Matter of Carrier v Hernandez

[*1] Matter of Carrier v Hernandez 2006 NY Slip Op 51917(U) [13 Misc 3d 1220(A)] Decided on July 17, 2006 Supreme Court, New York County Mills, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 17, 2006
Supreme Court, New York County

IN THE MATTER OF THE APPLICATION OF Tatanisha Carrier, Petitioner, FOR A JUDGMENT PURSUANT TO ARTICLE 78 OF THE CIVIL PRACTICE LAW AND RULES

against

Tino Hernandez, AS CHAIRMAN OF THE NEW YORK CITY HOUSING AUTHORITY, and RAQUEL REALTY, LLC., Respondents.



401992/02

Donna Marie Mills, J.

Petitioner Tatanisha Carrier (Petitioner) brings this Article 78 proceeding seeking a judgment from this Court reversing and annulling respondents' New York City Housing Authority (NYCHA) determination to terminate petitioner's Section 8 subsidy. Respondents cross move to dismiss the petition as barred by the four-month Statute of Limitations for a Article 78 proceeding, as set forth in CPLR § 217.

BACKGROUND

Respondent administers a federal assistance program which provides rent subsidies for lower income families known as Section 8 Existing Housing Program (Section 8). Under this program, the Housing Authority serves simply as the program administrator and pays rent subsidies to participating landlords on behalf of participating tenants. In order to maintain eligibility for the program, participants must re-certify their household composition and total household income on an annual basis. See 24 C.F.R. § 982.516; 24 C.F.R.

§ 982.551(b). If a Section 8 participant fails to meet her obligations under the Section 8 program, the subsidy may be terminated by the Housing Authority. 24 § C.F.R. 982.552.

Respondent claims that petitioner did not return her annual recertification package in a timely fashion in 2005. Respondent claims that in July, 2005, a warning letter was sent along with a second copy of the recertification packet. Respondent maintains that they then sent a Notice of Termination of Section 8 subsidy form (known as "T-1") which states the NYCHA's intention to terminate the participant's subsidy, and that the participant must respond within twenty days and request a hearing if she wishes to contest termination of her subsidy. After not hearing from the petitioner, respondent contends that they then sent a Notice of Default (known as "T-3"), which has the same force and effect as a determination after a hearing to terminate subsidies. The Notice of Default informs the participant she must request a hearing within forty-five (45) days of the date of the Notice of Default to challenge the default. A request for a hearing serves to continue the participant's subsidy until a final determination is made. [*2]

Petitioner maintains that she only received the warning letter and not the T1 and T3 letters because her mailbox was broken, and as a result, she failed to receive a lot of her mail. Petitioner claims that she did complete and send her recertification papers to respondent, and immediately responded to the warning letter by calling the NYCHA. Petitioner further contends that she spoke to a worker who told her that if she had completed her recertification papers, she should not worry about the warning notice she had received.

APPLICABLE LAW & DISCUSSION

The Section 8 program is subject not only to the rules established by federal law pursuant to 42 U.S.C. § 1437(f), but is also subject to a federal consent judgment,

Williams v New York City Housing Authority, 81 Civ. 1801 (R.W.) (Hereinafter the "Williams Consent"), which sets forth comprehensive notice procedures which must be followed before terminating Section 8 assistance. The First Partial Consent Judgment in Williams provides that termination of the Section 8 subsidy "shall be made only after a determination in accordance with the procedures and provisions herein." Those procedures, provide that no fewer than three notices must be sent to the Section 8 subsidy recipient pending termination.

After a preliminary determination that the recipient is subject to termination procedures, the Housing Authority must send the recipient a warning letter specifically stating the basis for termination and, if appropriate, seeking the recipient's compliance. If the conditions which led to this preliminary determination are not remedied within a reasonable time, the Housing Authority must send a second written notice, the Notice of termination, which the Housing Authority calls the "T-1 letter," by certified and regular mail, providing the specific grounds for termination and informing the recipient that she may request a hearing. If the recipient does not respond to the Notice of termination letter, the Housing Authority must mail a Notice of Default, which the Housing Authority calls the "T-3 letter" to the recipient, informing her that the rent subsidy will be terminated, and advising her of the grounds for the termination. The recipient must be afforded an opportunity to request a hearing. Finally, if the recipient does not respond to the "T-3 letter" the Section 8 subsidy is terminated on the 45th calendar day following the date of mailing of the Notice of Default.

According to the mailing procedures enunciated in the Williams consent judgment, both the T-1 notice and the T-3 notices must be mailed to the participant both by certified and regular mail. This procedure is required by the Housing Authority to increase the likelihood that the participant will actually receive the notice. Matter of Green v Hernandez, 6 Misc 3d 1041 (Sup Ct, NY County 2005). In the case at bar, the respondent has shown, by sufficient evidence, that the mailing procedures were complied with, and the mere fact that the certified T1 and T3 letters went unclaimed does not in and of itself deem the respondent's attempts legally insufficient, since the regular mailings were not also returned as unclaimed. Since only the certified mailings were returned as unclaimed, which for purposes of the Postal Service means that the addressee abandoned or failed to call for the mail, there is a rebuttable presumption of receipt of the regular mailing, and it can be inferred that the petitioner was attempting to avoid notice by ignoring the certified mailings (see Harner v County of Tioga, 5 NY3d 136 [2005). This court also factors into its consideration, the petitioners negative history [*3]of responding untimely to the recertification process. Thus, under the circumstances of the case, the notice procedures satisfied the Williams Consent.

Accordingly, it is

ORDERED that petitioner's motion to reverse and annul the New York City Housing Authorities determination terminating her Section 8 subsidy is denied; and it is further

ORDERED that the cross-motion to dismiss the petition is granted.

Dated: 7-17-06

ENTER:

________________

J.S.C.