would "nullify the explicit terms of a federal consent decree." (Lupin Reply Affirm. ¶ 6.) NYCHA stresses that, pursuant to paragraph 22 (f) of the First Partial Consent Judgment, "the determination to terminate a subsidy, shall, in all cases, become final and binding upon the receipt of . . . [the T-3] Notice of Default." (Id. [NYCHA's emphasis].) NYCHA argues that "it would make no sense for the parties to have included this provision in the Williams consent judgment if any correspondence from a terminated participant to the Housing Authority could toll the statute of limitations." (Lupin Reply Affirm, at 2 n 1.) NYCHA claims, "if the T-3 Notice were not a final and binding determination, a terminated participant with no incentive to challenge the termination of her subsidy theoretically could wait years before requesting to reopen the 'default,' thereby effectively tolling the statute of limitations indefinitely." (Lupin Reply Affirm. ¶ 7.)
NYCHA incorrectly frames the issue as whether the four-month statute of limitations is tolled. Petitioner is not arguing that the limitations period ceased to run or was suspended due to some event or circumstance. Rather, the issue is whether NYCHA's denial of petitioner's request to reopen her default was final and binding as of the date on which petitioner received the T-3 Notice, or as of the date on which petitioner received NYCHA's denial.
An administrative determination becomes "final and binding" when, in addition to meeting the requirement of finality, "the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party." (Walton, 8 NY3d at 194-195.) In a situation where NYCHA's determination to terminate Section 8 assistance was made on default, the First Partial Consent Judgment established an administrative procedure for the Section 8 participant to reopen the default as of right, pursuant to paragraph 22 (d), or upon good cause shown, pursuant to paragraph 22 (e). One could argue that any determination to terminate a Section 8 subsidy granted on default would therefore not be final and binding, because a Section 8 participant would have yet to exhaust the administrative remedy of reopening the default.
Paragraph 22 (f) of the First Partial Consent Judgment was possibly intended to counter such an argument. It states that "the determination to terminate a subsidy, shall, in all cases, become final and binding upon the receipt of . . . [the T-3] Notice of Default." (Lupin Reply Affirm., Ex A.) The language "in all cases" appears to cover situations where the determination to terminate a subsidy was made upon the default of the Section 8 participant, i.e., either the Section 8 participant fails to respond to the warning letter or T-1 Notice, or fails to appear at a scheduled hearing requested by the Section 8 participant. Thus, one could argue that, by virtue of paragraph 22 (f), it cannot be said that the Notice of Default was not final and binding because of the existence of an administrative remedy to ameliorate the determination.
However, applying this reasoning to a request to reopen the default as of right, pursuant to paragraph 22 (d), or upon good cause shown, pursuant to paragraph 22 (e), could create absurd results. Conceptually speaking, to say that the date of the receipt of a T-3 Notice/Notice of Default is finding and binding "in all cases" would mean that NYCHA's decision denying petitioner's request to reopen the default became final and binding before it was ever issued, and before it was ever received by petitioner.
The T-3 Notice states, in pertinent part,
"If the Authority receives your request forty-five (45) or more days after the date of this letter, you must show 'good cause' in order to challenge the termination... If the hearing officer does not reopen your case and you want to go to court, you must do so within four (4) months of the date of this notice."(Verified Petition, Ex B.) The T-3 Notice itself did not clearly inform the Section 8 participant that the Article 78 petition must be brought within the four months of the T-3 Notice, even if the request to reopen the default is still pending before the hearing officer. To preserve a remedy, the participant would be required to commence an Article 78 petition before knowing whether NYCHA would grant the request to reopen the default.
Assume, for the sake of argument, that a Section 8 participant must apply to NYCHA to reopen her default within four months of receipt of the T-3 Notice, because receipt of the T-3 Notice was final and binding "in all cases." There could still be absurd results. It would be possible that a Section 8 participant could submit a request to reopen her default 46 days after receiving the T-3 Notice, one day past the deadline to request a hearing as of right under paragraph 22 (d) of the First Partial Consent Judgment, but within fourth months of receipt of the T-3 Notice. However, it is also possible that the hearing officer would not be able to render a decision denying the request within the four months after receipt of the T-3 Notice. In this example, if the statute of limitations to challenge the Hearing Officer's determination to reopen a default for good cause were to run from the date of the receipt of T-3 Notice, then an Article 78 petition challenging the Hearing Officer's determination would already be time-barred, even before the challenged determination itself came into being. This would be an unjust outcome, because the Section 8 participant is left without a remedy.
In Yarbough, the petitioner received notice of NYCHA's determination on April 7, 1997 (almost four months from the date of her default), and the petitioner filed a request to vacate the default the next day. (Yarbough, 95 NY3d at 346.) NYCHA responded to the petitioner's request more than three months later. (Id.)
Because petitioner requested that her default be reopened and because Yarbough holds that a request to vacate a default is not the same as a request to reconsider a determination, the statute of limitations challenging the denial should not run from the date of the receipt of the T-3 Notice/Notice of Default. To hold otherwise would create a situation where a Section 8 participant would be effectively time-barred from seeking judicial review of NYCHA's denial of a request to reopen a default, even before that denial was ever made. Therefore, the Court is persuaded that the date of accrual fixed under Yarbough to a request to vacate a default applies here to petitioner's request to reopen her default.
That is not to say that this Court is ruling that the T-3 Notice was not final and binding upon petitioner, for the purpose of bringing an Article 78 challenging NYCHA's decision to terminate the Section 8 subsidy. NYCHA's decision to terminate the Section 8 subsidy is separate and distinct from its subsequent decision not to reopen petitioner's default. Neither is the Court ruling that the T-3 Notice was rendered non-final or not binding upon petitioner when she requested NYCHA to reopen her default. Rather, NYCHA's denial of petitioner's request to reopen her default could not have been final and binding before it was ever issued; it became final and binding upon petitioner's receipt of that decision, and not upon receipt of the earlier decision that terminated petitioner's Section 8 subsidy.
The Court recognizes that its decision to apply Yarbough to this case might create unintended consequences. The Section 8 participant who would be likely to lose a challenge to the termination of her Section 8 subsidy has an incentive to postpone the hearing as to whether the Section 8 subsidy should be terminated. That Section 8 participant has less incentive to request a hearing or to appear at a hearing, when a request to reopen one's default is still viable. A Section 8 participant who fails to request a hearing or fails to appear at her hearing could fare better than a Section 8 subsidy participant who does appear at the hearing, if both participants were likely to lose at a hearing. The former would have a longer period of time to challenge the determination terminating the Section 8 subsidy than the latter, simply because the latter does not have the additional option of requesting NYCHA to reopen a default.
It would appear that NYCHA's real concern is that, by applying Yarbough here, petitioner would, in effect, be permitted to commence an Article 78 proceeding to challenge, albeit indirectly, the termination of a Section 8 subsidy more than four months after the receipt of the Notice of Default. If NYCHA's denial of petitioner's request to reopen her default is annulled, then petitioner would be entitled to a hearing, which could ultimately result in her Section 8 subsidy being reinstated.
However, the possibility of belated requests to reopen a default exists because the First Partial Consent Judgment in Williams did not set a deadline for such requests, and did not set a deadline for the hearing officer to decide such requests. It is apparent that NYCHA is attempting to add, in effect, a rigid deadline to the First Partial Consent Judgment by interpreting "in all cases" in a broad manner, so as to graft the four-month limitations period of Article 78 proceedings onto the time in which a Section 8 participant must apply to NYCHA to reopen her default. For the reasons discussed above, this broad interpretation creates situations where a Section 8 participant would be unjustly left without a remedy to challenge NYCHA's denial of a request to reopen a default.
NYCHA's concerns about possible dilatory applications were raised and rejected in Yarbough. The Court of Appeals recognized NYCHA's "policy favoring swift prosecution of administrative determinations." (Id. at 348.) The Court of Appeals also acknowledged that, in some situations, an application to vacate the default could present a risk of circumventing the four-month statute of limitations and "undermining the strong policy favoring efficiency and repose." (Id.) In Yarbough, the Court of Appeals ruled that its decision to fix the accrual date from the date of NYCHA's denial of the petitioner's request to vacate her default did not present such a risk.
NYCHA's reliance upon Lopez v New York City Housing Authority (30 Misc 3d 1237 [A], rev'd 93AD3d 448 [1st Dept 2012]) is misplaced. There, the petitioner commenced an Article 78 proceeding challenging the termination of her Section 8 subsidy. NYCHA had terminated Lopez's Section 8 subsidy on the grounds that she had failed to comply with re-certification procedures to determine her eligibility for continuation in the Section 8 program, and that she had failed to respond to either the T-l or the T-3 Notices. (Lopez, 30 Misc 3d 1237 [A]). In its answer, NYCHA asserted that the petition was time-barred, because the Article 78 proceeding was commenced more than four months after the petitioner was presumed to have received the Notice of Default/T-3 Notice.
The petitioner in Lopez alleged that she had '"ample proof and witness to lies and deception,'" but the petitioner submitted only a letter from NYCHA recounting the details of the mailing of the T-1 and T-3 notices to her. (Lopez, 30 Misc 3d 1237 [A]). According to the petitioner, she went '"numerous times with a friend and was told it[']s being reviewed' (an apparent reference to her request to be restored to the Section 8 program)." (Id.)
The Supreme Court granted the petition, stating, "Since the record reflects that NYCHA mailed only two of the three required notices, the termination of petitioner's Section 8 subsidy was in violation of lawful procedure." (Id.)The Supreme Court rejected NYCHA's argument that the petition was time-barred, reasoning, "Since the notice was defective, the statute of limitations did not begin to run." (Id.)On appeal, the Appellate Division, First Department reversed the decision and dismissed the petition as time-barred. Thus, it is clear that, under Lopez, a Section 8 participant who wishes to challenge the termination of a Section 8 subsidy due to NYCHA's purported failure to comply with service of either the warning letter or the T-1 Notice must do so within four months of receipt of the Notice of Default/T-3 Notice, or else the Article 78 petition is time-barred.
Lopez is inapposite because it did not involve a request to reopen a default. The Supreme Court indicated in its decision that the petitioner had requested to be restored to the Section 8 program, not to reopen her default. (Lopez, 30 Misc 3d 1237 [A].) This is the key difference between Lopez and this case.
Therefore, the Court agrees with petitioner that the date of accrual fixed under Yarbough to a request to vacate a default applies here to petitioner's request to reopen her default. Accordingly, the four month limitations period to challenge NYCHA's denial of a request to reopen a default, which was made pursuant to paragraph 22 (e) of the First Partial Consent Judgment, started to run from petitioner's receipt of NYCHA's denial, not from the date of receipt of the T-3 Notice. (Yarbough, 95NY3d at 345.)
IV.
Petitioner does not deny receipt of the letter dated September 16, 2009. However, petitioner cleverly argues that the letter should not be considered "final and binding" upon petitioner because of the salutation "Dear Ms. Reed," which petitioner contends created an ambiguity which should be construed against NYCHA.
Petitioner cites Matter of Biondo v New York State Bd. of Parole (60 NY2d 832, 834 [1983] [internal citations omitted]), which states:
"[F]or the purposes of the commencement of the statutory period, the petitioner cannot be said to be aggrieved by the mere issuance of a determination when the agency itself has created an ambiguity as to whether or not the determination was intended to be final. A similar principle should apply when the petitioner has received no notice, ambiguous or otherwise, of the determination by which he is said to be aggrieved. Indeed, fundamental fairness would seem to compel the conclusion that a petitioner should not be held to have been dilatory in challenging a determination of which he was not aware."As petitioner indicates, "[i]f an agency has created ambiguity or uncertainty as to whether a final and binding decision has been issued, 'the courts should resolve any ambiguity created by the public body against it in order to reach a determination on the merits and not deny a party his day in court.'" (Matter of Carter v State of N.Y., Exec. Dept., Div. of Parole, 95 NY2d 267, 270-271 [2000] [citations omitted].)
NYCHA argues that the error was a minor, typographical error, and that petitioner should have followed up with NYCHA for clarification if she was confused about the letter. Moreover, NYCHA argues that NYCHA should not be "held accountable" for the landlord's alleged failure to readjust petitioner's rent statements after NYCHA ceased making subsidy payments in June 2009. In any event, NYCHA cites 90-92 Wadsworth Avenue Tenants Association v City of New York Department of Housing Preservation & Development (227 AD2d 331 [1st Dept 1996]), which ruled, "In circumstances where a party would expect to receive notification of a determination, but has not, the Statute of Limitations begins to run when the party knows, or should have known, that it was aggrieved by the determination."
In its moving papers, NYCHA did not indicate when petitioner knew or should have known that she was aggrieved by NYCHA's denial of her request to reopen her default.
To the extent that NYCHA might be alluding to a holdover proceeding brought against petitioner in January 2012, and that a predicate notice to terminate stated, "Your Section 8 rent subsidy from the New York City Housing Authority [NYCHA] was terminated by NYCHA effective April 1, 2010 as a result of your failure to complete your income recertification" (Ginsberg Opp. Affirm., Ex 3), those contentions were not specifically raised in the moving papers.
The cases quoted by petitioner contain language that appears favorable to her, but the cases themselves did not involve the kind of "typographical" error that occurred in this case. In Matter of Biondo, the petitioner, a former inmate at a correction facility, claimed that he did not receive notice of the decision of the Board of Parole Appeals Unit dismissing the petitioner's appeal. (Matter of Biondo, 60 NY2d at 834.) There was no ambiguous notice involved in Matter of Biondo. In Matter of Carter, the petitioner unsuccessfully argued that a handwritten note on the decision of the Parole Board's appeals unit rendered it ambiguous as to its finality, because the note read, "Given length of hold, schedule for full Parole Board review." The Court of Appeals rejected this argument because the regulations which governed the procedure of full Parole Board review stated that "this review--known as Delinquent Time Case Review--is 'not a substitute for an administrative appeal' . . ." (Matter of Carter, 95 NY2d at 271.)
In Matter of Castaways Motel v Schuyler (24NY 2d 120 [1969]), and Mundy v Nassau County Civil Service Commission (44 NY2d 352 [1978]), the Court of Appeals found ambiguity and construed it against the agencies because the agencies' own acts appeared inconsistent and contradictory, not because of errors or mistakes in the notices or determinations themselves.
In Matter of Castaways Motel, the petitioner brought an Article 78 proceeding seeking to compel the respondent, the Commissioner of General Services of the State of New York, to issue a patent for a land grant under water to the petitioner, free of a covenant that the New York State Power Authority sought to impose as condition of granting the patent. The respondent argued that the four-month statute of limitations should have run from a letter the petitioner received on October 20, 1966, issued from the Office of General Services, which requested the petitioner to execute a covenant requested by the New York State Power Authority. The Court of Appeals found that the October 20th letter was ambiguous on the issue of whether the covenant was a prerequisite for respondent's patent. The Court of Appeals stated, "The letter is certainly ambiguous on the point. It speaks of the 'covenant requested' by the Authority and refers to the 'patent that we are issuing' to petitioner. If there was anything final in the letter, it was that the patent was being granted." (Castaways Motel, 24 NY at 126.)
In Mundy, the Nassau County Civil Service Commission certified an eligible list for permanent employment with the Nassau County Probation Department on January 7, 1975. Due to unrelated litigation, the Executive Director of the Nassau County Civil Service Commission formally withdrew certification of the list and notified all eligibles that "certification of the names from the list will be withdrawn and held in abeyance until a final determination is made by the court." (Mundy, 44 NY2d at 356-357.) Six months later, the Nassau County Civil Service Commission recertified the list. The Court of Appeals ruled that the four-month statute of limitations did not run from the date that the list had been first certified, because the Nassau County Civil Service Commission "created the ambiguity and impression of nonfinality" when it withdrew the list. (Id. at 358.)
In each of these cited cases, the ambiguity construed against the agencies did not involve the kind of error here. Petitioner does not point to any inconsistency in NYCHA's statements or acts as would call into question the final nature of its determination. As NYCHA indicates, the fact that petitioner's landlord continued to reflect a credit for a Section 8 subsidy in rent bills is not an ambiguity attributable to NYCHA. Moreover, Matter of Carter illustrates that any confusion of a lay person (i.e., a former inmate) about the notations on a notice does not render the notice ambiguous.
To apply Matter of Biondo and Matter of Carter and the other cases cited by petitioner to the error in this proceeding— an error in the salutation of the letter— would raise the very concerns acknowledged in Yarbough—that is, the possibility of dilatory applications and a very real risk of circumventing the four-month statute of limitations, which would have run from the receipt of the decision denying petitioner's request to reopen her default. Indeed, the instant Article 78 petition was commenced close to three years after NYCHA denied petitioner's request.
Moreover, there is an inconsistency in petitioner's approach. On the one hand, petitioner is maintaining that the letter dated September 16, 2009 was not intended for her, i.e., that the letter was NYCHA's denial of another person's request for the purpose of determining whether the limitations period has run. On the other hand, petitioner is maintaining that, on the merits, this letter is NYCHA's determination that denied her request. Petitioner is attempting to have it both ways.
Therefore, NYCHA's letter dated September 16, 2009 was final and binding upon petitioner upon her receipt of the letter, notwithstanding the error in the salutation of the letter.
CONCLUSION
In sum, the four month statute of limitations for this Article 78 proceeding began to run from the date of petitioner's receipt of NYCHA's letter dated September 16, 2009. Because it is undisputed that petitioner received this letter in September 2009 (Verified Petition ¶ 8), and it is undisputed that this Article 78 proceeding was commenced on July 20, 2012, the Article 78 petition is time-barred.
Accordingly it is hereby ORDERED that this motion by respondents John B. Rhea, as Chairperson of the New York City Housing Authority and The New York City Housing Authority to dismiss the Article 78 petition as time-barred is granted; and it is further
ORDERED and ADJUDGED that the petition and proceeding are dismissed. Dated: February 20, 2013
New York, New York
ENTER:
________________________
J.S.C.
UNFILED JUDGMENT
This judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room 141B).