Opinion
402195/08.
December 2, 2008.
In this Article 78 proceeding, petitioner challenges the determination of the City of New York Department of Housing Preservation and Development's ("HPD"), dated May 9, 2008, which denied her request for an informal hearing as to the termination of her Section 8 rent subsidy.
Petitioner has resided at 2970 West 27th Street, Apt. 316, Brooklyn, New York, for approximately 25 years, but did not begin receiving a Section 8 rent subsidy until 2004. HPD asserts that as of July 2006, it had not received petitioner's 2007 re-certification package, so on or about July 26, 2006, HPD sent petitioner a "pre-termination notice" that her failure to respond within 15 days could result in the termination of her Section 8 subsidy. HPD alleges that the pre-termination notice was sent to petitioner by both certified and regular mail. It is not disputed that petitioner did not respond to the pre-termination notice. HPD asserts that it then sent petitioner a "termination notice" dated August 21, 2006, by both certified and regular mail. The termination notice advised that petitioner's Section 8 rent subsidy would be terminated as of September 11, 2006, because "you did not return you recertification package." The notice also advised that "|y|ou may appeal this decision at an informal hearing before an impartial HPD staff member" and "you may request an informal hearing by returning the attached form" to HPD within 21 days. The notice staled that the failure to respond within 21 days "will result in termination of your section 8 subsidy as of 9/11/06." It is not disputed that petitioner did not respond to the termination notice, and as a result, her Section 8 subsidy was terminated on September 11, 2006.
Petitioner was receiving a $350 Section 8 rent subsidy toward a total monthly rent of $1,450, and was responsible for paying the balance of $1,100.
On April 15, 2008, petitioner wrote to HPD regarding the termination of her Section 8 subsidy. Petitioner explained that she had been paying her share of the rent, but "received a bill" stating that "I was in arrears for $5,000" and a "few day's later, an eviction notice was pushed under my door with a request to report to Court." Petitioner further explained that she reported to Housing Court on April 8, 2008 with "all of my bank checks attesting that I had paid all of my rent," and at that "time I was presented with a bill and informed" by the landlord's attorney "that the Section 8 program had not made their contribution because 1 had not recertified. I informed him that I had not received a recertification letter." Petitioner stated that she "reported to your office to investigate this claim" and "was instructed to write this letter to appeal the decision since I did not receive any certification papers."
Petitioner submits a copy of the non-payment petition seeking rent, electricity charges and legal fees in the total amount of $7,274.61 for the period from October 2007 through March 2008. Specifically, the petition lists rent owed for October, November and December 2007 at $1,014,90 per month; for January 2008 in the amount of $1,039.00; and for February and March 2008 at $1,383.00 per month. The petition also seeks electricity charges of $47.33 for November 2007; $41.12 for December 2007, $46.74 for January 2008, $47.07 for February 2008, and $44.46 for March 2008; and legal fees of $150.00.
HPD responded by a "Notice: Section 8 Informal Hearing Late Submission," dated May 9, 2008, advising that petitioner's "request for an informal hearing to contest the termination of your Section 8 rent subsidy is denied because it was received after the deadline for requesting an informal hearing. Your written request was due by 9/11/06. HPD did not receive your written request until 4/26/08."
On September 8, 2008, petitioner commenced the instant proceeding, challenging HPD's May 9, 2008 denial of her request for an informal hearing. Petitioner contends that HPD's "refusal to allow [her] a chance to contest the termination solely because she had missed the deadline for requesting a hearing, when Respondent HPD knew that petitioner had never known of said deadline," and HPD's "failure to allow [her] an opportunity to present her case at a hearing," is arbitrary and capricious. Specifically, petitioner asserts that she never received the recertification package in 2006, and also never received the pre-termination notice and the termination notice. She states that she first learned of the termination of her Section 8 subsidy when the landlord commenced a non-payment proceeding against her in March 2008, and she appeared in Housing Court. Petitioner states that the landlord's attorney advised her to request a hearing before HPD, so she wrote the April 15, 2008 letter to HPD, explaining that she had not received the recertification papers and was unaware that the subsidy had been terminated.
As an explanation for not receiving the re-certification package, and the pre-termination and termination notices, petitioner asserts that she was having "an ongoing problem receiving mail" and that her mail was "mixed up between different tenants," as another "Drew" resided in her building. Petitioner submits a copy of a letter dated April 3, 2007, from the University of Maryland, addressed to "Edward Drew" at "2970 W27th St., Brooklyn, NY 11224," and states that no one in her household is "named Edward Drew" or has attended the University of Maryland. Petitioner asserts that after receiving "some letters for Edward Drew," she spoke to her mail carrier and was informed that another tenant with her surname resided in the building. In opposing the petition, HPD argues that the instant proceeding is time-barred, as the four-month statute of limitations for commencing an Article 78 proceeding began to run on September 11, 2006 and expired on January 11, 2007. Alternatively, HPD argues that even accepting that petitioner did not receive any of the notices from HPD, petitioner had notice of the termination by April 15, 2008, as evidenced by her letter of that date requesting an "appeal." Using that date, HPD asserts that "at the very latest," petitioner had to commence this proceeding by August 15, 2008.
HPD's arguments as to the statute of limitation, are not persuasive. To the contrary, petitioner is correct in asserting that the proceeding was timely commenced on September 8, 2008, as at the earliest, the four-month period did not begin to run until May 9, 2008, the date of HPD's notice denying petitioner's request for an informal hearing.See Montalvo v. Crotty, 137 AD2d 437 (1st Dept 1988).
Turning to the merits of the petition, this court concludes that HPD's determination denying as untimely petitioner's request for a informal hearing, is arbitrary and capricious, in light of petitioner's sworn statement that she never received the recertification package or the notices warning that her subsidy was subject to termination. If petitioner received none of those documents, she was not given actual notice that she was required to recertify and was at risk of losing her rent subsidy, and could not have possibly submitted a "timely" request for an informal hearing. HPD's reliance on the presumption of regularity of the mails and an affidavit from the building's management company, is refuted by petitioner's sworn statements as to non-receipt of those documents and the misdirection of her mail. See Almeida v. Hernandez, 9 Misc3d 986 (Sup Ct, Kings Co. 2005). While HPD also asserts that petitioner should have known about the recertification procedure since she previously recertified in 2006, it is not disputed that petitioner first received a Section 8 subsidy in 2004, and has been through the recertification process just one time in 2006. Under these circumstances, respondent's denial of petitioner's request for an informal hearing on the grounds that such request was untimely, was arbitrary and capricious petitioner is entitled to an informal hearing to resolve the genuine factual issues as to why she failed to return the recertification documents, and failed to respond to the pre-termination and termination notices.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the petition is granted and petitioner is entitled to a informal hearing before HPD to contest the termination of her Section 8 rent subsidy; and it is further
ORDERED that the stay prohibiting Sea Park East L.P. and its agents from attempts to evict petitioner shall continue during the pendency of the proceedings before HPD; and it is further
ORDERED that petitioner shall continue to pay UO/rent in the amount of $1,100 per month during the pendency of the proceedings before HPD.
This constitutes the decision, order and judgment of the court.