Matter of 2807/2809 Claflin Realty, LLC v Rhea

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Matter of 2807/2809 Claflin Realty, LLC v Rhea 2012 NY Slip Op 33035(U) December 15, 2012 Sup Ct, New York County Docket Number: 103628/12 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY Justice MOTION DATE -v- a,/ MOTION SEO. NO. "Ts; Q H u MOTION CAL. NO. PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits .. - E - Exhibits ... 1- // Answering Affidavits - Exhibits 1 -@ 2 Replying Affidavits 3n-aS L 0 2 w Cross-Motion: @ Yes a NO CT Check one: @ FINAL DISPOSITION 0 NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 REFERENCE n SUBMIT ORDER/ JUDG. r] SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 33 X In the Matter of the Application of Index No. 2 2807/2809 Claflin Realty, LLC 1----1-------------------------------------------------~---~ Petitioner, Decision and Judgment For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- John B. Rhea, as Chair of the New York City Housing Authority, and the New York City Housing Authority, The application by petitioner for an order pursuant to Article 78 of the C.P.L.R. for an order compelling respondents to restore subsidy payments made to petitioner, retroactive to the date on which the subsidy payments should have been reinstated, and to issue retroactive and ongoing subsidy payments for the tenant Carnieri Diaz, is denied. Respondent s cross-motion to dismiss with prejudice, pursuant to C.P.L.R. ij 321 1 (S), is granted. Petitioner commenced this Article 78 proceeding on August 20,2012, by filing a verified petition. Respondent cross-moved to dismiss with prejudice, pursuant to C.P.L.R. 4 321 1. Petitioner is the owner and landlord of the premises known or located at 2807/2809 Claflin Avenue, Bronx, New York 10468. Carmen Diaz ( Diaz ) is the tenant of record of apartment 6 at 2807 Clafliii Avenue, Bronx, New York 10468 (the apartment ) and receives a Section 8 subsidy from New York City Housing Authority ( NYCHA ). The Secretary of Housing and Urban Development ( HUD ) provides subsidies through public housing agencies ( PHA ), such as NYCHA. The PHA certifies eligible families for participation in the program and enters into Housing Assistance Paynent ( HAP ) contracts with the owners of agency approved rental housing units, for direct payment of a portion of the tenant s monthly rent. See, 42 U.S.C. 8 1437 et. seq. Owners must maintain the unit in accordance with HUD promulgated Housing Quality Standards ( HQS ). The PHA must not make any housing assistance payments for a dwelling unit that fails to meet the HQS, unless the owner corrects the defect within the period specified by the PHA and the PHA verifies the correction. 24 C.F.R. 6 982.404. NYCHA specifies a time frame for correcting the HQS defect in its NE-1 notice. The PHA is obligated to inspect the subsidized unit at least annually to deternine whether it meets HQS and must notify the owner of any defects shown by the inspection. 24 C.F.R. 6 982.405. [* 3] NYCHA inspected Diaz s apartment was on April 5,2010, and found two serious HQS violations and three additional conditions. NYCHA sent an NE-1 notice, dated April 14,2011, to notify petitioner of the HQS violations found during the April 5,2010 inspection. Diaz signed a certification of completed repairs form on July 7, 201 1, and the executed form was returned via facsimile to NYCHA on July 1 1,201 1. NYCHA suspended Diaz s subsidy due to the HQS violation from June 1,2011 to August 3 1,2011. NYCHA resumed making subsidy payments after verifying the HQS violations were corrccted, effective September 1, 201 1. NYCHA then sent petitioner a second NE-1 notice, dated January 10,2012, which also referenced the April 5 , 2010 inspection and the same HQS violations previously certified as corrected. Petitioner sent an executed certification of completed repairs form on February 1, 2012, via facsimile to NYCHA . NYCHA rcinspected the preinjses on April 4,2012, and found two new HQS violations. NYCHA did not find the previous HQS violations. Petitioner was notified with a 3-L form and sent the executed 3-L certification of completed repairs on June 19,2012, via facsimile to NYCHA. Diaz s subsidy was not suspended agaiii and remains current to date. Petitioner argues that Diaz s subsidy should be retroactively restored for the period June 1, 201 1 through August 3 1, 201 1. Petitioner brings suit under a theory of mandamus to compel, and in the alternative, under a theory of certiorari. Respondent cross-moved to dismiss on thc grounds that petitioner s mandamus claim is time-barred by the doctrine of laches because petitioner did not make a tiniely demand. As a preliminary matter, petitioner argues that respondent s cross motion to dismiss should be denied as untimely. It is within this court s discretion to permit an untimely answer, especially when there is no prejudice to petitioner. See, Matter of Castell v. City of Saratopa Springs, 3 AD3d 774, 2004 NY Slip Op 00308 (3d Dept 2004); Matter of Marseilles Leasinp Co. v. New York State Div. of How, & Community Renewal, 140 AD2d 345 (2d Dept 1988). While respondent served answering papers several days late, petitioner secured an extension to answer the cross-motion and was not prejudiced. Mandamus to compel is a judicial command to an officer or body to perform a specified ministerial act that is required by law to be performed. See, Matter of Hamptons Hosp. & Med. Ctr. v. Moore, 52 NY2d 88 (1981). The petitioner must show a clear legal right to the requested relief to succeed in mandamus and the petition must be denied if the right to performaiice is clouded by reasonable doubt or controversy. Matter of Assn. of Surropates & Supreme Ct. Reporters within Citv of N.Y. v. Bartlett, 40 NY2d 571, 574 (1976). Mandamus cannot be used to compel an ofiiccr or tribunal to reach a particular outcome with respect to a decision that turns on the excrcisc or discretion or judgment. Klosterrnan v. Choiiio, 61 NY2d 525 (1984). In a proceeding for mandarnus relief, the four month statute o f limitations does not begin to run until the date petitioner s demand for action is refused. Donophue v. New York Citv Dept. of Educ., 80 AD3d 535,2011 NY Slip Op 00425 (1st Dept 2011). However, petitioner 2 [* 4] will be found guilty of laches and its proceeding barred if it fails to make a demand for relief Matter of Civil within a reasonable time after the right to make the demand occurs. See, =, Serv. Emals. Assn. v. Board of Educ., Patchome-Medford Union Free School Dist., 239 AD2d 415 (2d Dept 1997) (nine month delay); Matter of McKenzie v. Comptroller of State of N.Y., 268 AD2d 828 (3d Dept 2000) (thirteen month delay). Petitioner s right to make a demand arose when the subsidy was suspended in June 201 1, however it did not make a demand until June 2012 (twelve month delay). While petitioner interprets respondent s argument as raising a statute of limitations issue as to the date of commencement of the proceeding, the rationale is rather a laches issue as to the date the demand was made. Laches is applicable in the instant proceeding because petitioner waited a year to make a demand. In the alternative, petitioner argues that NYCHA s failure to retroactively restore the subsidy is arbitrary and capricious under a theory of certiorari. Respondent cross-moved to dismiss on the grounds that the niandainus to review claim is barred by the four month statute of limitations. The writ of certiorari, also known as mandamus to review, is sought where petitioner seeks judicial review of the final determination of an agency. Matter of Scherbvn v. WavneFinver Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753 (1991). The standard used in mandamus to review is whether a determination was arbitrary and capricious. Matter of Marburp v. Cole, 286 NY 202 (1941). Therc are two requirements for a filial and binding dccision: (1) tlic agency must liavc rcaclied a definitive position 017 the issue that inflicts actual, concrete iiijury, and (2) the injuiy inflicted may not be prevented or significantly ameliorated by further adininistrative action or by steps available to the complaining party. Matter of Best Pawhones, Inc, v. Dept. of Info. Tech. & Telecom. of Citv of N.Y., 5 NY3d 30,40 (2005). Petitioner cannot be said to be aggrieved by the mere issuance of a determination when the agency itself has created an ambiguity as to whether or not the determination was intended to be final. Matter of Biondo v. New York State Bd. of Parole, 60 NY2d 832,470 (1983). NYCHA creates an ambiguity when it sends an NE- 1 notice indicating that as long as an owner provided the certification to NYCHA, it would either deny the certification or reinspect the unit, but instead remains silent. Matter of ERG 3715 LLC v. New York Citv How. Auth., 2012 NY Slip Op 30656(U) (Sup Ct, NY County 2012). When NYCHA does reinspect the unit or provide petitioner with subsequent written notices there is no ambiguity, thus NYCHA s act of suspending the subsidy constitutes a final and binding determination. See, e.%,Id.;Chillum Place v. Rhea, Index No. 101565/12 (Sup Ct, NY County 201 2); Roval Charter Properties, Inc. Y. New York City How. Auth., Index No. 100189/10 (Sup Ct, NY County 2010); Weilders v. New York City How. Auth., Index No. 1 1 27872/11 (Sup Ct, NY County 201 1). A party must commence a special proceeding under Article 78 of the C.P.L.R. by filing a petition within four months after the administrative determination to be reviewed becomes final and binding on the aggrieved party. &, C.P.L.R. 5 217 (1) & 304; Best Pawhones, Inc. v. e Dept. of Info. Tech. & Telecomms., 5 NY3d 30 (2005), 2005 NY Slip Op 04616. The four [* 5] month limitation period is construed strictly, particularly against Article 7 8 petitioners seeking to challenge NYCHA determinations, and the court does not have the discretion to extend tlie statute of limitatioiis in the interest ofjustice. See De Milio v. Borhard, 55 NY2d 216 (1982); Saunders v. Rhea, 92 AD3d 602 (1st Dept 2012). Here, unlike Matter of BRG,there is no ambiguity that NYCHA made a final deteriniliation because it reinspected the premises. The first nonpayment of a disputed subsidy constituted a final and binding determination and put petitioner on notice of NYCHA s adverse determination. The four month statute of limitations began to run in June 201 1 and this action was not commenced until more than a year later in August 2012. Petitioner s inandmius to review claim is timc-ban-ed. Accordingly, it is hereby, ADJUDGED, that the petition is denied and the proceeding is dismissed with prejudice, without costs and disbursements to either party. Dated: December 15,2012 4

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