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In Re Shirley Saunders, Petitioner-Appellant v. John B. Rhea

February 28, 2012


Matter of Matter of Saunders v Rhea

Decided on February 28, 2012

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Sweeny, Moskowitz, Manzanet-Daniels, JJ.

Judgment, Supreme Court, New York County (Cynthia S. Kern, J.), entered on or about April 29, 2011, denying the petition seeking, inter alia, to annul the determination by defendant New York City Housing Authority (NYCHA) to terminate petitioner's tenancy, and dismissing the proceeding brought pursuant to CPLR article 78, affirmed, without costs.

The article 78 petition was untimely under CPLR 217(1), which provides a four-month limitation period for review of administrative determinations. Petitioner's later correspondence with NYCHA, which was denominated a motion to vacate the settlement stipulation into which petitioner had entered with NYCHA, did not extend or toll her time to initiate an article 78 proceeding (see Matter of M & D Contrs. v New York City Dept. of Health, 233 AD2d 230, 231 [1996].

The dissent's reliance on Matter of Yarbough v Franco (95 NY2d 342 [2000]) is misplaced. Yarbough dealt with a motion to vacate a default judgment -- one which was not even served on movant for several months after it was entered. Her commencement of an article 78 proceeding to challenge the denial of her motion to vacate was clearly timely. That is completely the opposite of our matter where petitioner was presumably aware of the stipulation when it was signed, thereby commencing the four month limitation period. Unlike in Yarbough, there is no procedure to appeal the refusal to vacate a stipulation, hence no basis to toll or extend the statute of limitations.

Furthermore, since the proceeding is time-barred, petitioner's argument that her right to due process was violated cannot be addressed (see Matter of M & D Contrs. at 231). All concur except Manzanet-Daniels, J. who dissents in a memorandum as follows: MANZANET-DANIELS, J. (dissenting)

Petitioner Shirley Saunders, 76 years old and legally blind, had been the tenant of record for approximately 37 years at 395 Fountain Avenue, Apartment 7A in NYCHA's Cypress Hills Houses in Brooklyn. Petitioner's son, John Saunders, lived with her in the apartment, with NYCHA's knowledge.

By letter dated June 29, 2009, NYCHA notified petitioner of a Tenancy Termination Hearing; the hearing was to be based on charges that petitioner was violating her lease by allowing Lloyd Saunders, another of her sons, to live with her without NYCHA's permission.

Petitioner appeared without an attorney at NYCHA's hearing office on August 25, 2009; on that day, the hearing was adjourned to October 22, 2009. On October 22, 2009, petitioner returned to NYCHA's offices and met with a NYCHA attorney. According to petitioner, she explained to the NYCHA attorney that her son Lloyd had not lived with her in 30 years, but could not then offer proof of an alternate address for him.

On October 22, 2009, petitioner signed a stipulation of settlement that the NYCHA attorney had prepared. The stipulation provided that petitioner admitted to the charges -- that is, that Lloyd Saunders lived with petitioner in violation of NYCHA rules -- and required that petitioner vacate her apartment by March 31, 2010. The stipulation by its terms was not final, and explicitly provided that it was subject to the approval of NYCHA. On November 10, 2009, NYCHA approved the stipulation of settlement, including the termination of tenancy, and on November 18, 2009, mailed notice to petitioner.

On April 9, 2010, petitioner's counsel submitted to NYCHA a motion to vacate the stipulation of settlement and set the matter down for a hearing on the factual issue of whether, in fact, Lloyd Saunders lived with petitioner. In support of the request, petitioner submitted an affidavit stating that she had been confused, intimidated, and frightened when she went the NYCHA's offices on October 22, 2009, and was not thinking clearly because of her medication. Moreover, petitioner stated that she had not understood, in signing the stipulation, that she was agreeing that Lloyd lived with her and that she would vacate the apartment. Had she so understood, petitioner stated, she would not have signed the stipulation.

In further support of the request, petitioner attached an affidavit from her son Lloyd Saunders. In his affidavit, Saunders stated that he did not, in fact, live with petitioner, ...

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