Matter of Jewish Assn. for Servs. for the Aged v Rhea

[*1] Matter of Jewish Assn. for Servs. for the Aged v Rhea 2012 NY Slip Op 52347(U) Decided on December 20, 2012 Supreme Court, New York County Bluth, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 20, 2012
Supreme Court, New York County

In the Matter of the Application of Jewish Association for Services for the Aged, Community Guardian Program, as Guardian for Sol Rodriguez, Petitioner,

against

John B. Rhea, as Chairperson and Member of the New York City Housing Authority, and the New York City Housing Authority, Respondents.



400591/12



For petitioner: Manhattan Legal Services

For respondent: NYC Housing Authority

Office of the General Counsel

Arlene P. Bluth, J.

Petitioner's Article 81 guardian, which is represented by counsel, commenced this Article 78 proceeding to challenge respondent New York City Housing Authority's ("NYCHA") August 19, 2009 Determination of Status which reversed the disposition of the hearing officer (probation) and instead terminated petitioner's tenancy. The charge was non-desirability and based on petitioner's unlawful possession of crack cocaine and drug paraphernalia. NYCHA cross-moves to dismiss the proceeding on the grounds that it time-barred. NYCHA asserts that the statute of limitations began to run on September 2, 2009; this proceeding was not commenced until March 2012. For the reasons set forth below, NYCHA's cross-motion is granted, the petition is denied and the proceeding is dismissed.

The four month statute of limitations governing Article 78 proceedings which challenge an administrative determination begins to run on the date the determination becomes "final and binding" upon the petitioner, which is the date petitioner receives notice of the decision. See CPLR §217(1); Matter of Metropolitan Museum Historic District Coalition v De Montebello, 20AD3d 28, 796 NYS2d 64 (1st Dept 2005).

NYCHA submits two employee affidavits which describe how the August 19, 2009 [*2]Determination was mailed to petitioner and her guardian ad litem. First, Raisa Arias, a Hearing Office employee, states that in accordance with her office's regular business practice, on August 28, 2009 she placed a copy of the subject Determination of Status and Board Override Memorandum, one to petitioner and one to Daniel Remine, petitioner's guardian ad litem in the administrative proceeding, in window envelopes, folded them so the addressee's name and address were visible through the windows, and placed them in the box where outgoing mail was picked up every day by NYCHA's Mail Center employees. Annexed as exhibit 2 to Ms. Arias's affidavit is a copy of the computer screen where she entered this mailing date into the database.

NYCHA also submits the affidavit of Shawn Younger, administrative manager of the Mail Center, who states that in August 2009 it was the practice of Mail Center employees to pick up mail designated for post office delivery from the "outgoing mail" box in the Hearing Office, imprint the envelopes with the proper postage, and place the mail in a USPS receptacle within one business day of pick up from the Hearing Office. Read together, these affidavits of service upon petitioner and Mr. Remine establish of presumption of delivery of the Determination. There is also a presumption that regular mail is received within five (5) days of mailing, in this case, September 2, 2009; see CPLR §2103(b)(2).

However, in her Verified Petition (para. 32), petitioner claims that she "never saw a copy of the [Determination] and did not even know that she had been terminated until she was brought to court on a holdover proceeding brought by Notice of Petition and Petition dated November 13, 2009". The Court notes that petitioner does not claim that Mr. Remine failed to tell her about the Determination and/or that he failed to advise her to take further action. Notably, petitioner does not submit any affidavit from Mr. Remine in support of her petition and so he does not deny receipt, deny communicating the decision to her or otherwise corroborate petitioner's submission.

In any event, petitioner admits that she knew about the Determination "when she was brought to court". The Housing Court file, reviewed by this Court, shows that Judge Halperin appointed Arnold Gittell, Esq. as petitioner's guardian ad litem in that holdover proceeding on October 29, 2010. On November 19, 2010 petitioner and Mr. Gittell appeared in court before Judge Schneider and signed a stipulation adjourning the case and permitted NYCHA to accept rent without prejudice. Accordingly, this Court finds that the statute of limitations began running, at the latest, on November 19, 2010; thereafter, petitioner had four months from that date to commence an Article 78 proceeding — March 19, 2011. Petitioner did not commence this proceeding until one year later, in March 2012.

In opposition to the cross-motion to dismiss, petitioner requests that "....it be found that my severe disabilities rendered me "insane" so as to prevent the running of the statute of limitations until I was appointed an Article 81 guardian [order filed October 2011] who was competent to understand and manage my legal affairs and assert my rights"(aff. in opp., para. 19).

The burden is on the petitioner to establish an applicable exception to the statute of limitations. See Santo B. v Roman Catholic Archdiocese of New York, 51 AD3d 956, 957, 861 NYS2d 674 (2d Dept 2008). As the court recently stated in Gray v Hernandez, 22 Misc 3d 678, 684, 868 NYS2d 500, 504-505 (Sup Ct, NY County 2008):

The Court of Appeals has held that the insanity toll applies only to individuals who are able to prove that they were incapable of protecting their legal rights when their causes of action accrued because of an overall inability to function in society. Cerami v City of Rochester School [*3]Dist., 82 NY2d 809, 604 NYS2d 543 (1993) (emphasis supplied); McCarthy v Volkswagen of America, Inc., 55 NY2d 543, 450 NYS2d 457 (1982).

Here, the cause of action accrued on November 19, 2010 when petitioner admits she learned of the Determination when she appeared in housing court with her guardian ad litem. In her affidavit in opposition to NYCHA's cross-motion to dismiss, petitioner states that she suffers from various psychiatric disorders (aff., para. 5), and refers to Dr. Rebecca Jones's September 21, 2010 psychiatric evaluation report (exh B to petition). In that report, Dr. Jones states that she was there to evaluate petitioner due to an eviction case related to drugs and the report makes clear that petitioner knew about that case, too. This was not the first time Dr. Jones evaluated petitioner; Dr. Jones had also seen petitioner in 2005 (regarding another unrelated housing court case).

Dr. Jones noted that petitioner had "clear intellectual impairment" but was dressed nicely and with good hygiene and grooming ("much better than in 2005"). She states that petitioner looked better physically than she did in 2005 and that her affect during this evaluation was "full and appropriate to content. " Dr. Jones further indicated that petitioner had family support from her two daughters and a son, was regularly attending a substance abuse treatment program, was "clean" for five months, was under the care of psychiatrist and on medication.

Interestingly, in her recommendations, Dr. Jones suggested a guardian ad litem for the housing court case and then wrote "refer to OLA [FN1]: Article 81 Guardian contingent upon if eviction not averted, for relocation to prevent homelessness." (p. 4 of 5). She also wrote "if evicted, appropriate for supportive/structured housing". Of course, the eviction was not averted in housing court and an Article 81 proceeding was brought.

This Court finds very significant that Dr. Jones's September 2010 evaluation does not even come close to finding petitioner to be "insane" or incapable of functioning in society. She did not at that time suggest an Article 81 Guardian. It is abundantly clear that Dr. Jones only suggested an Article 81 Guardian if petitioner lost the housing court case, and then it would only be to get time to relocate petitioner and "prevent homelessness". Dr. Jones did not indicate a worsening condition (actually, Dr. Jones observed petitioner was better than the last time she was evaluated) and did not even recommend any follow-up evaluation. There is no indication whatsoever that Dr. Jones actually thought an Article 81 Guardian was or would be necessary due to petitioner's mental state. Rather, Dr. Jones, acting as a litigation strategist as well as a psychiatrist, saved the "big guns" (an Article 81 Guardian) only if petitioner lost the housing court case and only to get more time — and not because she actually needed it for medical reasons.

Attached to petitioner's affidavit (but not mentioned) are two additional exhibits: (1) a July 21, 2010 intake report from St. Mark's Place Institute for Mental Health (exh A), and (2) an August 12, 2010 Mental Status Examination from the same facility, indicating that petitioner's abstract thinking and concentration were good, her intelligence was within normal limits, her judgment was intact in ordinary social situations, and her insight was within normal limits.

Petitioner has submitted three medical evaluations - one each in July, August and [*4]September — four months, three months and two months before the latest possible date that the statute of limitations began to run (November 2010). In none of those evaluations was there any indication that petitioner was unable to function in society. Rather, the reports demonstrated that, while petitioner may not be smart and she may be forgetful, by seeking psychiatric and psychological counseling for depression, drug abuse and other disorders, as millions of people do, she was able to function in society.

Petitioner has not submitted any proof that her condition(s) worsened after November 19, 2010. In fact, she does not submit anything about her psychiatric condition during the time period that the statute of limitations was running (November 2010 - March 2011). Based on the foregoing, the Court finds that petitioner has not met her burden of proof and has not demonstrated that she was unable to function in society on November 19, 2010 or for the four months thereafter. Therefore, petitioner has shown no reason to toll the statute of limitations.[FN2]

For all the forgoing reasons, this Court finds that this proceeding is barred by the four month statute of limitations applicable to Article 78 proceedings. At the latest, the statute of limitations began running on November 19, 2010 and this proceeding was not commenced within four months from that date, on or before March 19, 2011. Instead, this proceeding was commenced on March 14, 2012, approximately one year after the statute of limitations expired.

Accordingly, it is hereby ORDERED and ADJUDGED that the cross-motion to dismiss the petition is granted and the proceeding is dismissed as time-barred. Any stays issued by this Court are vacated.

This is the Decision, Order and Judgment of the Court.

Dated: December 20, 2012

New York, New York



HON. ARLENE P. BLUTH, JSC Footnotes

Footnote 1:Presumably OLA refers to Office of Legal Affairs

Footnote 2: November 2010 - March 2011 is the relevant time frame. The statute of limitations was not tolled when petitioner was appointed an Article 81 guardian (in October 2011) as petitioner's counsel argues; it had already expired seven months earlier.