Whipple v HPD - 100 Gold, Sec 8 Appeals Unit

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Whipple v HPD - 100 Gold, Sec 8 Appeals Unit 2012 NY Slip Op 31368(U) May 15, 2012 Sup Ct, New York County Docket Number: 400186/12 Judge: Alexander W. Hunter Jr 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. SCANNED ON 5172120 I2 [* 1] ' SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 35 Jusffcce Index Number : 40018812012 WHIPPLE, SABRINA - INDEX NO. vs . N.Y.C.D.H.P.D. SEQUENCE NUMBER : 001 ARTICLE 78 MOTION DATE MOTION SEQ. NO. - - ,were rbad on thls motion to/for '3'7 Notlce of MotlonlOrdor to Show Came - Affldavltm - Exhlblb Anrwsrlng Amdavlb - Exhlblts The followlng papen, numbered I to INO(#). I INO(@). IN O W . Rsplylng Amdavltl - I 0 > II-3C Upon the foregoing papem, It It ordered that thlr motion lo 1. CHECK ONE: ..................................................................... 0 NON-FINAL DISPOSITION W S E DISPOSED ........................... MOTION IS: c] QRANTED W 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRLATE: DO NOT POST E D 0QRANTED IN PART 0SUBMIT ORDER FIDUCIARY APPOINTMENT OTHER oREFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOKK: PART 33 __------------------------------- ---- - ------- ------- -------X Sabrina S. Whipplc, Petitioner, Index No.: 400186/12 Decision and Judgment -against- HPD - 100 Gold, Sec 8 Appeals Unit - Dominador V. Pascual 111, Esq., The application by petitioner for an order pursuant to C.P.L.R. Article 78, reversing respondent New York City Department of Housing Preservation and Development s ( HPD ) determination to terminate petitioner s Section 8 subsidy, is denied and the petition is dismissed, without costs and disburserncnts to either party. Petitioner s requcst in the alternative to be transferred to the New York City Housing Authority s ( NYCHA ) Section 8 Program is denied. Respondent s cross-motion to dismiss the petition is granted. Respondent HPD is the public housing authority responsible for administering the Section 8 program in New York City. This program is designed to assist lower income families in obtaining safe and affordable privately owned rental housing and to promote economically mixed housing. &, 42 U.S.C. § 1437(f)(aj and 24 C.F.R. § 982,1(aj(lj. HPD is required to conduct annual and interim reexaminations of family income and composition. 24 C.F.R. 8 982.516. HPD has the authority to deny or terminate Section 8 assistance if the family has: 1) misrepresented income, household members, or any other information reported to HPD; 2) violated one of the family obligations; or 3) failed to provide information requested by HPD. 24 C.F.R. 3 982.552. In 2000, pro se petitioner applied for and received approval to participate in the Section 8 program. In 2006, petitioner moved to a new apartment located at 3301 Barker Avenue, Suite 2, Bronx, NY ( subject apartment ). HPD entered into a Housing Assistance Payments contract with the landlord for the subject apartment. Petitioner s share or the monthly rent was $150.00 and HPD s share was $1,396.00. On June 27, 2007, petitioner.submitted her annual Section 8 Recertification Declaration Form. She indicated on the form that five individuals were currently living at the subject apartment: 1) petitioner; 2) Monica Glenn; 3) Sabrina Glcnn, Erik Mem, and Angel Meza. Petitioner also submitted two letters on New York Foundling letterhead, dated June 19,2007 and June 21,2007 respectively. The first letter stated that Sabrina Glenn and Monica Glenn (the Glenn children ) had resided with petitioner since 2005 and the second letter indicated that the [* 3] Glenn children were foster children residing with petitioner. Thereafter,respondent received information alleging that petitioner misrepresented her household composition. The Program Intcgrity and Compliance IJnit investigated and found that petitioner had submitted forged letters on New York Foundling letterhead. A Casework Supervisor at the New York Foundling Hospital informed HPD that they had no record of the Glenn children. They also had no record of petitioner listcd as a licensed foster home. HPD sent petitioner a Pre-Termination Notice of Section 8 Non-Compliance , dated September 18, 2009, which informed petitioner that her Section 8 subsidy may be terminated. The notice indicated that petitioner had misrepresented her household composition and the inforination shc supplicd was false and incomplete. The notice further provided that petitioner could request a conference with HPD to review her file before her Section 8 subsidy was terminated. By notice dated October 7,2009, petitioner s request for a conference was granted and scheduled for October 22,2009. Her conference was subsequently rescheduled for November 5 , 2009. Petitioner was instructed to bring any requested documents requested by HPD and any additional documents that would assist HPD in making a decision as tr, her Section 8 subsidy. At the conference, petitioner signed a Statement of Understanding - Section 8 Participant Obligation agreeing to submit certain documents by November 12, 2009. Petitioner failed to submit the additional documents requested by HPD. Respondent informed petitioner, by notice dated January 7,201 0, that her Section 8 subsidy was terminated effective February 28, 2010 because: 1) she had failed to submit thc additional requested documents; 2) she misrepresented her household composition as to Sabrina and Monica Glenn; and 3) she provided false and incomplete information. On or about January 10,2010, petitioner submitted a request for an informal hearing to appeal HPD s determination. Petitioner was notified by notice dated July 8,2010, that an informal hearing was scheduled for October 7,2010 at 2:OO PM. The notice indicated that the failure: 1) to appear at the hearing; 2) to call to reschedule; or 3) to appear at the scheduled time would result in a default and her Section 8 subsidy would be terminated. The hearing was held as scheduled on October 7,2010 before HPD Hearing Officer Doininador Pascual. Petitioner did not appear at the scheduled time. On October 12,2010, I-Icaring Officer Pascual issued a default decision and upheld HPD s decision to terminate petitioner s Section 8 subsidy. HPD sent petitioner a Notice of Determination After Informal Hearing Section 8 Subsidy Terminated ( Notice of Determination ), dated October 13,2010. The Notice of Determination informed petitioner that her Section 8 subsidy was terminated because she failed to appear at the informal hearing and did not contact HPD to reschedule. The Notice of Determination further stated that in order to appeal the determination she must file for judicial review through the New York State Unified Court System within four (4 months) of the 2 [* 4] date of the notice. Petitioner submitted a request to reschedule her hearing. She indicated that she was unable to attend the hearing on time because she had fallcn asleep on the train. On October 13, 20 10, petitioner submitted two notes from her primary care physician which stated that she was currently taking scveral medications for multiple medical ailments, some of which make her drowsy. On October 25, 2010, petitioner called HPD to inquire about her termination. On January 2 1,201 1, counsel for petitioner sent a letter to HPD requesting that Hearing Officer Pascual reconsider the default decision. HPD denied petitioner s request. Petitioner commenced the instant proceeding on January 24,2012. She asserts that she was forced to move out of the subject apartment because she was unable to pay the rent. Petitioner seeks to be reinstated into the Section 8 program or in the alternative to be transferred to the New York City Housing Authority s ( NYCHA ) Section 8 Program. Respondent cross-moves to dismiss the petition on the ground that the proceeding is timebarred. The statute of limitations began to run on October 13,2010, the date of the Notice of Determination. Moreover, neither petitioner s October 25, 20 10 inquiry nor her counsel s January 2 1 20 1 1 letter extended the statute of limitations. Therefore, respondent argues that petitioner had until February 13, 201 1, to commence her action, but failed to do so. Even if the petition was not time-barred, respondent argues that it does not the authority to transfer petitioner to NYCHA s Section 8 Program. Respondent maintains that HPD and NYCHA administer two separate and distinct programs and neither program has the ability to transfer its participants to the other. In opposition to respondent s cross-motion to dismiss, petitioner asserts that she had no hclp and was unaware that a unified court was Supreme Court and therefore could not timely commence the instant proceeding. She further asserts that she suffers from diabetes, asthma, and high blood pressure and has been on disability since 2008. Petitioner further argues that HPD unjustifiably terminated her Section 8 subsidy simply bccause she fell asleep on the train due to drowsy medications and inisscd her scheduled hearing. Pursuant to C.P.I,.K. 21 7( 1), a proceeding against a body or officer must be commenced within four months after the determination becomes final and binding upon the petitioner. An administrative determination becomes final and binding whcn the petitioner seeking review is aggrieved by it. Matter of Yarbowh v. Franca, 95 N.Y.2d 342,346 (2000). Courts have held Article 78 proceedings as time-barred even when commenced one day after the four month statute of limitations has expired. &, Matter of M m t v. Countv of Rockland, 265 A.D.2d 483 (2 Dept. 1999); Matter of Tuxedo Conservation and Taxpayers Ass n v. Town Bd., 213 A.D.2d 655 (2nd Dept. 1995). Moreover, requests to reconsider the final determination do not extend the applicable statute of limitations. $ee, Matter of De Milir, v. Bosghsrd, 55 N.Y.2d 216 (1982); Ravkowski v. New York Citv Dcpt of Tramp., 259 A.D.2d 367 (lNt Dept. 3 [* 5] 1999); Matter of Bonar v. Shaffer, 140 A.D.2d 153 (l t Dept. 1988). Respondent issued the Notice of Determination, its final dctennination, which terminated petitioner s Section 8 subsidy on October 13,2010. Petitioner was explicitly informed of the four month statute of limitations. Petitioner commenced this special proceeding more than eleven months after the expiration of the statute of limitations on January 24,2012. Therefore, this petition must be dismissed as time-barred pursuant to C.P.L.R. 321 1(a)(5). This court finds that petitioner s remaining arguments are without merit. Accordingly, ADJUDGED that the petition is denied and the proceeding is dismissed, without costs and disbursements to either party. Petitioner s request in the alternative to be transferred to NYCHA s Section 8 Program is denied. Rcspondent s cross-motion to dismiss the petition is granted. Dated: May 15,2012 J.S.C. 4 >

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