Opinion
402656/2009.
January 13, 2010.
DECISION/ORDER
MEMORANDUM DECISION
Petitioner Raquel Lewis (petitioner) moves for an order and judgment annulling the decision of the respondent New York City Housing Authority (NYCHA) which denied petitioner's application to reopen her default in appearing at an administrative hearing to terminate her tenancy on charges of chronic rent delinquency, violation of NYCHA's pet policy, and violation of probation.
NYCHA cross moves for an order dismissing the Verified Petition pursuant to CPLR 3211(a)(5) arguing that petitioner's claims are barred by the statute of limitations.
Background
Petitioner was the tenant of record of apartment 4E at 1780 Madison Avenue in Manhattan, which was part of the Milbank-Frawtey (now Taft Houses) development owned and operated by NYCHA. In March 2003, NYPD executed a search warrant in petitioner's apartment, recovered evidence of illegal drug trafficking, and arrested Andrew Bjorntzen (Mr. Bjorntzen), an unauthorized occupant of petitioner's apartment, for possession of controlled substances with the intent to sell. This resulted in petitioner agreeing to settle charges brought against her by NYCHA with a three-year probationary period and a permanent exclusion of Mr. Bjorntzen from her apartment.
During her probationary period, petitioner became chronically delinquent in her payment of rent. Further, in March 2007, a pit bull belonging to petitioner was found unleashed within the apartment building's grounds, and a police officer killed the dog. Petitioner had failed to register the dog in violation of NYCHA's pet policy. After petitioner met with NYCHA management in response to a call-in letter, NYCHA notified petitioner it had scheduled a termination-of-tenancy hearing based on charges she violated her probation, violated the pet policy, and chronically had failed to timely pay rent between April 2006 and March 2007.
The hearing was adjourned and ultimately scheduled for January 8, 2008. Petitioner failed to appear at the hearing scheduled for January 8, 2008. By decision dated January 9, 2008, the Hearing Officer sustained the charges and concluded termination of tenancy was warranted. NYCHA's Board adopted the Hearing Officer's decision, issuing a determination terminating petitioner's tenancy. Petitioner applied to vacate her default, and NYCHA opposed petitioner's application. NYCHA mailed the Hearing Officer's decision to petitioner on the same day the Hearing Officer issued it, April 10, 2008.
Petitioner commenced this Article 78 proceeding on or about October 21, 2009. Petitioner's Contentions
Petitioner's argues only that all of the arrears have been paid.
Respondent's Contentions
Petitioner's claims are time barred under the four-month statute of limitations applicable to this proceeding because petitioner commenced this proceeding more than 18 months after she received NYCHA's final and binding determination terminating her tenancy and more than 14 months after the expiration of the statute of limitations.
Discussion
An article 78 proceeding must be commenced within four months after the administrative determination to be reviewed becomes "final and binding upon the petitioner" ( Yarbough v Franco, 95 N.Y.2d 342, 717 N.Y.S.2d 79; CPLR 217; New York State Assn. of Counties v Axelrod, 78 NY2d 158, 165, 573 NYS2d 25, 577 N.E.2d 16). An administrative determination becomes "final and binding" when the petitioner seeking review has been aggrieved by it. An administrative action is not final and binding within the contemplation of CPLR 217 until it "has its impact" upon the petitioner ( Bludson v Popolizio, 166 AD2d 346, 347, 561 N.Y.S.2d 14 [ Dept 1990], citing Matter of Edmead v McGuire, 67 NY2d 714, 716, 499 NYS2d 934, 490 NE2d 853). The Statute of Limitations does not begin to run until the petitioner receives notice of the determination ( Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832, 834, 470 NYS2d 130, 458 NE2d 371).
In the instant case, petitioner should have commenced this Article 78 proceeding by August 15, 2008, at the latest. Petitioner failed to commence this proceeding until October 21, 2009, over 14 months after the expiration of the statute of limitations. As such, this proceeding is untimely, and must be dismissed.
Conclusion
Based on the foregoing, it is hereby\
ORDERED and ADJUDGED that the application of petitioner Raquel Lewis, for an order and judgment annulling the decision of the respondent New York City Housing Authority, is denied in its entirety. And it is further
ORDERED and ADJUDGED that the cross motion of respondent New York City Housing Authority to dismiss the Verified Petition is granted, and the Verified Petition herein is dismissed. And it is further
ORDERED that counsel for respondent shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry on petitioner.