Matter of Bramble Weilders, Inc. v New York City Hous. Auth.

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Matter of Bramble Weilders, Inc. v New York City Hous. Auth. 2012 NY Slip Op 32181(U) August 10, 2012 Supreme Court, New York County Docket Number: 112872/2011 Judge: Peter H. Moulton 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] UED ON 8120120 12 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY H. U O ~ T ~ p J PRESENT: PART Justice Index Number : 112872/2011 BRANBLE WEILDERS, INC. vs. NYC HOUSING AUTHORITY SEQUENCE NUMBER : 001 INDEX NO. MOTION DATE MOTION SEQ.NO. ARTICLE 78 The following papem, numbered 1 to Notice of MotlonlOrder to Show Cause , were read on thls rnotlon to/for -Affldavlts - Exhlblta rdered that thls mat)srr I s 0 3 UNFILEQ JUDGMENT W This judgment has not k e n entered by the County Clerk and notice of entry cannot be served based hereon. To obtain enby, counsel o authorized reprasentative must r appear in p s o n atthe3udgmentclerk sDesk (Room 1416). / , J.S.C. Dated: I. CHECK ONE: ..................................................................... ........................... MOTION IS: fl GRANTED 0DENIED CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: 3. IJ m DISPOSED S E 0DO NOT POST NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 4 0 B _ _ _ - - - _ _ - - - _ _ - - _ _ _-X - In the Matter of the Application of Index No. 112872/11 BRAMBLE WEILDERS, INC., Petitioner, Respondent. - _ _ + _ _ _ _ - - - _ _ - - - - _ - - -X PETER H. MOULTON, J . S . C . : Petitioner, small a landlord, this brings Article 78 proceeding to reverse the decision of Respondent New York City Housing Authority, ("NYCHA") to terminate a section 8 subsidy. Petitioner seeks to recoup $12,535.27 in rental payments for the period October 1, 2010 through August 31, 2011. The subsidy was terminated effective October, 2010, after the apartment failed to meet federal housing quality standards. This proceeding was commenced more than one year later. Respondent barred. cross moves to dismiss the petition as time Respondent attachea a copy of a letter addressed to petitioner, dated September 2 2 , 2010, notifying her that various conditions needed to be repaired, and verified as repaired by respondent, or the subsidy would terminate on October 13, 2010. [* 3] The notice, referred to as an NE-1 letter, provided in relevant p a r t : [Wle will take action to suspend subsidy on October 2010, unless we are properly notified (see below) that appropriate repairs have been made and we verify these corrective measures. If the above violations are not corrected, the Authority will offer the family a voucher to enable them to seek other housing and we will terminate the HAP Contract without further notice if the family is approved for a Section 8 transfer. 13, It further provided: FAILURE TO COMPLETE REPAIRS, NOTIFY OUR INSPECTION UNIT, AND HAVE THE AUTHORTTY VERIFY THAT THE ARE DONE WITHIN 30 DAYS AFTER THE REPAIRS INSPECTION SHALL RESULT IN SUSPENSION OF SUBSIDY. REINSTATEMENT OF SUBSIDY WILL NOT BE CONSIDERED UNTIL WE RECEIVE AND ACCEPT THE CERTIFICATION, OR UNTIL WE RECEIVE NOTIFICATION OF COMPLETED REPAIRS FROM YOU AND WE REINSPECT THE APARTMENT TO DETERMINE THAT THE UNIT COMPLIES WITH HQS. The letter also notified petitioner that she might be entitled.to reimbursement for some or all of the suspended subsidy if she could establish that the majority of the violations were caused by the tenant, or that access was delayed by the tenant. To seek such reimbursement, the letter instructed petitioner to call the customer service center, within 30 days of receipt of the notice, for a discussion about the policy requirements. Petitioner admits getting the notice, and explains that after she received the notice, she called the inspection unit to advise them that the tenant refused access. She states that she took other steps after the "first missed payment in October 2010" 2 [* 4] including personally visiting respondent's offices to explain that she could not gain access.' Petitioner contends that she maintained communication with respondent over the next several months. She also commenced a non-payment proceeding in 2011, and a stipulation was signed providing for access dates. To bolster her claims of lack of access, petitioner attaches a notice from New York City Department of Housing Preservation & Development, dated April 19, 2011, addressed to the tenant as "occupant" to provide access to correct violations. She also submits a letter from her home improvement contractor, dated July 12, 2011, stating that he could not gain access to t h e apartment to make repairs. Finally, she submits a letter dated October 14, 2011 to respondent reiterating that she has not been able to make repairs because the tenant did not provide access. CPLR article 7 8 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 [l]). An agency determination is final when the petitioner is aggrieved by the determination Parole, (see Matter of Eiondo v N e w 60 NY2d 832, 834 [1983]). York State Bd. ' of A petitioner is aggrieved once the agency has issued an unambiguously final decision that puts 'Respondent stateB that its records indicate that petitioner appeared at the Customer Contact Center on or about July 20 2011 regarding termination of the subsidy. 3 [* 5] the petitioner on notice that all administrative appeals have been exhausted; any ambiguity created by the agency as to whether the decision is final and binding is resolved against the agency (see Matter of C a r t e r v S t a t e of N . Y . , Exec. D e p t . , D i v . a f Parole, 9 5 NY2d 267 [ 2 0 0 0 1 ) . Petitioner concedes that she received the NE-1 notice, dated September 2 2 , 2010, warning her of the termination of t h e subsidy on October 13, 2010. payment in October Petitioner a l s o refers to the "first missed 2010" and obviously knew that she did not receive,payments thereafter. Petitioner's purported contact with respondent regarding the alleged access problems, and the evidence submitted to demonstrate her attempts to gain accesa (many of which occurred more than nine months a f t e r termination of the subsidy) cannot salvage her claim. Petitioner knew or should have known that she was aggrieved after she stopped receiving subsidy payments, as warned in the unambiguous NE-1 notice (see Matter of Baloy v Kelly, 92 AD3d 521 [lst Dept 20121 [letter denying application for gun license was final and binding for the purposes of the four month statute of limitations because petitioner knew or should have known that he was aggrieved by i t 1 ) decision was . 2 Even if the considered final and binding a few months after 2Petitioner does not argue that the law or the contracts that she signed entitled her to any further notice indicating that the subsidy was terminated, or notice of the time limits in which to file an Article 7 8 . 4 [* 6] petitioner stopped receiving her first missed payment, the proceeding is time b a r r e d . Accordingly, it is ADJUDGED that cross motion to dismiss the petition as time barred is granted, without costs and disbursements; and it is further ADJUDGED that the petition is denied as untimely and the proceeding is dismissed. This Constitutes the Decision and Judgment of the Court. Dated: August 10, 2012 ENTER : WNFILED JUDGMENT J!S.C. This Judgmenthas not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in pmun a the Judgment Clerk s Desk (Room t 1418). H O N . > m H.MOULToN COURT mma 5

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