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
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
- v MOTION SEQ. NO.
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
Upon the foregoing papers, it la ordered that thls
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.
SETTLE ORDER/ JUDG.
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
For a Judgment Pursuant to Article 78 of the Civil Practice :
Law and Rules,
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,
Nf? 18 2012
COUNTY CLERK’S OFFICE
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
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
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
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
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
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.”
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.
I 6 ZOO
COUNTY CLERK’S OFFICE