In the Matter of the Application of Christina Decastro, Petitioner,
Mathew Wambua, in his capacity as COMMISSIONER of the NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, and SPRING CREEK REALTY, LLP, Respondents.
For Petitioner Stephen Myers Esq.
For Respondents Yungbi A. Jang, Assistant Corporation Counsel
Lucy Billings, J.
This proceeding pursuant to C.P.L.R. Article 78 seeks to annul the March 2009 determination by the New York City Department of Housing Preservation and Development (HPD) terminating petitioner's federal rent subsidy due to her failure to recertify her eligibility. Petitioner claims HPD's determination was arbitrary and contrary to law. C.P.L.R. § 7803(3).
Petitioner alleges that she suffers from Major Depressive Disorder, Recurrent and Severe with Psychotic Features, which caused her to ignore her mail. Therefore petitioner did not learn of her noncompliance with the recertification requirement, nor did she respond to the Termination Notice mailed to her by HPD informing her of her right to request a hearing to appeal HPD's determination within 21 days.
In 2011, upon learning of the termination, petitioner submitted a written request to HPD that it reinstate her subsidy on the grounds that her emotional and psychological conditions, which she set forth in detail, prevented her from complying with HPD's procedures for continuing participation in the subsidy program. In a response dated June 30, 2011, HPD declined to restore petitioner's subsidy, citing her failure to submit the required 2009 recertification or to seek review of the termination by requesting an informal hearing within the prescribed 21 days.
Petitioner now moves to amend her petition to allege new legal claims based on the same facts set forth in the petition and summarized above. C.P.L.R. §§ 3025(b), 7804(d). As the new claims are against only respondent Commissioner of HPD, only he opposes petitioner's motion. The only other respondent, petitioner's landlord, takes no position regarding her motion.
II. STANDARDS FOR AMENDING THE PETITION
C.P.L.R. § 3025(b) permits amendments to a petition as long as they do not unfairly surprise or otherwise substantially prejudice respondents, Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d 502, 504 (1st Dep't 2011); Jacobson v. McNeil Consumer & Specialty Pharms., 68 A.D.3d 652, 655 (1st Dep't 2009); Thompson v. Cooper, 24 A.D.3d 203, 205 (1st Dep't 2005); Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352, 354-55 (1st Dep't 2005), and the proposed claims for relief, as alleged, are meritorious. Sabo v. Alan B. Brill, P.C., 25 A.D.3d 420, 421 (1st Dep't 2006); Thompson v. Cooper, 24 A.D.3d at 205; Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d at 355; Watts v. Wing, 308 A.D.2d 391, 392 (1st Dep't 2003). Petitioner bears the burden to demonstrate the merits of her proposed relief through admissible evidence. Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d at 355; Pacheco v. Fifteen Twenty Seven Assoc., 275 A.D.2d 282, 284 (1st Dep't 2000); Non-Linear Trading Co. v. Braddis Assocs., 243 A.D.2d 107, 116 (1st Dep't 1998). See Sepulveda v. Dayal, 70 A.D.3d 420, 421 (1st Dep't 2010); Spence v. Bear Stearns & Co., 264 A.D.2d 601, 602 (1st Dep't 1999).
III. THE MERITS OF THE PROPOSED RELIEF
A. The Original Petition's Timeliness
Petitioner was required to commence this proceeding within four months after the determination to be reviewed became final and binding. C.P.L.R. § 217(1); Yarbough v. Franco, 95 N.Y.2d 342, 346 (2000). The challenged determination became final and binding when it had impact on petitioner and she knew she was aggrieved by it. Baloy v. Kelly, 92 A.D.3d 521, 522 (1st Dep't 2012); Eldaghar v. New York City Hous. Auth., 34 A.D.3d 326, 327 (1st Dep't 2006).
An administrative determination that is final for the purpose of implementation, however, is not necessarily final for the purpose of judicial review. Yarbough v. Franco, 95 N.Y.2d at 346. Petitioner claims her failure to comply with HPD's recertification procedure and to request administrative review of HPD's determination, which terminated her entitlement to rental assistance, amounts to a default since no factual record establishes her excuse for failing to recertify or a potential defense to the termination. See id. at 347. Where no factual record sets forth ...