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In re Application of Flosar Realty LLC

Sup Ct, New York County

April 5, 2013

In the Matter of the Application of FLOSAR REALTY LLC, 155 REALTY LLC, 210 REALTY LLC, 243 HART REALTY LLC, 273 REALTY LLC, 316 REALTY LLC, 321 REALTY LLC, 362 REALTY LLC, 520 REALTY LLC, 1010 REALTY LLC, 1441 DEKALB REALTIES LLC, 1451 REALTY LLC, 1653 REALTY LLC, 1710 REALTY LLC, 2114 REALTY LLC, S & W REALTY LLC, 2204 REALTY LLC, 2812 CHURCH AVENUE CORP. and 5200 REALTY CO., LLC, Petitioners,
v.
THE NEW YORK CITY HOUSING AUTHORITY and JOHN B. RHEA, Respondents. For a Judgment Pursuant to Article 78 of the Civil Practice Law & Rules Index No. 102799/12

Unpublished Opinion

DECISION/ORDER

HON. CYNTHIA S. KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:

Papers Numbered
Notice of Motion and Affidavits Annexed.................................... 1
Answering Affidavits......................................................................
Cross-Motion and Affidavits Annexed........................................... 2
Answering Affidavits to Cross-Motion........................................... 3
Replying Affidavits...................................................................... 4
Exhibits...................................................................................... 5

Petitioners commenced the instant proceeding pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR") seeking, among other things, mandamus to compel respondent New York City Housing Authority ("NYCHA") to process 148 lease renewal rent increases for Section 8 tenants residing in petitioners' buildings at various locations in Brooklyn, New York. NYCHA cross-moves for an Order pursuant to CPLR §§ 3211(a)(5) and (a)(7) dismissing the petition. For the reasons set forth below, NYCHA's cross-motion to dismiss the petition is granted and the petition is denied.

The relevant facts are as follows. Petitioners are eighteen landlords participating in the federally-funded Section 8 rent subsidy program and own various buildings throughout Brooklyn, New York. They seek mandamus compelling NYCHA to process 148 lease renewal rent increases for Section 8 tenants residing in petitioners' buildings and retroactive reinstatement of Section 8 subsidies for 28 apartments which were suspended for failing NYCHA's Housing Quality Standards ("HQS") inspections. In the alternative, petitioners allege that NYCHA's failure to process the lease renewals and rent increases and reinstate the subsidies is a breach of the Housing Assistance Payments ("HAP") contracts entered into between petitioners and NYCHA for each apartment.

The court first turns to NYCHA's cross-motion to dismiss the petition. In the instant action, NYCHA's cross-motion to dismiss the petition on the ground that petitioners have failed to comply with Notice of Claim requirements pursuant to Public Housing Law § 157(1) must be denied. Pursuant to Public Housing Law § 157(1),

In every action or special proceeding, for any cause whatsoever, prosecuted or maintained against an authority, other than a claim arising out of a condemnation proceeding, the complaint or necessary moving papers shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such notice or special proceeding is founded were presented to the authority for adjustment and that ...

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