Matter of Wardrett v Wambua
Annotate this Case
Download PDF
Matter of Wardrett v Wambua 2012 NY Slip Op 31051(U) April 16, 2012 Sup Ct, NY County Docket Number: 402954/11 Judge: Carol E. Huff Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART 3< / MOTION DATE - v MOTION SEQ. NO. E74L MOTION CAL. NO. were read on thls motion tolfor The following papers, numbered 1 to PAPER5 NUM B E W Notice of Motion/ Order to Show Cauae - Affidavits - Exhlblts ... Answering Affidavlts - Exhibits Replylng Affidavits Cross-Motion: 0 Yes 0 No Upon the foregoing papers, it la ordered that thls FILED NEW YORK COUNTY CLERK'S O f f ICE fl NON-FINAL DISPOSITION Check one: 0 FINAL DISPOSITION Check if appropriate: 0 DO NOT POST n SUBMIT ORDER/ JUDG. fl [3 REFERENCE SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW Y O N : PART 32 Index No. 402954/11 In the Matter of the Application of MARLINA WARDRETT, Petitioner, : For a Judgment Pursuant to Article 78 of the Civil Practice : Law and Rules, I against - MATHEW WAMBUA, as Commissioner of the New York : City Department of Housing Preservation & Development; the NYC DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT; and SEA PARK EAST LP, FILED Nf? 18 2012 NEW YORK COUNTY CLERK S OFFICE Respondents. : CAROL E. HUFF, J.: In this Article 78 proceeding, petitioner seeks to annul the determination of respondents dated October 22, 201 0, which terminated her Section 8 housing subsidy. Petitioner commenced this proceeding by order to show cause (with a temporary restraining order enjoining her eviction) dated November 10,2011. Respondents New York City Department of Housing Preservation and Development, and its commissioner Mathew M. Warnbua (together, HPD ) cross move to dismiss the petition on the ground that it is barred by the statute of limitations. The petition alleges the following facts. Petitioner has lived in her apartment at 2970 West 27Lh Street, Brooklyn, New York, for inore than seventeen years. She suffers from severe arthritis, high blood pressure, diabetes and diabetic retinopathy which leaves her with extremely poor vision. She resides in the apartment [* 3] with her unemployed adult nephew. Petitioner receives approximately $761 per month in disability income. Without her Section 8 subsidy, her rent would be $1,026 per month. With the subsidy it would be $169. On November 6,2009, an HPD inspector conducted a Housing Quality Standards ( HQS ) inspection of her apartment. Her HPD file contains a Notice of Tenant NonCompliance - Housing Quality Standards Failure dated November 10, 2009, which is addressed to petitioner, although no HPD mail log or note entry records any evidence of it having been sent to petitioner. The notice states: The following conditions caused the failure: 4.4 and 8.4 . Nothing in the notice indicates what those numbers mean. The apartment was inspected again on December 28, 2009, and subsequently a PreTermination Notice of Section 8 Non-Compliance, dated January 15,2010, was allegedly mailed by regular and certified mail to petitioner. This notice stated that she had failed to correct the condition and that she had fifteen days from the date of the notice to request a conference. The certified inail tracking reveals that the certified letter was never picked up. There is no evidence in petitioner s HPD file that a regular mailing had occurred. An HPD internal document shows that a decision to terminate petitioner s Section 8 subsidy was made February 17, 20 11 effective March 3 1, 201 1, referencing HQS Double I Tenant Failure and Large amount of debris. A note in the HPD file indicates Termination letters sent to client via regular and certified mail, but no evidence of such mailings are in the file. Petitioner was unaware that her subsidy had been terminated until her landlord served her with a rent demand in August 201 1 and stated that it had not received a Section 8 subsidy since ) -2- [* 4] April 2010. HPD, conceding that there was no documentation in their files indicating that termination notices had been sent, issued a directive dated September 26,2010, from HPD director Evelyn Ruiz, which directed that petitioner be reinstated and re-terminated if the unit remains in HQS failure. By notice dated October 15, 2010, HPD informed petitioner that her Section 8 subsidy had been restored and that the arrearages would be paid to her landlord. In a document dated October 22,2010, HPD director Ruiz issued a document approving re-termination of the subsidy effective November I I , 2010. There is no indication in the HPD file that a re-inspection was made or attempted. Petitioner apparently received the new termination notice on October 25,2010. She filled out the form for a hearing, requesting another inspection. She held on to the form because she knew she was to meet with a Section 8 representative in Housing Court two days later, in connection with the eviction procedure her landlord had commenced. In court on October 27,2010, petitioner states that the Section 8 representative assured her that the subsidy had been restored. This is confirmed in the Stipulation of Settlement entered into between petitioner and her landlord that day, Petitioner states that the Section 8 representative did not indicate that petitioner s subsidy had been re-terminated. Petitioner thus mistakenly believed that the new termination notice was an error, but nevertheless she mailed her appeal notice on November 8,2010 by certified mail. The October 22 notice had provided twenty-one days in which to file an appeal, or until November 12,2010. The certified mail tracking of petitioner s notice of appeal shows that it took the Post Office ten days to deliver the item. Petition, Ex. W. Because it was received by HPD on -3- [* 5] November 18, six days late, HPD, by notice dated November 19, 2010 (the Determination), denied the request for appeal and proceeded with the termination of petitioner s Section 8 subsidy. Petitioner seeks to annul the Determination in this proceeding. HPD contends that because this proceeding was not commenced until November 10, 201 1, it is well beyond the four-month limitation period of CPLR 2 17 and is time barred. Petitioner states that the Determination only provided that she could appeal it in an appropriate judicial proceeding, and that she did not understand what that meant. She wrote HPD on December 2,2010, asking for reconsideration and received no response. On January 5 , 20 1 1, she returned to Housing Court in connection with another matter related to her landlord, and the landlord did not indicate that it had stopped receiving her subsidy again. In June 201 1, she first learned that her subsidy had been re-terminated when the landlord sued her again for nonpayment. She wrote HPD asking clarification on June 16,2011, but received no response. The eviction proceeding was adjourned to July 25,201 1, when a Section 8 representative appeared and confirmed the re-termination. Petitioner then appealed to her local congressman, who contacted HPD. HPD notes indicatc that on August 15,20 I 1, petitioner s case was presented before the Review Committee . . . based on the tenant s disability. HPD requested documentation of petitioner s disabilities, and on September 19,2011, issued a letter confirming the termination of her subsidy, stating only that her appeal of the Determination had not been received within the required timeframe. At some poiiit after that, petitioner contacted South Brooklyn Legal Services for representation. Couiisel for petitioner s landlord, while taking no position on this application, notes that HPD s refusal to grant petitioner an informal hearing is drastic and harsh and inequitable. -4- [* 6] The Court notes the comment in another HPD case where a Section 8 subsidy was terminated because of purported HQS violations: [Tlhe agency has favored adherence to rigid, technical, procedures in complete disregard of the reasons and policies behind why the regulations were enacted in the first place, rather than to actually ascertain whether the environment is safe and wholesome. Dupont v JJonovan, 21 MiscSd 113O(A), 3 (Sup Ct NY County, 2008). The petition is granted because the Court finds that petitioner s mailing of her appeal of the Determination on November 8,20 10, was reasonably calculated to provide timely notice to HPD of her appeal, and that it was through no fault of her own that the mailing was delayed and not delivered for ten days. The harm to petitioner is immeasurably greater than that to HPD, whose delay, inefficiency and disregard for the well being of its subsidy recipient had already extended the matter far beyond any rational justification. Accordingly, it is ORDERED that cross motion to dismiss is denied and the parties are directed to file an answer and a reply; and it is further ORDERED that the stay of proceedings on the part of respondent landlord Sea Park East LP is continued. Dated: A m FILED I 6 ZOO NEW YORK COUNTY CLERK S OFFICE C -5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
