Matter of Nicholson v New York City Hous. Auth.

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Matter of Nicholson v New York City Hous. Auth. 2012 NY Slip Op 32955(U) December 13, 2012 Sup Ct, New York County Docket Number: 400422/12 Judge: Barbara Jaffe 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. SCANNEDON 1211712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART Index Number : 400422/2012 NICHOLSON, STANLEY vs. NYC HOUSING AUTHORITY SEQUENCE NUMBER : 001 - ARTICLE 78 L A ' I$- INDEX NO. MOTION DATE i d 1 I 3 , were read on this motion tolfor Notice of Motion/Order to Show Cause -Amdavits - Exhibits - Exhibits 'z i?l MOTION SEQ. NO, The following papers, numbered I to Answering Affidavits P Replylng Affidavits 44,L I C ,Jk J,q>d\c& INo(s)- I INo(s). 2 . 3 INO($). Upon the foregoing papers, it is ordered that this motion I s Dated: 1. CNECK ONE: ,J.S.C. ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MBTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0GRANTED &ED 0GRANTED IN PART OTHER 0SETTLE ORDER 0SUBMIT ORDER DO NOT POST 0FIDUCIARY APPOINTMENT c REFERENCE ] [* 2] SUPREME COURT OF THE STATE OF NEW Y O M COUNTY OF NEW YORK : PART 5 Index No. 400422/12 In the Matter of the Application of STANLEY NICHOLSON, Petitioner, Argued: Motion Seq, No.: Calendar No. : 713 I f 12 00 1 61 For a Judgment under Article 78 of the Civil Practice Law and Rules, -against- NEW YORK CITY HOUSING AUTHORITY, For respondent: Corina L. Leske, Of Counsel Kelly D. Macneal Acting General Counsel 250 Broadway, gthF1. New York, NY I0007 For petitioners: Stanley Nicholson, self-represented 295 Cozine Avenue, Apt. 4A Brooklyn, NY 11207 341-342-7124 By notice of petition dated February 3,201 1, petitioner brings this Article 78 proceeding seeking an order vacating and reversing respondent New York City Housing Authority s (NYCHA) determination terminating his tenancy. Respondent opposes. I. BACKGROUND Petitioner is the tenant of record of apartment 4A at 295 Cozine Avenue in Brooklyn, a NYCHA-owned apartment building. (Ver. Ans., Exh. A). His lease provides, in pertinent part, that he is obligated to pay his rent on the first day of each month and that NYCHA may terminate his lease if he fails to do so. (Id.). NYCHA s Termination of Tenancy Procedures also provide that a tenancy may be terminated for chronic delinquency in the payment of rent[,] [tJhe repeated failure or refusal of the tenant to pay rent when due. (Id., Exh. B). [* 3] On March 13,2009, petitioner was charged with chronic delinquency in the payment of rent for failing to pay his rent timely between December 2007 and July 2008 and for failing to pay any rent between August 2008 and November 2008, and he was notified that a hearing on the charges was scheduled for April 3,2009. (Id., Exh. F). The charges were subsequently amended to reflect his untimely payment of rent between May and August 2008 and his failure to pay rent between September 2008 and April 2009; the hearing was adjourned to August 4,2009. (Id., Exh. G). Petitioner failed to appear for the hearing, and on August 5 , 2009, the hearing officer found him in default and ordered his tenancy terminated. (Id. Exh. H). On August 26,2009, NYCHA approved the hearing officer s determination. (Id., Exh. I). Immediately thereafter, petitioner requested a new hearing date, claiming that he did not know that the hearing had been scheduled for August 4, and defending against the charges as follows: I just had surgery on my right foot and its (sic) finally healing. I won an (sic) fair hearing decision to help pay the back rent. I have to open a bank [account] so they can send my rent money direct before they can send the back rent. On August 28,2009, NYCHA opposed petitioner s request, asserting that he had established neither a reasonable excuse for his failure to appear nor a meritorious defense to the charges, alleging its possession of proof that the amended charges and notice were mailed to him, that its records reflect that he owes $5,738.20 in back rent, and claiming that he offers no documentation of his surgery or the fair hearing. (Id., Exh. K). Annexed to the opposition is an affidavit from a NYCHA employee dated August 28,2009 reflecting that she prepared the amended specification of charges and notice of the hearing for mailing by both regular and 2 . ... . . .. . __ .- ... . . . . .. . - .. [* 4] certified mail, that NYCHA s records reflect that the envelopes were mailed to petitioner on July 2,2009, and that neither envelope was returned to NYCHA as undeliverable. (Id.). Also annexed to the opposition is a NYCHA printout dated August 28,2009 reflecting petitioner s $5,738.20 in arrears. (Id.). On October 2,2009, a hearing officer denied petitioner s request for a new hearing, finding that NYCHA s affidavit of mailing constituted sufficient evidence of its timely mailing of the charges and notice, and that petitioner failed to set forth a meritorious defense in light of NYCHA s proof of his back rent and absent documentation of the fair hearing. (Id.,Exh. L), [* 5] to stay and pay his arrears, and that he has nowliere to go if his tenancy is terminated. (Ver. Pet.). In opposition, respondent observes that as the instant proceeding was commenced more than two and one-half years after NYCHA terminated petitioners tenancy, it is untimely. (Ver. Ans.). In any event, although it admits that petitioner has paid all but $625.80 of his back rent, it asserts that the hearing officer s determination is neither arbitrary nor capricious as petitioner offered neither a reasonable excuse for his default nor a meritorious defense to the charges. (Id.). 111. ANALYSIS A. Statute of limitations Pursuant to CPLR 2 17( 1), an Article 78 proceeding must be commenced within four months after the challenged determination becomes final and binding on petitioner. As more than two and one-half years elapsed between NYCHA s termination of petitioner s tenancy and the Commencement of the instant proceeding, it is untimely. B. Vacatur of default Even if the instant proceeding were timely commenced, my review would be nonetheless limited to whether respondent properly denied petitioner s application to vacate its default. (Yurboughv Franco, 95 NY2d 342 [2000]). In order to establish entitlement to vacatur of the default, petitioner must demonstrate both a reasonable excuse for the default and a meritorious defense to the underlying charges. (Mutter of Quinones v Mew York Cily Hous. Auth., -AD3d - 2012 NY Slip Op 6732 [ lStDept Oct. 9,20121; Matter ofcherry v New York Ct Haus. , iy A u h , 67 AD3d 438 [lstDept 20101). Mere denial of receipt of a notice or other pleading is insufficient to controvert evidence of service and does not constitute a reasonable excuse for default. (Baez v Ende Realty Corp., 78 4 [* 6] Dept 20 01; AD3d 574 [Ist Dept 20101; Bryant v New York City Hous.Auth., 69 AD3( 488 [lst Coyle v M y r Realty Corp., 54 AD3d 71 3 [Zd Dept 20081). Here, as respondent provided an ue affidavit of service reflecting that the amended charges and notice of the hearing were mailed to petitioner and not returned to NYCHA as undeliverable, petitioner s bare assertion that he was unaware of the August 4 hearing does not rebut the presumption of proper service and does not excuse his default. Moreover, as petitioner offers no proof of the fair hearing, and as NYCHA s records reflect that he owed over $5,000 in back rent at the time of his default, the hearing officer s determination that he failed to demonstrate a meritorious defense to the charges is neither arbitrary nor capricious. Although he now asserts, and NYCHA concedes, that he has paid most of his arrears, that a NYCHA employee wanted his tenancy terminated, and that he will experience hardship if he loses his apartment, as the scope of my review is limited to record adduced before the hearing officer (Matter of Featherstone v Franco, 95 NY2d 550,554 [2000]; Matter of Yarbough v Franco,95 NY2d 342,347 [2000]; Matter of Torres v New York Ct iy Hous. Auth., 40 AD3d 328,330 [ 1 Dept 20071; Matter of Patrick v Hernandez, 309 AD2d 566, 566 [Ist Dept 2003]), and as he failed to include these claims in his request for a new hearing, there is no legal basis for vacatur of the hearing officer s determination. Even if petitioner s payment of his arrears could be considered, a tenancy may be terminated for rent delinquency notwithstanding the tenant s subsequent payment of his or her arrears. (Matter of Zimrnerrnan v New York Ct Hous. Auth., 84 AD3d 526 [lst Dept 201 11). iy 5 [* 7] IV. CONCLUSION According, it is hereby ORDERED and ADJUDGED, that the petition is denied and the proceeding is dismissed in its entirety. + ENTER: Bar ara Jaff JSC DATED: December 13) 20 12 New York, NY DEC 3 3 2012 6

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