Opinion
18736/04.
Decided June 30, 2005.
Petitioner moves pro se pursuant to CPLR article 78 to review the New York City Housing Authority's (hereinafter NYCHA) determination to terminate his tenancy after his default in appearance at a fair hearing. Petitioner also seeks to review their determination to deny his request to vacate the aforementioned default. Respondent opposes the motion and cross moves to dismiss the petition as untimely.
On January 5, 2005, Lester Williams served the respondent with the instant petition and notice of petition. The petition contains three annexed exhibits: NYCHA's notice terminating petitioner's tenancy; NYCHA's decision denying petitioner's application to vacate his default, and a letter from petitioner's employer advising of his employment in Washington, DC., from November 5, 2001 through March 2, 2002. Petitioner resides at 154 Kingsborough 1st Walk, Apartment 3B, Brooklyn, New York at a development operated by the respondent. NYCHA is a public benefit corporation created by the New York State Public Housing Law for the purpose of providing "safe, decent, affordable housing for low-income residents within the five boroughs" of New York City (Public Housing Law §§ 2, 401 [McKinney 1989]).
Petitioner's verified petition alleges the following facts. During 2001, he fell behind in rent payments due to the nature of his work and layoffs. On January 12, 2002, petitioner failed to appear at a scheduled fair hearing on NYCHA's claim that he was chronically delinquent in the payment of rent. Petitioner did not appear because he was working in Washington, DC, during the period from October 27, 2001 to February 27, 2002. Upon his return, petitioner received a letter from NYCHA dated February 20, 2002 which stated the following information:
"The New York City Housing Authority, in compliance with the Decision and Disposition made by the Hearing Officer, has determined that the Tenant is ineligible for continued occupancy on the grounds of chronic delinquency in the payment of rent and his tenancy shall therefore be terminated."
Petitioner took steps to reopen the case. In the letter annexed as the second exhibit to the petition, NYCHA denied petitioner's request to vacate the default and reopen the hearing.
Petitioner seeks to vacate NYCHA's decision to terminate his tenancy and to deny his request to vacate the default in appearance at the fair hearing. Respondent opposes the motion and cross-moves to dismiss the petition as untimely. In support of the cross-motion, respondent alleges that NYCHA's decision denying petitioner's request to vacate his default was mailed to the petitioner on April 15, 2002, the date the hearing officer signed it.
CPLR § 3211(a)(5) provides in pertinent part that:
A party may move for judgment dismissing one or more causes of action asserted against him on the ground that the cause of action may not be maintained because of . . . statute of limitations.
The determinations under review are by NYCHA which is considered a government body. Therefore, the controlling statute of limitations provision is found in CPLR § 217(1).
CPLR § 217 (1) provides in pertinent part:
Unless a shorter time is provided in the law authorizing the proceeding, 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.
A CPLR article 78 proceeding against a public body or officer must be commenced within four months after the determination to be reviewed becomes final and binding (CPLR § 217; Matter of Carter v. State, Executive Dept., Div. Of Parole, 95 NY2d 267). An administrative action is not final and binding within the contemplation of CPLR § 217(1) until it has its impact upon petitioner ( Matter of Edmead v. McGuire, 67 NY2d 714). Any ambiguity created by the agency itself as to the final and binding nature of its determination must be resolved against the agency ( Matter of Carter v. State, Executive Dept., Div. Of Parole, 95 NY2d 267); see also Mundy v. Nassau County Civil Service Commission, 44 NY2d 352). Under this formulation, in Housing Authority termination cases, the statute of limitations does not begin to run until the petitioner receives notice of the determination to terminate ( Bludson v. Popolizio, 166 AD2d 346 [1st Dept. 1990]).
Here there can be no dispute that petitioner received the two notices from NYCHA which are the subject of the instant proceeding inasmuch as he attached them to his petition. The NYCHA letter advising of the termination of his tenancy is dated February 20, 2002, and is correctly addressed to his residence. The second notice denying petitioner's request to vacate his default is dated April 15, 2002 and is also properly addressed. The first notice is based on petitioner's default at a fair hearing. This decision to terminate his tenancy, however, is not the relevant accrual point for purposes of determining the timeliness of the petitioner. The Court of Appeals in Yarbough v. Franco, 95 NY2d 342 addressed this very issue on facts almost identical to the case at bar. At issue in Yarbough, was whether the four-month statute of limitations for challenging the denial of a tenant's request to vacate a New York City Housing Authority default determination accrues upon entry of the default or upon denial of the tenant's request to vacate it. The Court of Appeals determined that it was the latter.
"However, the fact that a determination is final for the purpose of its present execution does not mean it is final for judicial review purposes ( Matter of New York Cent. R.R. Co. V. Public Ser. Comm'n, 238 NY2d 132, 135-136).
An administrative determination is not final for judicial review purposes if it rests upon an empty record. This is such a case.
Although petitioner's default here effectively terminated her tenancy, any challenge to that default is unreviewable absent an application to the Authority to vacate it. A request to vacate a default affords the defaulting party an opportunity to develop a factual record setting forth the reasons for the nonappearance and any meritorious defenses that would justify re-opening the default (see Gray v. B.R. Trucking Co., 59 NY2d 649, 650, rearg dismissed 59 NY2d 966). . . ."
Because no meaningful judicial review lies from the default itself, we hold that the Authority's denial of petitioner's application to vacate the default constitutes the final, binding determination from which the four-month Statute of Limitations is measured (see, Interboro Mgt. Co., v. State Div. of Human Rights, 139 AD2d 697, 698."
Yarbough v. Franco, supra 95 NY2d at 347, 348.
Applying this analysis to the case at bar, the first notice by NYCHA terminating petitioner's tenancy based on his default at a fair hearing is unreviewable. Petitioner's allegations of fact establish that he took steps to vacate the notice of termination of his tenancy by seeking an opportunity to explain his default. He further alleges that the hearing officer reviewed the proof he presented to explain his default and, nevertheless, ruled in respondent's favor.
The NYCHA decision was signed by Hearing Office Stuart G. Laurence and dated April 15, 2002. It stated that petitioner did not adequately explain his default or provide a meritorious defense. This written determination was final and binding. The date of the decision is the date of accrual for measuring the four month statute of limitation. Respondent's opposition papers contained two affidavits attesting to the mailing of this notice to the petitioner on April 15, 2002. Petitioner did not deny this claim or allege any facts to the contrary. The affidavit of service of the notice of petition and petition alleges service of same upon the respondent on January 4, 2005. These items are also date stamped as received by the Kings County Clerk on the same date. There is no dispute that petitioner commenced the instant proceeding more than two years after the NYCHA's determination to deny his request to vacate his default at the fair hearing. Petitioner's application is therefore untimely and must be dismissed.
The foregoing constitutes the decision and order of the court.