12th & 14th St. Investor v. N.Y.C. Hous. Auth.

• Decision Date: 09 April 2013
• Docket Number: Index No. 103830/12
• Citation: 2013 NY Slip Op 30696
• Parties: In the Matter of the Application of 12th & 14th STREET INVESTOR, LLC Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law & Rules v. THE NEW YORK CITY HOUSING AUTHORITY and JOHN B. RHEA, Respondents.
• Court: New York Supreme Court

2013 NY Slip Op 30696

In the Matter of the Application of 12th & 14th STREET INVESTOR, LLC Petitioner,For a Judgment Pursuant to Article 78 of the Civil Practice Law & Rules

v.THE NEW YORK CITY HOUSING AUTHORITY and JOHN B. RHEA, Respondents.

Index No. 103830/12

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55

Dated: April 4, 2013

Dated: April 9, 2013

DECISION/ORDER

HON. CYNTHIA S. KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: ____________

+------------------------------------------------+
                ¦Papers                                 ¦Numbered¦
                +---------------------------------------+--------¦
                ¦Notice of Motion and Affidavits Annexed¦1       ¦
                +---------------------------------------+--------¦
                ¦Answering Affidavits                   ¦        ¦
                +---------------------------------------+--------¦
                ¦Cross-Motion and Affidavits Annexed    ¦2       ¦
                +---------------------------------------+--------¦
                ¦Answering Affidavits to Cross-Motion   ¦3       ¦
                +---------------------------------------+--------¦
                ¦Replying Affidavits                    ¦4       ¦
                +---------------------------------------+--------¦
                ¦Exhibits                               ¦5       ¦
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Petitioner 12th & 14th Street Investor, LLC commenced the instant proceeding pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR") seeking to challenge respondents New York City Housing Authority ("NYCHA") and John B. Rhea's ("Mr. Rhea") decision to suspend petitioner's Section 8 subsidies and for a writ of mandamus to compel respondents to pay petitioner the unpaid Section 8 rents. Respondents cross-move for an Order dismissing the petition on the ground that it is time-barred. For the reasons set forth below, NYCHA's cross-motion to dismiss the petition is granted and petitioner's petition is dismissed in its entirety.

The relevant facts are as follows. Petitioner is the owner and landlord of the building located at 252 12th Street, Brooklyn, New York (the "building"). At the time petitioner purchased the building, the building housed tenants who held and/or hold Section 8 vouchers pursuant to Section 8 of the United States Housing Act of 1937, which is administered by NYCHA. Petitioner leased Apartment 3A (the "subject apartment") in the building to tenant Elizabeth Valentin (hereinafter the "tenant" or "Ms. Valentin") who held a Section 8 voucher.

The requirements for the Section 8 program are set forth in the regulations promulgated by the United States Department of Housing and Urban Development ("HUD") and codified at 24 C.F.R. 982. Pursuant to 24 C.F.R. §§ 982.305(a)(2), (b)(1)(I) and 982.405(a), NYCHA is required to inspect all apartments before commencing Section 8 assistance, and at least annually thereafter, to ensure that they meet housing quality standards ("HQS") established by HUD. Further, NYCHA "must not make any housing assistance payments for a dwelling unit that fails to meet the HQS, unless the owner corrects the defect within the period specified by [NYCHA] and [NYCHA] verifies the correction." 24 C.F.R. § 982.404(a)(3) Pursuant to 24 C.F.R. § 982.404, NYCHA must afford petitioner at least 30 days to correct any non-life threatening HQS violation unless NYCHA extends the deadline.

On July 10, 2009, Ms. Valentin's apartment failed an HQS inspection. NYCHA sent an NE-1 notice to petitioner which advised petitioner that NYCHA would suspend the Section 8 subsidy for Ms. Valentin's apartment on August 7, 2009 unless the HQS violations listed were corrected. Specifically, the NE-1 notice stated that

Reinstatement of subsidy will not be considered until the apartment is reinspected to determine if the apartment again complies with HQS...Reinstatement of subsidy will not be considered until wereceive and accept the certification, or until we receive notification of completed repairs from you and we reinspect the apartment to determine that the unit again complies with HQS...You may be entitled to reimbursement for some or all of any subsidy suspension if you can establish, in the judgment of our inspection unit, that the majority of the above violations were caused by the tenant, or that you were delayed in completing repairs of the above violations because the tenant failed to provide access to the apartment.

The NE-1 notice also provided that "[i]f the subsidy is suspended for 180 consecutive days, the HAP Contract automatically terminates and the tenants' voucher for the subject apartment also terminates."

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