Quintana v New York City Hous. Auth.

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Quintana v New York City Hous. Auth. 2012 NY Slip Op 32959(U) December 10, 2012 Sup Ct, New York County Docket Number: 401516/12 Judge: Arlene P. Bluth 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 I211712012 [* 1] NYC HOUSING AUTHORITY SEQUENCE NUMBER : 001 " X 2. CHECK AS APPROPRIATE: ........................... f .. . .I . MOTION IS: [* 2] SUI IlICME COURT OF THE STATE OF NY COUNTY OF NEW YORK: YAII I 4 In thc Matter of the Application of Diana Quintana, liidex No.: 401516/12 DECISION, ORDER Petitioner, AND JUDGMENT -rrgainstPresent: HON. ARLENE P. BL1Jl l-I Ncw York City Housing Authority, Respondent. Petitioner, self-represented, commenced this Article 78 proceeding to challenge respondent New York City Housing Authority s ( NYCHA ) March 5 , 20 1 0 determination wherein Hearing Officer Anibert denied petitioner s application to vacatc her July 21, 2009 default. I laving already vacated a prior defkult, the Court notes that this .luly datc was her sccond scheduled hearing on hcr tcriniiiatioii-of-tenancy charges bascd on chronic rent delinquency. I Icr application to vacatc that JUIY 2009 default, made over seven months after her default, was dciiied because the licaring oftjccr fourid that pctitioner failed to show both ; reasonable cxcusc and a I meritorious d e h s e . NYCHA cross-imovcs to dismiss thc petition on thc grounds that the proceeding is barrcd by the Statute of Limitations. For thc reasons sct forth bclow, NYCHA s cross-motion is grantcd, the petition is denied and tlic procccdiiig is dismissed. The four month statutc of limitations governing Article 78 proceedings which challenge an administrative dctcrinination begins to run on the date the detcniiination becomes final and binding upon the petitioncr, which is thc date petitioner receives noticc of the decision. Sec CPLR 52 17( 1); Mutter q f k f c f r o p d i f m Museum I ¬ixlczric Dislrict Coalilion v De Montehello, 20AD3d 28, 796 NYS2d 64 ( 1 st Dcpt 2005). Page 1 of 4 [* 3] I Icre, NYC HA submits two employee affidavits which, wlicn read together, dcscribe how the March 5,2010 determination was mailed to petitioner. First, Shannon Hollcy, a liearing Ofiice employee, states that in accordance with her oilice s regular business practice, on March 5, 201 0 slic placcd a copy ofthe Hearing Officer Anibcrt s decision in an envelope:,folded it so that pctitioncr s nainc and address were visiblc through the window in thc envclopc:, and placed it in the box ,whcrc outgoing inail was picked up cvery day by NYClIA s Mail Center employees. Annexed as exhibit 2 to Ms. Hollcy s affidavit is a copy of thc administrative history where she notcd that on March 5 , 2010 she mailed the decision denying petitioner s application to opcii her July 2 I , 2009 default, which was the second time she defiulted. NYCl IA also submits the aft idavit of Shawn Younger, administrative manager ofthe Mail Center, who states that in March 20 10 it was the practice of Mail Center employees to pick up mail designated for post office delivery from a box in thc I Icariiig Oftlce labeled outgoing mail , iimprint the envelopes with the proper postage, and placc the mail in a LJSPS receptacle within one business day of pick up from the Hearing Ollice. There is a presumption that regular mail is rcccivcd within live (5) days ol iiiailing, in this case, March 11,2010; se c CPLR $2103(b)(2). Pctitioncr docs not deny receipt d t h e March 5 , 2010 dccision declining lo vacate the July 21, 2009 dcfault, which was her secoiid default; in fact, she attachcd it to exhibit A of her petition. Accordingly, NYCHA has established its mailing of Hearing Officer Anibcrt s March 5 , 20 10 decision, arid that petitioner rcceived it; petitioner has not denied that she receivcd it. Thcrcforc, the four month statute of limitations to commence an Article 78 proceeding challcnging this determination expired four months alter March I I , 201 0, which was Jiily 1 1 201 0. Pctitioiicr did not commenced this Articlc 78 proceeding until July 10, Page 2 of 4 [* 4] 2012, whcn she filed her petition, approximately two ycars after the statute of limitatioiis cxpircd. In her petition (para. 3j, petitioner claims that she has a mental history which datcs back fbur to fivc ycars. She annexes to her petition (1 j a .lune 28, 2012 letter fkom thc Roberto Clcmcnte Family Guidance Centcr which states that petitioner has becii sccn there since April 26, 2012, (2) a psychiatric evaluation report dated J~ine 24,201 1, and (3) several reports following appointments at thc Ryan Center for thc period June 8 through October 28, 2010 (exh Bj. To the extcnt that petitioner seeks to toll the statue of limitations based on allegcd insanity, this argument fai Is. Here, petitioner has asserted that she had extremely justifiable reasons [or not appearing for Lher] hearings and shc thinks it is only right that her defaults be vacated and for her case to go back ....to be tried and heard again . Finally, petitioner asks that this Court make ncccssary inquiries and rcquests for more medical asscssinents h m her scrvicc providers (petition, para. 3). Howevcr, tlie burdcn is on the petitioner to establish an applicablc exception to the statutc of limitations. See Sunto R. v Rumirn Cutholic Archdiocese o f N e w Ynrk, 5 1 AD3d 956, 957, 861 NYS2d 674 (2d Dept ZOOS). As tlic court recently stated in Gruy v IJemnndez, 22 Misc.3d 678, 684, 868 NYS2d 500, 504-505 (Sup Ct, N Y County 2008): The C ourl of Appcals has held that the insanity toll applies only to individuals who are able to prove that tlicy were incapable of protecting their legal rights when their causes o l action accrued because of an ovcrall inability to hnction in society. (- emmiv Cily of Hochclstcr School Dist., 82 NY2d 809, 604 N Y S2d 543 ( I 993); McCbrihy v Volkswugen cfAmericw, Inc., 55 NY2d 543,450 NYS2d 457 (1 982) . 1 On lleceinbcr 28, 201 I , iiiore than one year after NYCJIA notified petitioner of the ITcariiig Officer s decision, petitioner submitted a second request to opcn hcr July 2009 default. By lettcr dated June 7, 20 12, Hearing Officer Anibe1-t indicatcd that the March 5, 2010 decision remained unchanged and that any further action would need to take place in the appropriate judicial forurn. Petitioner cannot extend the statule of limitations merely by tiling another request to vacate the same default. Page 3 of 4 [* 5] Here, petitioncr has not claimcd, much lcss demonstrated, that she was incapable of protccting her rights when the cause olaction accrued, March 11,2010 through July 11,2010. In fact, on 1)cccinbcr 28, 201 1 she attempted to get a second bitc at the apple by bringing a second application to open her second default, which was subscquently denied. Nor has petitioner demonstrated that by seeking psychiatric and psychological counseling for depression and other disorders, as millions of people do, she was unable to liinction in socicty. Additionally, her statement that she did not have a guardian ad litem for her case is unavailing; shc could have requested such an appointnicnt had she appeared on the noticed hcaring datc and has not othcrwisc shown an eiititlcnicnt thereto. Finally, the October 4, 20 12 letter from thc Roberto Clcment Center, submitted as a rcply, which states that petitioner rcceivcd trcatinent for a stress disordcr since April 2012 docs not addrcss thc relevant period, March 1 1 through July 11,2010. As such, petitioiicr has not submittcd any evidence that slic is or was under a disability which would toll tlic statute o r limitations pursuant in accordance with CPI,K 208, which is narrowly interprcted. I herefore,the Court Gnds that this proceeding is barrcd by the four month statutc of limitations applicable to Article 78 proceedings. Accordingly, it is hercby ORIll3WD and ADJUDGED that thc cross-motion to dismiss the petition is grantcd and the proceeding is dismissed as time-barrcd. Any stays issued by this Court are vacated. This is the Ikcisioii, Order and Judgrncnt of the Court. fl Dated: lleccmbcr 10,2012 Ncw York, New York HON. ARLENE P. HLUTH, JSC Page 4 of 4

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