Clinton v Bayview Houses/ NYCHA

[*1] Clinton v Bayview Houses/ NYCHA 2009 NY Slip Op 52246(U) [25 Misc 3d 1222(A)] Decided on October 7, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2009
Supreme Court, Kings County

Dorothea Clinton, Petitioner,

against

Bayview Houses/ NYCHA, Respondent.



32825/08



Petitioner - Pro Se

Respondent:

Sonya M. Kaloyanides

Acting General Counsel

250 Broadway, 9th floor

New York, NY 10007

212-776-5180

Francois A. Rivera, J.

Petitioner Dorothea Clinton (hereinafter petitioner or Clinton) moves pro se under motion sequence number three and pursuant to CPLR article 78 to review the New York City Housing Authority's (hereinafter NYCHA) determination to terminate her tenancy after she defaulted in appearance at a fair hearing. Petitioner also seeks to review NYCHA's determination to deny hers request to vacate the aforementioned default. Respondent NYCHA opposes the motion and cross moves to dismiss the petition as untimely pursuant to CPLR §§3211(a)(5) and 7804(f).

MOTION PAPERS

Clinton served NYCHA with the instant petition and notice of petition with annexed exhibits. The annexed exhibits included a decision by, Stuart G. Lawrence, a NYCHA hearing officer, dated May 30, 2007, which granted NYCHA's determination to terminate petitioner's tenancy based on Clinton's default. The decision states that it was based on specific notice of charges which Clinton did not answer due to her failure to appear for the hearing scheduled on May 22, 2007. Also included is a letter to petitioner dated April 2, 2007, advising Ms. Clinton that a hearing scheduled for March 20, 2007 was adjourned to May 22, 2007. Another exhibit is labeled Specification of Charges and advises Ms. Clinton of the charges of chronic delinquency in the payment of rent. Another exhibit is a letter to Ms. Clinton dated January 26, 2007 advising her of the [*2]reopening of her default and the scheduling of a hearing on March 20, 2007. Also included is another Specification of Charges to Ms. Clinton.

Respondent's opposition and cross-motion to dismiss petitioner's application contains an attorney's affirmation and twelve exhibits labeled A through L. Exhibit A is a copy of the NYCHA's procedures for termination of a tenancy. Exhibit B is a notice, dated May 12, 2006, advising of a hearing scheduled for July 5, 2006, to determine whether petitioner's tenancy should be terminated. Exhibit C is a copy of petitioner's request for a new hearing dated July 25, 2006. Exhibit D is a copy of the aforementioned letter dated January 26, 2007 which re-opened petitioner's hearing. Exhibit E is a copy of the aforementioned letter dated April 2, 2007. Exhibit F is a copy of the May 30, 2007 decision to terminate the tenancy. Exhibit G is a copy of petitioner's request, dated June 8, 2007, for a new hearing. Exhibit H is a copy of the July 25, 2007 decision denying petitioner's request. Exhibit I is a printout of the appearance detail of the proceedings in Housing Court. Exhibit J is a county clerk printout of the history of the proceedings. Exhibit K is a copy of petitioner's order to show cause. Exhibit L is a New York County Supreme Court decision dated July 12, 2005. Respondent's also submitted affidavits from Shannon Holley and Shawn Younger in support of their cross motion.

Petitioner submitted a reply in the form of a notarized letter to the court.

BACKGROUND

On May 30, 2007, after failing to appear for two hearing dates charging her with rent payment delinquency, petitioner's tenancy in the Bayview Houses was terminated. Petitioner applied for a second re-opening of her hearing but on July 25, 2007 the Housing Authority's administrative hearing officer denied her application to open her second default. Petitioner now seeks to vacate the July 25, 2007 determination denying her request to vacate the termination of tenancy and denying her request to re-open the hearing.

LAW AND APPLICATION

CPLR § 3211(a)(5) provides in pertinent part that a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the cause of action may not be maintained because of ...statute of limitations. The determinations under review are by NYCHA which is considered a government body. Therefore, the controlling statute of limitations provision is found in CPLR §217(1). CPLR § 217 (1) provides in pertinent part as follows: "Unless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact."

A CPLR article 78 proceeding against a public body or officer must be commenced within four months after the determination to be reviewed becomes final and binding (CPLR § 217[1]; Matter of Carter v. State, Executive Dept., Div. Of Parole, 95 NY2d 267 [2000]). An administrative action is not final and binding within the [*3]contemplation of CPLR § 217(1) until it has its impact upon petitioner (Matter of Edmead v. McGuire, 67 NY2d 714 [1986]). Any ambiguity created by the agency itself as to the final and binding nature of its determination must be resolved against the agency (Matter of Carter v. State, Executive Dept., Div. Of Parole, 95 NY2d 267 [2000]); see also Mundy v. Nassau County Civil Service Commission, 44 NY2d 352 [1978]). Under this formulation, in Housing Authority termination cases, the statute of limitations does not begin to run until the petitioner receives notice of the determination to terminate (Bludson v. Popolizio, 166 AD2d 346 [1st Dept. 1990]).

Here there can be no dispute that petitioner received the decision, dated May 30, 2007, terminating petitioner's tenancy after default from NYCHA inasmuch as she attached it to her petition. The NYCHA letter, dated July 25, 2007, denying petitioner's application to vacate the decision and after defaulting twice is correctly addressed to her residence. The first notice is based on petitioner's default at a fair hearing. This decision to terminate his tenancy, however, is not the relevant accrual point for purposes of determining the timeliness of the petitioner. The Court of Appeals in Yarbough v. Franco, 95 NY2d 342 [2000] addressed this very issue on facts almost identical to the case at bar. At issue in Yarbough, was whether the four-month statute of limitations for challenging the denial of a tenant's request to vacate a New York City Housing Authority default determination accrues upon entry of the default or upon denial of the tenant's request to vacate it. The Court of Appeals determined that it was the latter. "However, the fact that a determination is final for the purpose of its present execution does not mean it is final for judicial review purposes (Matter of New York Cent. R.R. Co. V. Public Ser. Comm'n, 238 NY2d 132, 135-136). An administrative determination is not final for judicial review purposes if it rests upon an empty record. This is such a case. Although petitioner's default here effectively terminated her tenancy, any challenge to that default is unreviewable absent an application to the Authority to vacate it. A request to vacate a default affords the defaulting party an opportunity to develop a factual record setting forth the reasons for the nonappearance and any meritorious defenses that would justify re-opening the default (see Gray v. B. R. Trucking Co., 59 NY2d 649, 650, rearg dismissed 59 NY2d 966). ..."

Because no meaningful judicial review lies from the default itself, we hold that the Authority's denial of petitioner's application to vacate the default constitutes the final, binding determination from which the four-month Statute of Limitations is measured (see, Interboro Mgt. Co., v. State Div. of Human Rights, 139 AD2d 697, 698." Yarbough v. Franco, supra 95 NY2d at 347, 348 [2000].

Applying this analysis to the case at bar, the first notice by NYCHA terminating petitioner's tenancy based on her default at a fair hearing is unreviewable. Petitioner established that she took steps to vacate the notice of termination of her tenancy by [*4]seeking an opportunity to explain her default.

The NYCHA decision was signed by Hearing Office Stuart G. Laurence and dated July 25, 2007. It stated that petitioner did not adequately explain her default or provide a meritorious defense. This written determination was final and binding. The date of this decision is the date of accrual for measuring the four month statute of limitation. Respondent's opposition papers contained two affidavits attesting to the mailing of this notice to the petitioner on July 25, 2007. Petitioner did not deny this claim or allege any facts to the contrary.

The instant order to show cause was signed on February 18, 2009 and required service on the Housing Authority by February 20, 2009.

There is no dispute that petitioner commenced the instant proceeding more than one and one-half years after the NYCHA's determination to deny her request to vacate her default at the fair hearing. Petitioner's application is therefore untimely and must be dismissed.

The foregoing constitutes the decision and order of the court.



Francois A. Rivera, J.S.C.