Opinion
7865/09.
Decided October 23, 2009.
STERN STERN, BROOKLYN, NEW YORK, ATTORNEYS FOR THE PETITIONER.
MICHAEL A. CARDOZO, ESQ., BY: ELIZABETH A. FLESHER, ESQ., CORPORATION COUNSEL OF THE CITY OF NEW YORK, NEW YORK, NEW YORK, ATTORNEYS FOR RESPONDENT.
Petitioner, Greene Residence LLC, commenced this Article 78 proceeding to vacate Emergency Repair Liens asserted by respondent, New York City Department of Housing Preservation and Development (HPD) upon the premises located at 1422, Greene Avenue, Brooklyn, NY (subject premises). Respondent cross-moves to dismiss the petition with respect to seven of the eight liens on the grounds that the petition is time-barred pursuant to the statute of limitations (CPLR Section 217).
Background
Petitioner purchased the subject premises on March 14, 2008.
In October 2004, years prior to the petitioner's purchase, a 7-A administrator was appointed to manage the subject premises. Pursuant to the Court Order, the subject premises was rehabilitated and rehabilitation liens were entered against the subject premises to cover the costs of work done on the subject premises.
With the financial assistance of the HPD 7A Programs, the 7-A administrator hired contractors to carry out extensive systems repairs and replacements and violation removal at the subject premises. Three hundred and five violations were corrected by the 7-A administrator leaving only 36 violations on record.
The work that was completed pursuant to the court order on the subject premises under the 7-A administrator was approved by HPD on February 28, 2006. On that date work orders were approved by HPD and entered in HPD records pursuant to NYC Administrative Code § 27-2144. Once these work orders are entered into HPD records, notice of such work orders is available to the public through HPD's website, HPD ONLINE. When the owner of the subject premises failed to pay this amount by the due date, a lien was entered against the subject premises and interest began to accrue.
Richard Reiskin (Reisken), the manager of the Department of Finance's Billing Management Unit averred in his affidavit, in pertinent part, that:
"At this time, there are eight outstanding Financial Aid Liens imposed against the property. Details of these liens are set forth below
. . .
5. On or about June 9, 2006, a Statement of Account showing new charges in the amount of $22,095 for a Housing-Financial Aid Lien was generated and mailed to the subject premises. Payment of this amount was due on July 1, 2006.
6. On or about September 1, 2006 a Statement of Account showing new charges in the amount of $21,172 for a Housing-Financial Aid Lien was generated and mailed to the subject premises. Payment of this amount was due on October 2, 2006.
7. On or about June 15, 2007, a Statement of Account showing new charges in the amount of $15,121.00 for a Housing-Financial Aid Lien was generated and mailed to the subject premises. Payment of this amount was due on July 1, 2007.
8. On or about June 15, 2007, a Statement of Account showing new charges in the amount of $4,500 for a Housing-Financial Aid Lien was generated and mailed to the subject premises. Payment of this amount was due on July 1, 2008.
9. On or about February 22, 2008, a Statement of Account showing new charges in the amount of $75,105.00 for a Housing-Financial Aid Lien was generated and mailed to the premises. Payment of this amount was due on April 1, 2008.
10. On or about February 22, 2008, a Statement of Account showing new charges in the amount of $62,959.00 for a Housing-Financial Aid Lien was generated and mailed to the subject premises. Payment of this amount was due on April 1, 2008.
11. On or about August 22, 2008, a Statement of Account showing new charges in the amount of $126,835.00 for a Housing-Financial Aid Lien was generated and mailed to the subject premises. Payment of this amount was due on October 1, 2008.
12. On or about December 19, 2008, a Statement of Account showing new charges in the amount of $24,619.00 for a Housing-Financial Aid Lien was generated and mailed to the subject premises. Payment of this amount was due on January 1, 2009.
13. Subsequent to the Initial Charge Notices, petitioner was advised of the outstanding charges in each of the quarterly statements of account, generated and mailed to Greene Residence LLC, at the above-referenced address, on or about the following dates: June 13, 2008, August 22, 2008, December 19, 2008, February 22, 2009, and June 6, 2009."
In April of 2008, petitioner filed an Order to Show Cause in Housing Court requesting the removal of the 7-A administrator of 1422 Greene Avenue.
On March 3, 2009, the 7A administrator of the subject premises was discharged by Order of the Civil Court of Kings County.
On April 1, 2009, petitioner commenced this Article 78 proceeding.
Discussion
CPLR Section 217(1) provides in pertinent part that:
"a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact",
Thus, respondent argues that petitioner is time barred from contesting any lien that was the result of a determination made prior to December 1, 2008. "An administrative determination is final and binding so as to commence the running of the Statute of Limitations when the petitioner has received notice of the determination and is aggrieved by it" ( Matter of Robertson v Board of Educ. of City of NY, 175 AD2d 836 [2d Dept 1991]; citing Matter of Biondo v. New York State Bd. of Parole, 60 NY2d 832, 470 N.Y.S.2d 130; Matter of Cauldwest Realty Corp. v. City of New York, 160 AD2d 489 [1st Dept 1990]). In the context of an Administrative Code lien, the statute of limitations begins to run when the owner is billed ( Matter of 105th St. Dev. Corp. v Commissioner of Dept. of Health of City of NY, 189 Misc 2d 342, 345 [Sup Ct, New York County 2001]). In the instant case, petitioner challenges the sufficiency of the notice.
The Court of Appeals has ruled that "notice by mail is a constitutional precondition to a proceeding that will adversely affect the property interest of any party whose name and address are reasonably ascertainable" ( Matter of ISCA Enters. v City of New York, 77 NY2d 688, 699). However, "actual notice is not always required, and that the key consideration is whether the notification procedures employed are reasonable in view of all the circumstances" ( Matter of Zaccaro v Cahill, 100 NY2d 884, 891). Furthermore, a property owner bears some responsibility for keeping its address up to date ( id.). The burden of proving the statute of limitations defense is on the party asserting it ( Berkshire Nursing Ctr., Inc. v Novello , 13 AD3d 327 , 328 [2nd Dept 2004]).
With respect to the liens incurred prior to petitioner's purchase of the property, petitioner stands in the shoes of its predecessor. Reisken avers that, prior to the sale, the "Initial Charge Notices" were "mailed to the subject premises." Reisken does not, however, state to whom the notices were addressed. Because the respondent has failed to state to whom the notices were addressed, respondent has failed to show that the notification procedures were reasonable.
Reisken also avers that "Quarterly Statements of Account were sent to the subject premises prior to this date, however, these notices were addressed to the entity that owned the property at that time and not to petitioner." Reisken does not provide the dates on which these quarterly statements were mailed; thus, they are not sufficient to establish the date of mailing for statute of limitations purposes.
Reisken does aver that quarterly statements were mailed to petitioner at the subject premises on June, 13, 2008, August 22, 2008, December 19, 2008, February 22, 2009, and June 6, 2009. Petitioner, however, argues in its affirmation that, "Petitioner, pursuant to the rules and regulations promulgated by Respondent registered its mailing address with Respondent at 199 Lee Avenue No. 308 Brooklyn, NY 11211." Mailing the statements to the subject premises is not a reasonable procedure when a different mailing address is on file with respondent. Respondent argues that it has no record of the 199 Lee Avenue address and submits a computer printout. This is insufficient to rebut petitioner's claim that 199 Lee Avenue was the registered mailing address. Accordingly, the respondent has failed to meet its burden of establishing that this proceeding was not commenced within four months of the petitioner being notified.
Conclusion
Based on the foregoing, the respondent's motion to dismiss the petition with respect to seven of the eight liens on the grounds that it is time-barred pursuant to the statute of limitations is denied.
The Respondent shall answer the Petition within thirty days.
This constitutes the Decision and Order of the Court.