Opinion
No. 570003/12.
2012-08-14
Mohamed KHAN, Plaintiff v. CITY OF NEW YORK/SECTION 8, Defendant, and New York City Housing Authority, Defendant–Appellant.
Defendant New York City Housing Authority appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered October 12, 2011, which denied its motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).
Present: TORRES, J.P., SCHOENFELD, SHULMAN, JJ.
PER CURIAM.
Order (Fernando Tapia, J.), entered October 12, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
The action, seeking recovery from defendant New York City Housing Authority of the amount of section 8 housing assistance payments suspended by the agency in connection with the tenancy of a nonparty individual (Cornish), must be dismissed in view of the plaintiff-landlord's demonstrated failure to serve a timely and proper notice of claim upon the agency ( seePublic Housing Law § 157[1] ). Dismissal is also warranted on the merits, since plaintiff failed to allege any actionable misconduct by defendant in connection with its suspension of section 8 benefits ( see generally Burke v. Albert Johnson, Inc., 268 A.D.2d 315 [2000],lv denied95 N.Y.2d 753 [2000] ). The underlying administrative determination rendered by defendant in due course was reviewable only by way of a CPLR article 78 proceeding.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.