Matter of Sedgwick Mgt., LLC v New York City Hous. Auth.

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Matter of Sedgwick Mgt., LLC v New York City Hous. Auth. 2013 NY Slip Op 32029(U) August 28, 2013 Sup Ct, New York County Docket Number: 104532/12 Judge: Peter H. Moulton 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] SCANNED ON 813011"' Justice - - Index Number : 104532/2012 SEDGWICK MANAGEMENT LLC INDEX NO. vs . MOTION DATE NYC HOUSING AUTHORITY SEQUENCE NUMBER : 001 - MOTION SEQ. NO. ARTICLE 78 , were read on this motion tolfor The following papers, numbered 1 to Notice of MotioniOrder bo Show Cause Answering Affidavits - Affidavits -Exhibits - Exhibits MQ(S). Replying Affidavits Upon the f Q ~ papers,~ is ordered ~ ~ ~ it ~ i that this Dated: 1. CHECK ONE: -/& N+). 7 8 p&&&&%# .c. / ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK MO(S). ........................... MOTION I : S IF APPROPRIATE: ................................................ &CASE D i § P O S E z GRANTED 0SETTLE ORDER 0DO MOT POST 0 MON-FINAL DISPOSIT!ON 0GRANTED IN PART OTHER 0SUBMIT ORDER 0FlDUCl V!Y APPOINTMENT 0REFERENCE ENlED [* 2] SUPREME COURT OF THE COUNTY OF NEW YORK: - _ - - - - - - - In the Matter of the SEDGWICK MANAGEMENT, STATE OF NEW YORK PART 4 0 B _ _ _ _ _ - _ - -X_ Application of Index No. LLC 104532/12 Petitioner, / For a Judgment Pursuant to Article 7 8 of the Civil Practice Law and Rules, -againstNEW YORK CITY HOUSING AUTHORITHhkjudgrne and notice obtai e try, counsel or authotize$repfesm@bw m Rs&* eRFp rsori at the Judgment Clerk s Dee& (Raam 1.1.1 w. . . . . . . . . . . . . . . . . . . . . -X . PETER H. MOULTON, J. S C . : Petitioner, a landlord, brings this Article 7 8 proceeding to reverse the decision of respondent New York City Housing Authority ( NYCHA ) to terminate two section 8 subsidies after the apartments occupied by Evelin Castillo and Antonia Martell failed to meet federal housing quality standards ( HQS ) . seeks to recoup November $26,410.09 1, 2011 Petitioner for rental payments for the period through August, 2012. The claim asserted concerning Edwin Rodriquez s apartment was withdrawn by email dated July 1, 2013. Respondent barred. cross moves Respondent to maintains dismiss that the petition petitioner as time should have commenced this action within four months of November 1, 2011, when respondent maintains petitioner knew or should have known that the subsidies were suspended. Thus, respondent asserts that this [* 3] proceeding, wnicn was commenced more than one year after termination of the subsidies, is untimely. Respondent attaches a copy of a letter addressed to petitioner, dated September 12, 2011, notifying petitioner that apartment 3 F at 2800 Sedgwick Avenue needed repair of "uneven floor-severe." The notice also provided that the repairs must be made and verified by respondent, or respondent would take action to terminate the subsidy on October 12, 2011. Respondent also attaches copy of a letter addressed to petitioner, dated September 7, 2011, notifying petitioner that apartment 4 E at 2 8 0 0 Sedgwick Avenue needed repair of windows. The notice also provided that the repairs must be made and verified by respondent, or respondent would take action to terminate the subsidy on October 7, 2011. Respondent attaches the affidavit of Joseph Lamarca, the Deputy Director of the General Services Department. He attests to to the general business practices of mailing NE-1 notices within one business date of the date indicated on the notice, from respondent's mail center. The notices provided in relevant part: action to suspend subsidy on are properly notified (see below) that appropriate repairs have been made and we verify these corrective measures. [Wle will take 09/09/2011, unless we They further provided: 2 [* 4] FAILURE TO COMPLETE REPAIRS AND HAVE THE AUTHORITY VERIFY THAT THE REPAIRS ARE DONE WITHIN 30 DAYS AFTER THE INSPECTION SHALL RESULT IN SUSPENSION OF SUBSIDY. REINSTATEMENT OF SUBSIDY WILL NOT BE CONSIDERED UNTIL WE RECEIVE AND ACCEPT THE CERTIFICATION, OR UNTIL WE RECEIVE NOTIFICATION OF COMPLETED REPAIRS FROM YOU AND WE REINSPECT THE APARTMENT TO DETERMINE THAT THE UNIT AGAIN COMPLIES WITH HQS. In opposition to the cross motion, petitioner contends that the agency should be limitations because of estopped from asserting the misrepresentations which delayed the filing of this proceeding. 'Petitioner's petitioner's made by statute of respondent, Petitioner attaches call logs" and the affidavit of Keyoumars Keypour, managing agent. Petitioner does not explain who prepared the typed written logs. The logs reflect communication commencing only in February, 2012-more than three months after the payments were stopped. The logs also do not reflect that the petitioner was told to "wait for the subsidy to be restored" as asserted by Keypour. Keypour never states that he was personally told to wait, although he asserts that both ke and ' i i hs office" made sent a the calls. Keypour also asserts that petitioner certification attesting to correction of the HQS September 29, 2011 for apartment 3 F. cover sheet addressed to an violations on He attaches a facsimile unidentified 'fax number, dated September 30, 2011, which indicates that only one page was sent, 3 [* 5] which appears to be che first page of the NE-1 notice for apartment 3 F. In reply, respondent notes that estoppel is generally unavailable against a government agency and that petitioner failed to establish that an extraordinary situation existed which would permit deviation from the general rule. Respondent points to the lack of foundation for the call logs as a business record and the lack of specificity as to nature of the misrepresentations. Respondent also maintains that it would not be reasonable to rely on statements of "low-level employees" citing Matter of Cahill (Rowan Group Inc.-Commissioner of Labor) 2010]), among other cases. (79 AD3d 1 5 1 4 [3d Dept Respondent further notes that requests for reconsideration do not toll the statute of limitations, citing Matter of Hurwitz v N e w York C i t y Hous. Auth. [lst Dept 20121 [a Section ["requests for extension and/or reinstatement of voucher. . 81 ( 9 2 AD3d 884, 885 . did not serve to, toll or otherwise extend the four-month statute of limitations"1). Discussion Federal law prohibits respondent from making any payment to a landlord for a HQS violation which was not certified as repaired (see 24 CFR yj 982.404 (a) [[le 'th (3) PHA must not make any housing assistance payments for a dwelling unit that fails to meet 4 [* 6] the HQS, unless the owner corrects the defect within tne period specified by the PHA and the PHA verifies the correction])." CPLR officer article must be 78 proceedings commenced against a public within four months "body or after the determination to be reviewed becomes final and binding" (CPLR 217 [l]). agency determination is final when the petitioner is An aggrieved by the determination (see Matter of B i o n d o v New York State B d . of Parole, 6 0 NY2d 832, 834 [1983]). aggrieved once decision that the puts agency the has issued an petitioner on A petitioner is unambiguously notice that final all administrative appeals have been exhausted; any ambiguity created by the agency as to whether the decision is final and binding is resolved against the agency (see Matter of Carter v State of N . Y . , Exec. Dept., D i v . of Parole, 9 5 NY2d 267 [ 2 0 0 0 1 ) . Petitioner failed to establish that an extraordinary situation existed which would permit the court to deviate from the general rule that estoppel cannot be applied against an agency. Even if petitioner had demonstrated sufficient foundation for the call logs, the logs only reflect that two calls were made prior to the expiration of the statute of limitations. These entries only reflect that the inspector was not given access and the inspection was rescheduled. The entries do not reflect ,any statement that petitioner was told to wait (nor do later entries reflect such a statement). 5 [* 7] Keypour s affidavit is vague and lacks sufficient detail. Keypour never states that he was told to wait nor the date(s) when he (or his office) was so told. Moreover, petitioner has not established that it would be reasonable for a large landlord to delay filing an article 7 8 after receipt of NE-1 notices. It appears that petitioner s unstated argument is that the agency did not alert petitioner to the need to file an article when 78 petitioner and respondent discussed new inspection dates. Further, petitioner has not established that it faxed respondent a certification, signed by both the landlord and the tenant, attesting to the completion of the repairs, which is basis to restore a subsidy terminated for non-compliance with HQS. Not only does petitioner fail to establish that the fax was sent to respondent, as opposed to some other person or entity, petitioner fails to demonstrate what was faxed. At some point before the expiration of the statute of limitations and after receipt of the NE-1 notices, petitioner knew or should have known that the November subsidy payments amounts different than the previous month. for Thus, petitioner either knew or should have known that it was aggrieved at some point before the expiration of the statute of limitations in February, 2011 ( s e e Matter of Baloy v Kelly, 92 AD3d 521 [lst Dept 20121 [letter denying application for gun license was final and binding for the purposes of the four month statute of limitations 6 [* 8] because petitioner knew or should have known that he was aggrieved by it11 . can be Petitioner has not established that federal requirements ignored because of its own lackadaisical attempts to rectify termination of the subsidies. Accordingly, it is ORDERED that cross motion to dismiss the petition as time barred is granted, without costs and disbursements; and it is further ADJUDGED that the petition is denied as untimely and the proceeding is dismissed. This Constitutes Court the Decision, Order . Dated: August 28, 2013 ENTER : 7 and Judgment of the

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