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In re Banos

Supreme Court of New York, Second Department

November 13, 2013

In the Matter of Tayinha Banos, petitioner-respondent,
v.
John Rhea, etc., et al., appellants, et al., respondent. Index No. 4576/12

Kelly D. Macneal, New York, N.Y. (Corina L. Leske and Maria Termini of counsel), for appellants.

Steven Banks, Brooklyn, N.Y. (Ferdinand Ubozoh of counsel), for petitioner-respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In a proceeding, inter alia, pursuant to CPLR article 78 to review a determination of the New York City Housing Authority dated May 7, 2010, terminating the petitioner's benefits under Section 8 of the United States Housing Act of 1937 (42 USC § 1437f[b][1]), John Rhea, as Chairman of the New York City Housing Authority, and the New York City Housing Authority appeal, by permission, from an order of the Supreme Court, Kings County (Edwards, J.), dated July 9, 2012, which denied their motion to dismiss the petition on the ground that the proceeding was time-barred.

ORDERED that the order is affirmed, with costs.

The petitioner commenced this proceeding against, among others, the respondents John Rhea, as Chairman of the New York City Housing Authority (hereinafter NYCHA) and the NYCHA (hereinafter together the appellants), challenging the termination by the NYCHA of her benefits under Section 8 of the United States Housing Act of 1937 (42 USC § 1437f[b][1]). Prior to submitting an answer, the appellants moved to dismiss the petition on the ground that the proceeding was time-barred. In opposition, the petitioner alleged, inter alia, that the NYCHA failed to comply with the notice provisions of the first partial consent judgment in Williams v New York City Hous. Auth. (US Dist Ct, S.D. NY, 81 Civ 1801, Ward, J., 1984) (hereinafter the Williams first partial consent judgment) before terminating her Section 8 benefits.

The Williams first partial consent judgment "established procedures by which Section 8 tenants may challenge a NYCHA decision to discontinue or terminate subsidy payments" (Williams v New York City Hous. Auth., 975 F.Supp. 317, 319 [SD NY]). These procedures require that the NYCHA send three separate written notices to a participant before terminating his or her Section 8 benefits (see Matter of Fair v Finkel, 284 A.D.2d 126, 127). As set forth in the Williams first partial consent judgment, these notices include a warning letter, a notice of termination letter (known as the T-1 letter), and a notice of default letter (known as the T-3 letter) (see Williams first partial consent judgment ¶ 3[a], [b], [c]; Matter of Dial v Rhea, __ A.D.3d __ [decided herewith]; Matter of Fair v Finkel, 284 A.D.2d at 128). Pursuant to paragraph 22(f) of the Williams first partial consent judgment, the four-month statute of limitations of CPLR 217 begins to run on the date of receipt of the NYCHA's notice of default letter (see Williams first partial consent judgment ¶ 22[f]; see also Matter of Parks v New York City Hous. Auth., 100 A.D.3d 407; Matter of Lopez v New York City Hous. Auth., 93 A.D.3d 448; Matter of Fernandez v NYCHA Law Dept., 284 A.D.2d 202). The burden of proving compliance with the three-notice requirement rests with the NYCHA (see Matter of Dial v Rhea __A.D.3d__ [decided herewith]; Matter of Fair v Finkel, 284 A.D.2d at 129).

Here, the record shows that the NYCHA failed to mail to the petitioner either the warning letter or the notice of termination letter. Thus, the NYCHA's termination of the petitioner's Section 8 benefits was in violation of lawful procedure (see Matter of Dial v Rhea __ A.D.3d __ [decided herewith]; see generally Matter of Robinson v Martinez, 308 A.D.2d 355; Matter of Fair v Finkel, 284 A.D.2d 126). Contrary to the appellants' contention, since the NYCHA did not comply with the notice provisions set forth in the Williams first partial consent judgment, the statute of limitations was not properly triggered and did not begin to run (see Matter of Dial v Rhea, __A.D.3d __ [decided herewith]; but see Matter of Lopez v New York City Hous. Auth., 93 A.D.3d 448).

Accordingly, the Supreme Court properly denied the appellants' motion to dismiss the petition on the ground that the proceeding was time-barred.

The appellants' remaining contentions either are without merit or have been rendered academic in light of our determination.

RIVERA, J.P., HALL and COHEN, JJ., concur.

MILLER, J., dissents, and votes to reverse the order and grant the appellants' motion to dismiss the petition on the ground that the proceeding was time-barred, with the following memorandum:

The petitioner commenced this proceeding to "reverse and annul" a determination made by the respondent New York City Housing Authority (hereinafter the Housing Authority) to discontinue benefits that she was receiving under Section 8 of the United States Housing Act of 1937 (42 USC § 1437f[b][1]; hereinafter Section 8 benefits), and to reinstate "the [rent] subsidy from about July 2010, to the present." The verified petition, dated February 24, 2012, asserted that the Housing Authority's determination to discontinue the petitioner's Section 8 benefits should be annulled and that the petitioner was entitled to have her Section 8 benefits "reinstate[d]... retroactively to the date of termination" because the Housing Authority determination was made in violation of lawful procedure.

The Housing Authority and John Rhea, as chairman of the Housing Authority (hereinafter together the appellants), thereafter interposed a pre-answer motion pursuant to CPLR 7804(f) to dismiss the petition on the ground that it was time-barred. In support of their motion, the appellants submitted, inter alia, a mail log and employee affidavits which demonstrated that notice of the Housing Authority's determination to terminate the petitioner's Section 8 benefits was mailed to the petitioner by both certified and regular mail on May 17, 2010. The appellants asserted that the applicable statute of limitations was four months (citing CPLR 217), and that the statute of limitations began to run when the petitioner received notice of the Housing Authority's determination in May 2010. The appellants argued that, since the ...


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