Dial v. Rhea

• Decision Date: 13 November 2013
• Citation: 974 N.Y.S.2d 516,111 A.D.3d 720,2013 N.Y. Slip Op. 07475
• Parties: In the Matter of Viola DIAL, petitioner-respondent, v. John RHEA, etc., appellant, 690 Gates, LP, respondent-respondent.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 720
974 N.Y.S.2d 516
2013 N.Y. Slip Op. 07475

In the Matter of Viola DIAL, petitioner-respondent,
v.
John RHEA, etc., appellant,
690 Gates, LP, respondent-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 13, 2013.

[974 N.Y.S.2d 517]

Kelly D. Macneal, New York, N.Y. (Nancy M. Harnett and Melissa Renwick of counsel), for appellant.

Martin S. Needelman and Paul J. Acinapura, Brooklyn, N.Y. (Jared M. Langenthal and Terry Herman of counsel), for petitioner-respondent.

Robert H. Gordon, New York, N.Y. (Georgia Moshopoulos of counsel), for respondent-respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Housing Authority dated August 16, 2007, terminating the petitioner's benefits under Section 8 of the United States Housing Act of 1937 (42 USC § 1437f[b][1] ), John Rhea, as Chairman of the New York City Housing Authority, appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Edwards, J.), dated November 14, 2011, which granted the petition, annulled the determination, directed reinstatement of the petitioner's subsidy retroactive to September 1, 2007, directed the payment of any rent subsidy amount that was not issued because of the termination, and denied his motion, in effect, to dismiss the petition on the ground that the proceeding was time-barred.

ORDERED that the order and judgment is affirmed, with one bill of costs.

The petitioner commenced this proceeding pursuant to CPLR article 78 against the appellant, John Rhea, as Chairman of the New York City Housing Authority (hereinafter the NYCHA), and her landlord, 690 Gates, LP, challenging the termination by the NYCHA of her benefits under Section 8 of the United States Housing Act of 1937 (42 USC § 1437f[b][1] ). The petitioner alleged that the NYCHA did not comply with the notice provisions of the first partial consent judgment in Williams v. New York City Hous. Auth. (U.S. Dist. Ct., S.D.N.Y., 81 Civ. 1801, Ward, J., 1984) (hereinafter the Williams first partial consent judgment), prior to terminating her Section 8 rent subsidy. The appellant moved, in effect, to dismiss the petition on the ground that the proceeding was time-barred. The Supreme Court denied the motion, granted the petition, and annulled the NYCHA's determination to terminate the petitioner's Section 8 rent subsidy.

The Williams first partial consent judgment “established procedures by which Section 8 tenants may challenge a NYCHA decision to discontinue or terminate subsidy payments” (Williams v. New York City Hous. Auth., 975 F.Supp. 317, 319 [S.D.N.Y.] ). According to the Williams first partial consent judgment, “[t]ermination of the subsidy or eligibility of any participant in the Section 8 Housing Assistance Program ... shall be made only after a determination in accordance with the procedures and provisions herein” ( Williams first partial consent judgment, ¶ 1 [emphasis added] ). “A preliminary determination that there exists a basis for a proposed termination must be made” by the NYCHA ( Williams first partial consent judgment, ¶ 2). Thus, “before assistance

[974 N.Y.S.2d 518]

may be terminated, NYCHA must follow certain procedures, which include[s] three separate written notices” (Matter of Fair v. Finkel, 284 A.D.2d 126, 127, 727 N.Y.S.2d 401). Pursuant to paragraph 3 of the Williams first partial consent judgment, the NYCHA shall take the following steps:

“(a) a warning letter in Spanish and English will be sent to the participant, by regular mail, specifically stating the basis for the proposed adverse action; and, where appropriate,...