Haran Realty LLC v Department of Hous., Preserv. & Dev. of the City of N.Y.

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Haran Realty LLC v Department of Hous., Preserv. & Dev. of the City of N.Y. 2004 NY Slip Op 30386(U) November 3, 2004 Supreme Court, New York County Docket Number: 104402/04 Judge: Emily Jane Goodman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: l.A.S. PART 17 -----------------------------------------------------------------){ HARAN REALTY LLC, Index No. 104402/04 Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules I 1 -against- 1 DEPARTMENT OF HOUSING, PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Respondent. ----------------------------:-----------------------------------){ EMILY JANE GOODMAN, J.S.C.: I Upon the foregoing papers, it is ordered that this motion by Candace Simmons to be joined as a petitioner in this action pursuant to CPLR § 1001 or CPLR § 1002, is granted. 1 Respondent'~ sole opposition to tµe motion is based on its contention that Ms. I i I Simmons is time barred by the four month statute of limitations governed by CPLR 217. 2 I I It is respondent's burd~n to establish that it provided notice of termination to Ms. Simmons more than four months before commencement of the Article 78 proceeding and I any ambiguity in the ntjtice must be resolved in favor of petitioner (see Matter of Vadell v City of NY Health and Hosp. Corp., 233 AD2d 224 [1st Dept 1996]). In this matter, the I I I, , i 1 The Court denies Ms. Simmons' request to enjoin Haran Realty, LLC. from commencing a non-paYnient proceeding, as 1the request is premature. i I 2 Petitioner has sbbmitted no papers in connection with this motion. I 1 [* 2] notice must also be in writing and contain the information required under CFR 982.555 (a) (2). In support of the argument that Ms. Simmons is time barred, respondent only submits an attorney's 1ffirmation In Opposttion To Proposed Party Petitioner's Motion to I i Join/Intervene. In that ~ffirmation, the attorney relies upon various documents, attached '! to her affirmation, whiqh allegedly terminate Ms. Simmons from the Section 8 program. The attorney contends, fithout having any personal knowledge, that these documents were mailed to Ms. Simmons. Respondent submits no affidavit from the individual(s) I who signed these documents, attesting to how they were allegedly mailed, nor submits an affidavit from someone. with personal k.t1ow~edge of Section 8 mailing procedures. Accordingly, the sworn statement of Ms. Simmons, claiming that she did not receive any of the aforementioned documents, is un-rebutted and therefore, her motion is not time barred (see Matter of Ijbara v City of New York, 300 AD2d 251 [1st Dept 2002] [City ! '1 failed to prove that an ¥tlcle 78 petition was untimely because it failed to rebut owner's sworn statement regar~ng lack of notice by submitting an affidavit from a person with knowledge that a mailiqg occurred, or, an affidavit regarding standard mailing I I I procedures]; see also Matter of Gonzalez, 47 NY2d 922 [1979] [presumption of mailing I does not arise where th~re is no proof that notice was mailed). Moreover, the Nptice of Subsidy Te~nation, dated 8/4/01, based on Ms. Simmons' alleged f ailute to return the re-certification package, could not be the basis for I 2 [* 3] the termination as it is undisputed that further documents were accepted by the agency subsequent to 8/4/01. Further, that notice, and the Notices of Re-certification, could not be the basis for the termination because they do not contain the information required I I under 24 CPR 982.555(a)(2) (see 90-92 Wadsworth Ave. Tenants Assoc. v City of New York, 227 AD2d 331 qst Dept 1997] [whe~e written notice is required, the statutory I I I period of limitations dors not run until notice is received in the requisite form]; Matter of Kaufman v Anker, 66 AD2d 851 [2d Dept 1978] [same]. Also, as Respondent admits, the four month statute of limitations only runs from receipt of an unambiguous agency I determination which aggrieves a petitioner, and does not run where the agency has I created the impression thal lhe determination was inconclusive (see Edmead v. McGuire, - 1 I 67 NY2d 714 [1986]). No one disputes that subsequent to the aforementioned notices, Section 8 paid all rent through 7/31/03 (which Respondent now claims was paid in error), nor that housing inspections continued, creating the impression that benefits were not 1 I 1 I terminated. 3 It is hereby ORDERED that ithe motion of Candace Simmons to intervene is granted; and it is further I 3 Although the Termination of Assistance letter, dated 8/1/03, which advises Ms. Simmons that her Secti~n 8 is terminated retroactive to 3/1102 based on "No Rent Hardship,"stands on different footing than the other documents, Ms. Simmons denied I receiving this notice and Respondent has fai~ed to establish that the 8/1/03 notice was ! actually mailed. I 3 [* 4] ORDERED that the proposed Verified Petition of Intervenor is deemed served upon Respondent, upon service of a copy of this Decision and Order, with Notice of Entry; and it is further ORDERED that Respondent shall answer the Petition within twenty (20) days after I such service; and it is f1µther ORDERED that pie caption is amended to read ---------------------------------------------------------! The Application of HARAN REALTY LLC and CANDAc±E SIMMONS, Index No. 104402/04 1, Petitioners, For a Judgment under Article 78 of the Civil Practice Laws and Rules -againstDEPARTMENT OF HOUSING, PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Respondent. I and it is further i a ORDERED that copy of this Decision and Order shall be served on the office of I I I I • Trial Support (Room 3111) to reflect amen~ent of the caption. I I ! 4 [* 5] This constitutes the Decision and Order of the Court. Dated: November 3, 2004 ENTER: ·-· .. •. \. \ 5

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