In the Matter of Tayinha Banos, Respondent,v.John Rhea, et al., Appellants, et al., Respondent.

Brief

N.Y.March 24, 2015

To be argued by: Ferdinand Ubozoh, Esq. 15 Minutes APL – 2014- 00078 ___________ COURT OF APPEALS In the Matter of the Application of TAYINHA BANOS Petitioner-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- JOHN RHEA, as Chairman of the New York City Housing Authority, and the NEW YORK CITY HOUSING AUTHORITY, Respondents-Appellants, CONEY ISLAND TOWERS, LLC, Respondent-Respondent., ________________________________________ BRIEF FOR PETITIONER - RESPONDENT ________________________________________ SEYMOUR W. JAMES, ESQ. THE LEGAL AID SOCIETY Ferdinand Ubozoh, of Counsel Stephen Myers, of Counsel 111 Livingston Street, 7th Floor Brooklyn, N.Y. 11201 Tel: (718) 422-2851 Fax: (718) 722-3094 Attorneys for Petitioner-Respondent fiubozoh@legal-aid.org Completion date: July 28, 2014 - i - TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 POINT I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 SERVICE OF THE WARNING NOTICE AND THE NOTICE OF TERMINATION (T-1) ARE MANDATORY CONDITIONS PRECEDENT TO SERVICE OF THE NOTICE OF DEFAULT (T-3) AND THE STATUTE OF LIMITATIONS CANNOT BEGIN TO RUN UNLESS THE AUTHORITY HAS MADE PROPER SERVICE OF ALL THREE NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . .13 I-A THE APPLICATION OF FUNDAMENTAL PRINCIPLES OF CONTRACT INTERPRETATION REQUIRES A FINDING THAT SERVICE OF THE WARNING NOTICE AND THE T-1 ARE CONDITIONS PRCEDENT TO SERVICE OF THE T-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 I-B SINCE THE AUTHORITY FAILED TO COMPLY WITH THE CONDITIONS PRECEDENT TO SERVICE OF THE T-3, THE STATUTE OF LIMITATIONS WAS NOT TRIGGERED. . . . . . . .18 POINT II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 THE APPELLATE DIVISION COULD HAVE AFFIRMED THE DENIAL OF THE MOTION TO DISMISS ON THE GROUND THAT THE AUTHORITY FAILED TO ESTABLISH THAT IT - ii - MADE PROPER SERVICE OF THE T-3 EVEN IF THE COURT HAD NOT HELD THAT THE STATUTE OF LIMITATIONS WAS NOT TRIGGERED DUE TO THE AUTHORITY’S FAILURE TO SATISFY THE CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . . 22 II-A APPELLANT FAILED TO SUSTAIN ITS BURDEN OF PROVING THAT IT MADE PROPER SERVICE OF THE T-3 . . .23 II-B MS. BANOS SUCCESSFULLY REBUTTED ANY POSSIBLE PRESUMPTION OF RECEIPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 POINT III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 THE APPELLATE DIVISION, SECOND DEPARTMENT, CORRECTLY REFUSED TO FOLLOW THE HOLDING OF THE APPELLATE DIVISION, FIRST DEPARTMENT, IN LOPEZ v. NEW YORK CITY HOUSING AUTHORITY¸ AS WELL AS THOSE CASES THAT HOLD THAT THE STATUTE OF LIMITATIONS BEGINS TO RUN WHEN A PARTY KNEW OR SHOULD HAVE KNOWN OF THE ADMINISTRATIVE DETERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 III-A THE APPELLATE DIVISION CORRECTLY REFUSED TO FOLLOW THOSE CASES WHICH HOLD THAT THE STATUTE OF LIMITATIONS BEGINS TO RUN WHEN A PARTY KNEW OR SHOULD HAVE KNOWN OF THE DECISION SINCE THEY ARE DISTINGUISHABLE . . . . . . . . . .35 III-B APPELLANT’S CONCERN THAT TOLLING THE STATUTE OF LIMITATIONS BECAUSE OF ITS OWN FAILURE TO PROVIDE PROPER NOTICE UNDER WILLIAMS WILL CREATE ACCOUNTING AND FISCAL PROBLEMS ARE PROBLEMS OF ITS OWN MAKING. SUCH PROBLEMS ARE OUTWEIGHED BY VITAL SOCIAL AND PUBLIC PURPOSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 - iii - POINT IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 CONTRARY TO APPELLANT’S ASSERTION, THE COURT BELOW DENIED APPELLANT’S MOTION TO DISMISS ON THE GROUND THAT THE PROCEEDING IS TIME- BARRED AND DID NOT MAKE A DETERMINATION ON THE MERITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 PRINTING SPECIFICATIONS STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 49 - iv - TABLE OF AUTHORITIES PAGE Cases 90-92 Wadsworth Avenue Tenants Association v. City of New York Department of Housing Preservation and Development, 227 A.D.2d 331 (1st Dept. 1997) .......35 ABB Indus. Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351 (2nd Cir. 1997) .....................................................................................................................39 Aivaliotis v. Continental Broker-Dealer Corp., 30 A.D.3d 446 (2nd Dep’t. 2006) .14 Alshawhati v. Zandani, 82 A.D.3d 805 (2nd Dep’t. 2011) .......................................14 Anderson v. Yungkau, 329 U.S. 482 (1947)........................................................ 4, 17 Azriliant v. Eagle Chase Associates 213 A.D.2d 573 (2nd Dept. 1995) .......... 24, 46 Benn v. Benn, 82 A.D.3d 548 (1st Dept. 2011) ........................................................24 Biondo v. New York State Board of Parole, 60 N.Y.2d 832 (1983)........................38 Brady v. Brady, 271 A.D.2d 563 (2nd Dept. 2000) ..................................................20 Carter v. State of New York, Executive Department, Division of Parole, 95 N.Y.2d 267 (2000).............................................................................................................38 Castaways Motel v. Schuyler, 24 N.Y.2d 120 (1969) .................................. 6, 37, 39 Cimino v. Dembeck, Jr., 61 A.D.3d 802 (2nd Dept. 2009)................................ 23, 24 Citibank, N.A. v. Velazquez, 284 A.D.2d 364 (2nd Dept. 2001)..............................20 Consedine v. Portville Central School District, 12 N.Y.3d 286 (2009)..................17 Cron v. Hargro Fabrics, Inc., 91 N.Y.2d 362 (1998) .............................................24 Dial v. Rhea, 111 A.D.3d 720 (2013) .............................................................. passim - v - Dobess Realty Corp. v. City of New York, 79 A.D.2d 348 (1st Dept. 1981) app. dism. 53 N.Y.2d 1054 and app. dism. 54 N.Y.2d 754 .........................................21 Doe v. Pataki, 481 F.3d 69 (2nd Cir. 2007) ......................................................... 4, 13 Escalera v. New York City Housing Authority, 425 F.2d 853 (2nd Cir. 1970). 41, 42 Fair v. Finkel, 284 A.D.2d 126 (1st Dept. 2001) ............................................ passim Fleetwood Agency, Inc. v. Verde Electric Corp., 85 A.D.3d 850 (2nd Dept. 2011) 23 Fox Ridge Motor Inn, Inc. v. Town of Southeast, 85 A.D.3d 785 (2nd Dept. 2011) ................................................................................................................ 4, 15 Funk v. Barry¸ 89 N.Y.2d 364 (1996) ................................................................ 5, 19 Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970) .................................. 41, 42 Goldstein v. Niagara Falls Memorial Medical Center, 143 A.D.2d 515 (4th Dept. 1988) .....................................................................................................................37 Gonzalez v. Ross, 47 N.Y.2d 922 (1979).................................................................31 Gramercy Park Residence Corp. v. Ellman, 96 A.D.3d 423 (1st Dept. 2012) 20, 37 Helfant v. Sobkowski, 174 A.D.2d 340 (1st Dept. 1991).........................................19 In re Barbieri, 199 F.3d 616 (2nd Cir. 1999)...........................................................17 Indovision Enterprizes, Inc. v. Cardinal Export Corp. 44 A.D.2d 228 (1st Dept. 1974), aff’d 36 N.Y.2d 811 (1975).......................................................................14 ISCA Enterprises v. City of New York, 77 N.Y.2d 688 (1991), rearg. den. 78 N.Y.2d 952, cert. den. 503 U.S. 906 (1992) ................................................. 35, 38 Jones v. New York City Housing Authority, 2012 WL 4043874 (S. Ct. NY Cty 2012) .....................................................................................................................18 Kassler v Wing, 239 A.D.2d 583, 658 N.Y.S.2d 94 (2nd Dept. 1997) .....................31 - vi - Kaufman v. Anker, 66 A.D.2d 851 (2nd Dept. 1978)................................................36 Lopez v. New York City Housing Authority, 93 A.D.3d 448 (1st Dept. 2012).... 5, 32 Matos v. Hernandez, 10 Misc.3d 1068(A) (S. Ct. NY Cty. 2005) ..................... 6, 28 Matter of Colyar, 129 A.D.2d 946 (3rd Dept. 1987)................................................24 McComb v. Town of Greenville, 163 A.D.2d 369 (2nd Dept. 1990) ........................35 McPartlin v. C.I.R. 653 F.2d 1185 (7th Cir. 1981)...................................................31 Metropolitan Life Insurance Co. v. Young¸ 157 Misc.2d 452 (Civ. Ct. N.Y. Cty 1993) .....................................................................................................................30 Moya v. U.S., 35 F.3d 501 (10th Cir. 1994)..............................................................30 Mulder v. C.I.R., 855 F.2d 208 (5th Cir. 1988) ........................................................30 Mundy v. Nassau County Civil Service Commission¸ 44 N.Y.2d 352 (1978).........38 Munice v. Board of Examiners of Board of Education of City of New York, 31 N.Y.2d 683 (1972)................................................................................................37 Nassau Insurance Co. v. Murray, 46 N.Y.2d 828 (1978) .................................. 8, 25 New York Central Railroad Company v. Public Service Commission, 238 N.Y. 132 (1924)....................................................................................................................40 O.D.F. Optronics Ltd., v. Remington Arms Co., Inc., 2008 WL 4410130 (SDNY 2008) .....................................................................................................................15 Palmer v. Palmer¸ 284 A.D.2d 612 (3rd Dept. 2001) ..............................................19 People v. Kennedy, 68 N.Y.2d 569 (1986) ..............................................................27 People v. Ortega, 15 N.Y.3d 610 (2010)...................................................... 8, 25, 47 Prince v. O’Brien, 256 A.D.2d 208 (1st Dept. 1998)...............................................19 - vii - Quesada v. Hernandez, 5 Misc.3d 1028(A) (S. Ct. NY Cty. 2004)............. 6, 27, 28 Redeemed Christian Church of God Tabernacle of Restoration v. Green, 62 A.D.3d 601 (1st Dept. 2009) .................................................................................20 Reynolds v. Dustman 1 N.Y.3d 559 (2003) .................................................. 5, 20, 37 Riverkeeper, Inc. v. Crotty, 28 A.D.3d 957 (3rd Dept. 2006) ..................................35 Rodriguez v. Wing, 251 A.D.2d 335 (2nd Dept. 1998).............................................32 Sabadie v. Burke, 47 A.D.3d 913 (2nd Dept. 2008) .......................................... 23, 24 Schoenwald v. New York City Housing Authority, 2008 WL 8765206 (S. Ct. NY Cty. 2008) .............................................................................................................18 Shamblee v. Rhea, 110 A.D.3d 443 (1st Dept. 2013)...............................................36 Sullivan v. Brevard, 66 N.Y.2d 489 (1985) .............................................................30 Sutton v. East River Savings Bank, 55 N.Y.2d 550 (1982) .......................... 4, 14, 15 Swift v. New York Medical College, 25 A.D.3d 686 (2nd Dept. 2006) ...................23 Tougher Heating & Plumbing Co., Inc. v. State, 73 A.D.2d 732 (2nd Dept. 1979).15 United States ex rel. Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, N.Y., 712 F.3d 761 (2nd Cir. 2013)......................................14 Welch v. State, 261 A.D.2d 537 (2nd Dept. 1999)....................................................30 Williams v. New York City Housing Authority, 81 Civ. 1801(RJW) (S.D.N.Y. 1984) .......................................................................................................................1 Williams v. New York City Housing Authority, 975 F.Supp. 317 (S.D.N.Y. 1997) ..3 - viii - Statutes 42 U.S.C. § 1437f(a) ................................................................................................42 42 U.S.C. § 1437f(a), (b) and (c) .............................................................................42 42 U.S.C.A. § 1437f...................................................................................................3 CPLR 5513(a) ................................................................................................... 20, 37 Other Authorities 1 McKinney’s Consolidated Laws of New York, Statutes §232...............................17 1 McKinney’s Consolidated Laws, Statutes §232....................................................29 1 McKinney’s Consolidated Laws, Statutes §97......................................................29 Rules 22 NYCRR 202.48(b). ........................................................................................ 5, 19 Treatises 10 Carmody-Wait 2d §70:10 ...................................................................................19 151 Siegel’s Practice Review 2 (July 2004) ............................................................19 David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of N.Y., Book 7B, CPLR C5513:2 .....................................................................................37 NY Jurisprudence, Article 78, §190 ........................................................................36 - 1 - PRELIMINARY STATEMENT This proceeding was commenced by Petitioner-Respondent, TAYINHA BANOS (hereinafter “Respondent” or “Ms. Banos”) to reverse the determination of JOHN B. RHEA, as Chairman of the New York City Housing Authority (hereinafter “Appellant” or “the Authority”), to terminate her Section 8 rental subsidy in violation of the procedures established by the First Partial Consent Judgment entered in Williams v. New York City Housing Authority, 81 Civ. 1801(RJW) (S.D.N.Y. 1984) (“Williams”). Pursuant to Williams, to terminate a tenant’s Section 8 subsidy, the Authority must comply strictly with a precisely defined three-stage process of written notices including a warning letter, a Notice of Termination (“T-1”) and a Notice of Default (“T-3”) prior to termination of the subsidy. Appellant cross-moved to dismiss on the ground that the proceeding was time-barred, arguing that the statute of limitations began to run when Ms. Banos purportedly received the T-3 Notice. Ms. Banos, who learned of the termination proceeding from her landlord, denied receipt of all three notices. Finding that the Authority failed to serve a warning letter or a T-1 Notice, the motion court held that the Authority’s failure to comply strictly with the notice requirements as set forth in Williams tolled the statute of limitations. The motion court granted the Authority sixty days in which to serve and file its answer. - 2 - The Appellate Division Second Department affirmed, holding that the Authority’s termination of Respondent’s Section 8 subsidy was in violation of lawful procedure. The Court explained that “since the NYCHA did not comply with the notice provisions set forth in the Williams first partial Consent Judgment, the statute of limitations was not properly triggered and did not begin to run”. R 8. QUESTIONS PRESENTED 1. Does a Section 8 participant’s time to appeal a determination to terminate that person’s Section 8 subsidy start to run even if that party has not received the Notice of Default (“T-3)? The Appellate Division did not address this issue. 2. Does a Section 8 participant’s time to appeal a determination to terminate that person’s Section 8 subsidy start to run when that party receives the Notice of Default (“T-3”) even if the Authority has failed to comply with contractually mandated conditions precedent to service of the T-3? The Appellate Division answered in the negative. 3. Does a motion to dismiss on the ground that a proceeding is time- barred state a basis for relief if it is not supported by legally sufficient proof that service has been made of the document(s) that trigger the running of the statute of limitations? The Appellate Division did not address this issue. - 3 - 4. In affirming the denial of Appellant’s cross-motion to dismiss, did the Appellate Division also decide the merits of the underlying proceeding? The Appellate Division did not address this issue. SUMMARY OF ARGUMENT The Section 8 rent subsidy aids low-income families in obtaining a decent place to live and promotes economically mixed housing (42 U.S.C.A. § 1437f) by providing rental subsidies to landlords on behalf of indigent tenants. Williams v. New York City Housing Authority, 975 F.Supp. 317, 319 (S.D.N.Y. 1997) ). The case of Williams v. New York City Housing Authority, was brought “for injunctive relief to challenge on procedural due process grounds NYCHA’s methods of terminating Section 8 assistance.” Id. In partial settlement of the litigation, the parties agreed to the First Partial Consent Judgment (hereinafter, “Consent Judgment”) which precisely defines the procedures to be followed in the event the Authority proposes to terminate a program participant’s Section 8 subsidy. The procedures established in the Consent Judgment were intended to ensure that due process was afforded to program participants by mandating that adequate and proper notice be provided to the low and very low income people whose housing depends on their Section 8 subsidy, that such subsidy is in peril. Fair v. Finkel, 284 A.D.2d 126, 129 (1st Dept. 2001). - 4 - The Williams Consent Judgment is a complex agreement that provides for three separate notices to be provided to program participants whose subsidy the Authority intends to terminate. Those procedures require that the participant be advised of the specific grounds for termination of benefits and expressly provide for mailing of a warning letter, a Notice of Termination (hereinafter, “T-1”), which must be served by both regular and certified mail, and a Notice of Default (hereinafter, “T-3”). Id. A stipulation of settlement is a contract that should be construed according to ordinary principles of contract interpretation. Doe v. Pataki, 481 F.3d 69, 75 (2nd Cir. 2007). Proper construction of the stipulation requires that it be read as a whole to determine the parties’ purpose and intent. Fox Ridge Motor Inn, Inc. v. Town of Southeast, 85 A.D.3d 785, 786-787 (2nd Dept. 2011). Words of the stipulation should be given their fair and reasonable meaning. Sutton v. East River Savings Bank, 55 N.Y.2d 550, 555 (1982). The Williams Consent Judgment explicitly requires that the Authority “shall” serve each of the required notices. “Shall” is a word of command (Anderson v. Yungkau, 329 U.S. 482, 485 (1947)) evidencing the clear intention of the parties that service of each such notice is mandatory. This is consistent with the very essence of the stipulation which is to ensure due process prior to the termination of a subsidy that will jeopardize the participant’s housing. - 5 - Assuming compliance with the requirements of the Williams Consent Judgment, service of the T-3 triggers the running of the statute of limitations for taking an appeal. In that respect, it serves a purpose parallel to that of the Notice of Entry. Notwithstanding service of a Notice of Entry, the time to appeal does not start to run until there has been strict compliance with Civil Practice Law and Rules 5513(a). Reynolds v. Dustman 1 N.Y.3d 559, 560 (2003). Conditions precedent to service of the Notice of Entry include formal entry of the judgment or order (Funk v. Barry¸ 89 N.Y.2d 364, 368, fn (1996)) and, where required by the relevant decision, settlement of the judgment or order. 22 NYCRR 202.48(b). If the prevailing party fails to timely settle the order or judgment, enter the order or judgment and serve proper notice of entry, the time to appeal is tolled indefinitely. Funk v. Barry, 89 N.Y.2d at 368. The same rule applies to service of the T-3: if the Authority fails to satisfy the conditions precedent by making proper service of the warning notice and the T- 1, the time to appeal is tolled despite its having served the T-3. The Appellate Division decision, which relied on its own decision rendered on the same day (Dial v. Rhea, 111 A.D.3d 720 (2013) should be affirmed. Lopez v. New York City Housing Authority, 93 A.D.3d 448 (1st Dept. 2012) on which the Appellant relies involved a pro se litigant. That Court rendered a pro forma decision, relying by rote on paragraph 22(f) of the Williams Consent Judgment, without considering the - 6 - Consent Judgment as a whole, without considering it within the context in which it was negotiated and without considering whether service of the warning notice and the T-1 are conditions precedent to service of the T-3. It is not good law and should not be followed. The Appellant also argues that the statute of limitations begins to run when the affected party “knew or should have known” that a determination had been rendered against her/him. None of the cases cited by Appellant involves the application of a contractually mandated procedure to be followed by the very administrative agency that agreed to follow those procedures. Thus, they are distinguishable. Moreover, the Authority has a lamentable record of not following the procedures that it agreed to follow. Such cases include, but are not limited to Fair v. Finkel, 284 A.D.2d at 129; Matos v. Hernandez, 10 Misc.3d 1068(A) (S. Ct. NY Cty. 2005); Quesada v. Hernandez, 5 Misc.3d 1028(A) (S. Ct. NY Cty. 2004) Dial v. Rhea¸ 111 A.D.3d at 722. This Court has rejected the concept that the statute of limitations should run when there is an implied determination. Castaways Motel v. Schuyler, 24 N.Y.2d 120, 126 (1969). Having rejected that approach, this Court should not reward the Authority’s failure to comply with its obligations under Williams by imposing the “knew or should have known” standard on “unsophisticated layperson[s]”. Dial v. Rhea, 111 A.D.3d at 722. - 7 - Neither the motion court nor the Appellate Division reached the issue of the sufficiency of the Authority’s allegation that it had made proper service of the T-3 and that Ms. Banos actually received the T-3, receipt of which is required to trigger the statute of limitations. Had the Appellate Division done so, it would have found the Authority’s proof to be insufficient to establish that it made good service. The Authority’s cross-motion lacked an affidavit from someone with personal knowledge. Instead, it offered an affidavit from someone regarding the preparation of documents for mailing in the Brooklyn office. (Ms. Banos lives in Brooklyn and all of her transactions involved the Brooklyn office.) That affidavit did not address the procedures for delivering the mail to the post office. A second affidavit discussed procedures in the Bronx office for taking the mail to the post office. That affidavit is irrelevant since it pertains to office procedures in the Bronx – an office with which Ms. Banos has had absolutely no contact – not to procedures in Brooklyn. The Authority’s books and records are also inadequate. The relevant document (its Accountable Mail Log) is dated 2001, whereas the T-3 allegedly was mailed in 2010, and contains two other errors. Both of those errors – the date of the month and Ms. Banos’ apartment number – were corrected, but there is no indication of when the corrections were made. Appellant failed to sustain its burden of demonstrating the existence of an office practice or procedure followed in the regular course of business (Nassau Insurance Co. v. Murray, 46 - 8 - N.Y.2d 828, 829 (1978)) ) that provides the trustworthiness and accuracy that is expected from such records. People v. Ortega, 15 N.Y.3d 610, 617 (2010). Due to these failures, the presumption of receipt of the mailing never attached. Even if it had, Ms. Banos effectively rebutted it by supporting her denial of receipt with a detailed explanation of the actions she took upon learning from her landlord of the threatened termination of her subsidy. That explanation was supported by contemporaneous documents that were mailed to, and received by, the Authority. Futterman v. New York State Division of Housing and Community Renewal, 264 A.D.2d 593, 595 (1st Dept. 1999). Had the Appellate Division chosen to decide on this ground, it would have affirmed the motion court, albeit on other grounds. Such decision would have been unassailable. Appellant’s argument that the Appellate Division decided the statute of limitations question by deciding the merits is flawed. Although the Appellant does not agree with the Appellate Division’s decision, that Court only decided the statute of limitations issue. The Appellate Division affirmed the motion court’s decision which denied the cross-motion to dismiss and granted the Authority sixty days in which to serve and file an answer. If the merits had been determined by the motion court, there would have been no reason to permit an answer; the court would have sustained the petition. If the Appellate Division had reached the merits, it would have modified the motion court’s order instead of affirming and - 9 - remanded to the motion court. Neither court reached or determined the underlying merits. STATEMENT OF FACTS Ms. Banos is a single mother of four. R. 235 ¶7. She is extremely low income. The income recertification documents that she filed in March 2010 reveal that her sole source of income was child support in the amount of $150.00 per week. R. 108. Although she had worked in the past, she was unemployed at that time and was not receiving unemployment insurance, workers’ compensation or social security. R. 103, 108. Her recertification documents disclose that she was not receiving public assistance. R. 108. At the time of her recertification, she had been residing at her current address for two years and had been a Section 8 program participant for that entire period of time. R 234 at ¶¶ 2&3. On March 26, 2010, Ms. Banos submitted her annual Section 8 recertification papers as she had done the previous year. R 235 at ¶ 8; R 103-114. On June 15, 2010, Ms. Banos’ landlord, Coney Island Towers LLC (hereinafter, “CIT”) sent her a copy of a letter it had received from the Authority advising of the imminent termination of Ms. Banos’ Section 8 subsidy for an alleged failure to provide information. R 235 at ¶ 8. The letter sent to her landlord notes that her “PA case appears to be closed” (R. 244) a fact she had disclosed on her recertification documents. R. 108. The letter to her landlord also says that Ms. - 10 - Banos must complete certain forms that are designated only by form number (See, R. 244), requires her son to sign an undesignated form and finally provides that she must document her child support income. R. 244. The notice received from her landlord was the first and only notice Ms. Banos received that the Authority considered her recertification documents to be incomplete. R. 235 at ¶¶10, 12. The Authority did not send a copy of the warning letter to Ms. Banos. R 235 at ¶ 10. The Authority did not send a Notice of Termination (T-1) to Ms. Banos. R. 237-238 at ¶20. The Authority did not send a Notice of Default (T-3) to Ms. Banos. R. 238 at ¶21. On June 29, 2010, two weeks after receiving the letter from her landlord, Ms. Banos went to the Authority’s office to submit the supplemental recertification documents that she thought the Authority wanted. R. 248; R. 235 at ¶11.. Ms. Banos believed that her attempt to submit the additional documents on June 29, 2010 was timely because the letter given her by her landlord said that her Section 8 would be terminated on June 30, 2010 and because she had not received any notices from the Authority, not the warning notice, not the T-1 and not the T-3. . R. 244; R. 237-238 at ¶¶ 19-23. An Authority representative refused to accept her papers and informed her that her Section 8 case was closed due to her alleged failure to submit the recertification papers timely. R 235 at ¶ 11. After speaking with a second - 11 - representative, Ms. Banos wrote a letter to the Authority requesting assistance and an explanation for the termination of her subsidy despite her having made a timely submission of her recertification papers. R 236 at ¶ 13; R 248-249. In July 2010, Ms. Banos received a letter from the Authority, indicating that her Section 8 subsidy was terminated for failure to comply with the annual recertification process. R 236 at ¶ 14; R 246. Ms. Banos commenced this proceeding on or about February 28, 2012. R 230; R 69 at ¶11. On May 30, 2012, the Authority filed a cross-motion to dismiss the proceeding as untimely and thus barred by the four-month statute of limitations. The cross-motion is not supported by an affidavit of service from someone with personal knowledge. In an effort to demonstrate that the Authority has a regular, trustworthy and reliable procedure that it follows for mailing notices to program participants, the Authority offered two affidavits to prove that the T-3 had been served on Respondent. The affidavits divide the mailing procedure into two parts: preparing and collecting the mail in a borough office and then delivering it to the post office. The first affidavit is from Barry Liptzer who is familiar with the practice and procedures in Brooklyn. Affidavit of Barry Liptzer, R. 199 at ¶1. This is admittedly relevant since Ms. Banos lives in Brooklyn and all of her contacts with the Authority were with the Authority’s Brooklyn office. Mr. Liptzer’s affidavit alleges that the mail is placed in envelopes in the regular course - 12 - of business and is delivered to the Mail Center. R. 200-201. The affidavit does not address the procedures followed in delivering the mail from the Mail Center to the post office. The second affidavit is from someone familiar with the practice in the Bronx. Affidavit of Shawn Younger, R. 211 at ¶1. It addresses the procedures followed by Appellant’s Bronx office in bringing the mail from the Mail Center to the post office. R. 211-212. Ms. Banos does not live in the Bronx and did not interact with that office in any way. Appellant also proffered documents that it believes support its allegation that the T-3 was served on Ms. Banos and received by her. The Accountable Mail Log lists only one mailing to one person (Ms. Banos) but contains three material errors, only two of which have been corrected. The document was originally dated “05/07/01”. It was changed to “05/17/01” (R. 207) which is nine years before the T-3 was allegedly mailed. The date stamp on the document corresponds to the month and day (May 17) of the date on the document, but not to the year. Id. The second change pertains to Ms. Banos’ apartment number. There is no indication of when those corrections were made. The Track and Confirm document, printed in 2012 (R. 209; reference is made to the date at the bottom on the left) does not reflect that the T-3 was delivered to Ms. Banos and received by her. Id. Ms. Banos denies having received the T-3. R. 238 at ¶21. - 13 - ARGUMENT POINT I SERVICE OF THE WARNING NOTICE AND THE NOTICE OF TERMINATION (T-1) ARE MANDATORY CONDITIONS PRECEDENT TO SERVICE OF THE NOTICE OF DEFAULT (T-3) AND THE STATUTE OF LIMITATIONS CANNOT BEGIN TO RUN UNLESS THE AUTHORITY HAS MADE PROPER SERVICE OF ALL THREE NOTICES The Appellate Division’s determination that service of the Warning Notice and the T-1, in strict compliance with the Williams Consent Judgment, are necessary conditions precedent to service of the T-3 is consistent with fundamental principles of contract interpretation and with basic concepts of procedure in the State of New York. It also recognizes the critical importance of the Section 8 rent subsidy to low and very low income people by ensuring that the program participant receives proper notice and is aware that her/his Section 8 subsidy is in peril and the reasons for the proposed termination. I-A THE APPLICATION OF FUNDAMENTAL PRINCIPLES OF CONTRACT INTERPRETATION REQUIRES A FINDING THAT SERVICE OF THE WARNING NOTICE AND THE T-1 ARE CON- DITIONS PRECEDENT TO SERVICE OF THE T-3 In construing stipulations of settlement, ordinary principles of contract interpretation are generally applicable. Doe v. Pataki, 481 F.3d at 75; United States ex rel. Anti-Discrimination Center of Metro New York, Inc. v. Westchester - 14 - County, N.Y., 712 F.3d 761, 767 (2nd Cir. 2013). Stipulations of settlement are contracts enforceable on their terms and are subject to the cardinal rules of contractual interpretation. Aivaliotis v. Continental Broker-Dealer Corp., 30 A.D.3d 446, 447 (2nd Dep’t. 2006) (“[a] so-ordered stipulation is a contract between the parties thereto and as such, is binding on them and ‘will be construed in accordance with contract principles and the parties’ intent’”) (citations omitted); Alshawhati v. Zandani, 82 A.D.3d 805 (2nd Dep’t. 2011) (stipulation of settlement is a contract enforceable on its terms). In construing a contract, the court must accord the words of the contract their fair and reasonable meaning. “The aim is a practical interpretation of the expressions of the parties to the end that there be a realization of [their] reasonable expectations”. Sutton v. East River Savings Bank, 55 N.Y.2d 550, 555 (1982). Every part of a written agreement should be interpreted to give effect to its general purpose. Even though a literal construction might sustain an opposite interpretation, if such construction defeats and contravenes the purpose of the agreement it is not to be so construed. Indovision Enterprizes, Inc. v. Cardinal Export Corp. 44 A.D.2d 228, 230 (1st Dept. 1974), aff’d 36 N.Y.2d 811 (1975). It is a fundamental principle that the intention of the parties must be gleaned from all corners of the document rather than from sentences or clauses viewed in isolation, and every part of a contract should be interpreted to give effect to its general purpose. Where, as here, a literal construction defeats and contravenes the purpose of the - 15 - agreement, it should not be so construed. Due consideration must be given to the purposes of the parties in making the contract, and a fair and reasonable interpretation consistent with that purpose must guide the courts in enforcing the agreement. Tougher Heating & Plumbing Co., Inc. v. State, 73 A.D.2d 732, 733-734 (2nd Dept. 1979); Fox Ridge Motor Inn, Inc. v. Town of Southeast, 85 A.D.3d 785, 786-787 (2nd Dept. 2011) (as with any contract, a “stipulation must be read as a whole to determine the parties’ purpose and intent, giving a practical interpretation to the language employed so that the parties’ reasonable expectations are realized”). Embraced in the interpretative result should be any promises which a reasonable person in the position of the promisee would be justified in understanding were included. O.D.F. Optronics Ltd., v. Remington Arms Co., Inc., 2008 WL 4410130 (SDNY 2008) (quoting Sutton v. East River Sav. Bank, 55 N.Y.2d at 555. The Williams case was brought “for injunctive relief to challenge on procedural due process grounds NYCHA’s methods of terminating Section 8 assistance.” Williams v. New York City Housing Authority, 975 F.Supp. at 319. In partial settlement of the litigation, the parties agreed to the First Partial Consent Judgment which sets forth with precision the number and type of notices to be served, the format and content of each such notice, the procedural options available - 16 - to the Section 8 participant1, the manner in which they are to be served, the languages in which they must be written and the procedures to be followed by the Authority. It was intended to be more than a mechanical process for handling the termination of Section 8 subsidies. It was intended to ensure that due process was afforded to program participants by mandating that adequate and proper notice be provided to the low and very low income people whose housing depends on their Section 8 subsidy that such subsidy is in peril. Fair v. Finkel, 284 A.D.2d at 129.. The notice provisions . . . ensure that a participant is given sufficient notice that his or her Section 8 subsidy is in peril of being terminated and to give him or her sufficient time to remedy the situation. Running the clock for statute of limitations purposes solely upon proof that the T-3 letter has been sent, rather than after all three required notices have been sent, fails to satisfy the letter, spirit, and purpose of the Williams first partial consent judgment. Dial v. Rhea, 111 A.D.3d at 722. The first paragraph of the Williams Consent Judgment provides that “[t]ermination of the subsidy or eligibility of any participant in the Section 8 Housing Assistance Program for Existing Housing . . . shall be made only after a determination in accordance with the procedures and provisions herein.” R. 78. After the Authority makes a preliminary determination that there is a basis for a proposed termination, the Authority “shall take the following steps”: 1) send 1 For example, upon receipt of the T-1, the participant has the right to request a hearing before one of the Authority’s Hearing Officers or an optional pre-hearing conference with a supervisory-level employee. Williams consent judgment par. 3(b). R. 79. - 17 - a warning letter (Williams Consent Judgment ¶ 3(a); R. 79); 2) if the conditions which led to the preliminary determination have not been remedied, a Notice of Termination (T-1) “shall be sent to the participant” (Williams Consent Judgment ¶ 3(b); R. 79); 3) “[i]n the event that the participant does not respond to the notice as provided for in Section 3(b) above, a Notice of Default [T-3] . . . shall be mailed to the participant.” Williams Consent Judgment ¶ 3(e); R. 80. Words of ordinary import should be given their usual and commonly understood meaning. 1 McKinney’s Consolidated Laws of New York, Statutes §232. “The word ‘shall’ is ordinarily ‘[t]he language of command’.” Anderson v. Yungkau, 329 U.S. 482, 485 (1947) (citation omitted); In re Barbieri, 199 F.3d 616, 619 (2nd Cir. 1999) (“The term “shall,” as the Supreme Court has reminded us, generally is mandatory and leaves no room for the exercise of discretion by the trial court.”) (citing Anderson v. Yungkau, supra). Construing the persistent use of the word “shall” as being mandatory with respect to the procedures to be followed in the Williams Consent Judgment, is buttressed by the context in which the Consent Judgment was signed: a due process attack on the Authority’s methods of terminating Section 8 assistance. See, generally, Consedine v. Portville Central School District, 12 N.Y.3d 286, 290 (2009) (in construing a statute, it is “pertinent” to consider “the history of the times [and] the circumstances surrounding the statute’s passage . . .”). - 18 - The clear intention of the parties was to impose on the Authority a rigorous procedure to be followed prior to termination of a participant’s Section 8 subsidy. Service of all three notices is mandatory. The Authority is not at liberty to dispense with any of the notices. Fair v. Finkel, 284 A.D.2d at 129; Spann v. Rhea, 2012 WL 2648270 (S.Ct. NY Cty. 2012); Jones v. New York City Housing Authority, 2012 WL 4043874 (S. Ct. NY Cty 2012); Schoenwald v. New York City Housing Authority, 2008 WL 8765206 (S. Ct. NY Cty. 2008). I-B SINCE THE AUTHORITY FAILED TO COMPLY WITH THE CONDITIONS PRECEDENT TO SERVICE OF THE T-3, THE STATUTE OF LIMITATIONS WAS NOT TRIGGERED. In pertinent part, paragraph 22(f) of the Williams Consent Judgment provides that “for the purposes of Section 217 and Article 78 of the Civil Practice Law and Rules, the determination to terminate a subsidy shall, in all cases, become final and binding upon receipt of the . . . Notice of Default”. R 88. The T-3 serves a purpose analogous to that of a Notice of Entry: it triggers the running of the statute of limitations for taking an appeal. Nevertheless, as is true for service of the Notice of Entry, service of the T-3 does not trigger the statute of limitations unless the prevailing party has satisfied the conditions precedent to service of the relevant notice, whether it be the Notice of Entry or the T-3. - 19 - Prior to service of the Notice of Entry, the judgment or order must have been formally entered. 151 Siegel’s Practice Review 2 (July 2004); 10 Carmody-Wait 2d §70:10 (a judgment or order that has not been entered is not appealable). Notwithstanding a party’s receipt of a favorable decision, the statute of limitations for taking an appeal cannot begin to run if the judgment or order has not been entered. Funk v. Barry¸ 89 N.Y.2d 364, 368, fn (“[f]ailure by the prevailing party to expeditiously submit a judgment for entry carries its own sanctions, including . . . indefinite extension of the losing party’s time in which to take an appeal”) (quoting Helfant v. Sobkowski, 174 A.D.2d 340, 341 (1st Dept. 1991); Palmer v. Palmer¸ 284 A.D.2d 612, 613 (3rd Dept. 2001) (“no appeal may lie from a decision, which is not an appealable paper”); Prince v. O’Brien, 256 A.D.2d 208, 212 (1st Dept. 1998) (no appeal can be taken from a ruling that was never incorporated into an appealable order or been subsumed in a final judgment”). Not only is entry of the judgment or order a condition precedent to service of the notice of entry but settlement of the proposed judgment or order may be an additional condition precedent since some judicial decisions require that a proposed judgment or order be settled before it may be presented to the judge for signature. 22 NYCRR 202.48. The failure to make a timely submission of the proposed judgment or order “shall be deemed an abandonment of the motion or action, unless for good cause shown.” 22 NYCRR 202.48(b); Redeemed Christian - 20 - Church of God Tabernacle of Restoration v. Green, 62 A.D.3d 601, 601 (1st Dept. 2009); Citibank, N.A. v. Velazquez, 284 A.D.2d 364, 364 (2nd Dept. 2001); Brady v. Brady, 271 A.D.2d 563, 563 (2nd Dept. 2000). Service of a judgment or order that has been entered but which is not accompanied by a proper notice of entry fails to meet the requirements of CPLR 5513(a) which must be strictly followed. Reynolds v. Dustman 1 N.Y.3d at 560. The time to appeal does not start to run until there has been strict compliance with CPLR 5513(a). Id.; Gramercy Park Residence Corp. v. Ellman, 96 A.D.3d 423, 424 (1st Dept. 2012) In Reynolds, this court held that an appeal taken six months after the order being appealed was rendered was not time-barred because the “time to appeal never commenced running” due to the prevailing party’s failure to comply strictly with the requirement that a copy of the judgment with a proper notice of entry be served. We find that plaintiffs are not time barred from pursuing an appeal from the dismissal of their complaints and cross claims against the city because the city, the prevailing party on this issue, has never served plaintiffs with a judgment so providing. The rule that service of a judgment or order on the appellant by the prevailing party is necessary to start the 30-day limitation period running, dates back at least 123 years. See Fry v Bennett (16 How Prac 402 [1858]) wherein it was stated at page 405 that the rule ‘enables the [losing] party to see and apprehend his precise condition in reference to the subject. And on the other hand, it leaves the prevailing party at full liberty to set the thirty days a [sic] running - 21 - when he pleases, or to acquiesce in or allow an unlimited time within which to appeal, if he choose to do so.’ Dobess Realty Corp. v. City of New York, 79 A.D.2d 348, 352 (1st Dept. 1981), app. dism. 53 N.Y.2d 1054 and app. dism. 54 N.Y.2d 754. The requirement in the Williams Consent Judgment that the warning notice, the T-1 and the T-3 all be sent serves a vital due process purpose. It is intended to ensure that the program participant receives notice and is aware that her/his Section 8 subsidy is in jeopardy. To permit the statute of limitations to depend solely upon the mailing of the T–3 letter shifts the burden from the NYCHA to comply with the detailed provisions of the Williams first partial consent judgment, to which it agreed to be bound, to the participants in the Section 8 program. The notice provisions, as set forth in the Williams first partial consent judgment, are in place to ensure that a participant is given sufficient notice that his or her Section 8 subsidy is in peril of being terminated and to give him or her sufficient time to remedy the situation. Running the clock for statute of limitations purposes solely upon proof that the T–3 letter has been sent, rather than after all three required notices have been sent, fails to satisfy the letter, spirit, and purpose of the Williams first partial consent judgment. To do so puts the burden on the unsophisticated layperson to figure out whether the correspondence he or she received is a warning letter, a T–1 letter, or a T–3 letter, all of which look very similar. Rather, the Williams first partial consent judgment was entered into to ensure that a Section 8 participant would receive all three letters, giving the participant notice that his or her benefits are in imminent danger of being terminated if no action is taken. Allowing the NYCHA to avoid this condition precedent prior to running the statute of limitations - 22 - provision set forth in paragraph 22(f) would render the Williams first partial consent judgment a nullity. Dial v. Rhea 111 A.D.3d at 722 Since Appellant failed to comply with the contractually mandated conditions precedent to service of the T-3, Ms. Banos’ time to commence the underlying Article 78 proceeding never began to run. This Court should affirm the Appellate Division Order. POINT II THE APPELLATE DIVISION COULD HAVE AFFIRMED THE DENIAL OF THE MOTION TO DISMISS ON THE GROUND THAT THE AUTHORITY FAILED TO ESTABLISH THAT IT MADE PROPER SERVICE OF THE T-3 EVEN IF THE COURT HAD NOT HELD THAT THE STATUTE OF LIMITATIONS WAS NOT TRIGGERED DUE TO THE AUTHORITY’S FAILURE TO SATISFY THE CONDITION PRECEDENT. An alternative ground for affirming the Appellate Division is the failure of the Authority to satisfy its burden of establishing service of the T-3. Assuming without conceding that the Authority had made a minimally adequate showing of service in its cross-motion, it still would have been proper to deny the motion since Ms. Banos’ verified petition contains more than a bare denial of receipt of the T-3. Her denial is fortified by her explanation of how she learned that there was a - 23 - problem concerning her Section 8 and the steps that she took to address the problem. II-A APPELLANT FAILED TO SUSTAIN ITS PURDEN OF PROVING THAT IT MADE PROPER SERVICE OF THE T-3 Appellant’s moving papers failed to sustain its burden of establishing that it made good service of the T-3 in the manner required by the Williams Consent Judgment. ‘To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired.’ Only if such prima facie showing is made will the burden then shift to the plaintiff to ‘aver evidentiary facts establishing that the case falls within an exception to the Statute of Limitations.’ In order to make a prima facie showing, the defendant must establish, inter alia, when the plaintiff’s cause of action accrued. Swift v. New York Medical College, 25 A.D.3d 686, 687 (2nd Dept. 2006) (citations omitted); Fleetwood Agency, Inc. v. Verde Electric Corp., 85 A.D.3d 850, 851 (2nd Dept. 2011) (“defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired”); Cimino v. Dembeck, Jr., 61 A.D.3d 802, 803 (2nd Dept. 2009); Sabadie v. Burke, 47 A.D.3d 913, 914 (2nd Dept. 2008). On a CPLR 3211 motion made against a complaint, a court must take all the allegations as true and resolve all - 24 - inferences which reasonably flow therefrom in favor of the pleader. Cron v. Hargro Fabrics, Inc., 91 N.Y.2d 362, 366 (1998); Cimino v. Dembeck, 61 A.D.3d at 803 (“court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff”); Benn v. Benn, 82 A.D.3d 548 (1st Dept. 2011); Sabadie v. Burke, 47 A.D.3d at 914. A correct and accurate affidavit of service, from a person with personal knowledge, would constitute proper proof of service by mail. Engel v. Lichterman, 95 A.D.2d 536, 545 (2nd Dept. 1983), aff’d 62 N.Y.2d 943 (1984). Alternatively, a party can provide “sufficient evidence attesting to . . . the ‘existence of an office practice geared to ensure the proper addressing or mailing of [correspondence]’”. Azriliant v. Eagle Chase Associates 213 A.D.2d 573, 575-576 (2nd Dept. 1995); Matter of Colyar, 129 A.D.2d 946, 947 (3rd Dept. 1987) (“in order for the presumption of receipt to arise, there must be evidence of an office practice geared to ensure the likelihood that the mailing is always properly addressed and mailed”). The Authority’s moving papers fail to meet these standards. The moving papers do not include an affidavit from someone with personal knowledge of the alleged mailings. Their attempt to demonstrate a uniform office practice that is consistently followed and to support that with business records completely fails. The affidavits supplied by Appellant discuss the way two different borough offices handle two different aspects of the mailing process. They cannot be read together - 25 - to “exhibit[] an office practice and procedure followed . . . in the regular course of their business, which shows that the notices . . . have been duly addressed and mailed”. Nassau Insurance Co. v. Murray, 46 N.Y.2d at 829. The supporting records have been altered and contain material inconsistencies. They do not rise to the level of trustworthiness and accuracy which is expected from such records. People v. Ortega, 15 N.Y.3d at 610. Appellant’s moving papers rely on an affidavit from Barry Liptzer that lays out what it claims to be the Authority’s “regular business practice” in the “Brooklyn Leased Housing Office”. R. 200 at ¶1. Brooklyn is the borough in which Respondent resides. It is also the borough office with which she interacted and the office which is alleged to have generated and mailed the warning notice, T- 1 and T-3. Referring to the T-3, the affidavit states that “[a] Housing Authority employee picked up the envelopes from the outgoing mailbox and took the envelopes to Mail Center for mailing, one by regular mail and one by certified mail”. R. 201 at ¶6. Mr. Liptzer’s affidavit does not address the business practice in the Brooklyn office for delivering the mail to the post office. Instead, the moving papers offer an affidavit from Shawn Younger (R. 211) who discusses the business practice at the “Bronx Leased Housing Department.” Mr. Younger’s affidavit persistently and exclusively refers to the practices in the Bronx, never once - 26 - mentioning the business practice in the Brooklyn office. The Younger affidavit was intended to supply the link establishing delivery of the certified mail and the regular mail to the post office. It cannot do that because it does not address business practices in the Brooklyn office nor does it allege that the Authority has a uniform policy that is followed in every borough. Various exhibits are annexed to the Liptzer affidavit. One exhibit, the Accountable Mail Log (R. 207) contains three material errors, two of which affect the date. First, the date in the upper right hand corner has been changed from “05/07/01” to “05/17/01”. As changed, the day of the month (May 17) now corresponds to the day of the month on what purports to be the post office stamp. R. 207. It is unclear whether this alteration was made before or after the document was supposedly stamped by the post office. Even as changed, however, the document is dated 2001, not 2010, when it allegedly was mailed. R. 207. The inconsistency between the date of the document and the date of the postal stamp cannot be reconciled. This destroys any argument that the postal stamp confirms or corroborates Appellant’s claim that the T-3 was mailed. The third error concerns Ms. Banos’ mailing address which has been changed to reflect her correct apartment number. Again, it is unknown whether that change was made before or after the post office is alleged to have stamped the document. Thus, Appellant’s Accountable Mail Log lacks the “unusual degree of trustworthiness and reliability” - 27 - that is the “essence of the business records exception to the hearsay rule”. People v. Kennedy, 68 N.Y.2d 569, 579 (1986). Appellant’s moving papers allege that it “submits its certified mail to the United States Postal Service (“USPS”) in batches with a list of each individually numbered piece of mail.” R. 67-8. However, the Log lists only one name making it readily apparent that it is, at best, an excerpt from Appellant’s records. As such, it does not deserve to be accorded the status of a business record. The Authority’s failures to comply with the procedures established in Williams is not unique to this proceeding. Its careless and haphazard approach to the mailing of the T-3, the warning notice and the T-1 – notices that are of vital importance to Section 8 participants whose subsidy and, by extension, whose housing is at stake – has been the source of repeated comment and complaint by the court. See, e.g. Dial v. Rhea, 111 A.D.3d at 722-723 (the Authority failed to show that it mailed two of the three required notices); Fair v. Finkel, 284 A.D.2d at 129 (“There is no showing that NYCHA has complied with these procedures in this case; on the contrary, the record reflects that NYCHA mailed only two of the three required notices and that none of the notices were served by certified mail); Quesada v. Hernandez, 5 Misc.3d 1028(A) (S. Ct. NY Cty. 2004). (“This is yet another example, in a lamentable series of examples, that respondent Housing - 28 - Authority refuses to acknowledge and conform its administrative practices to the unyielding dictates of the Williams Consent Decree.”) [T]he present action is the latest in a line of cases in which the New York City Housing Authority has failed to comply with its own internal procedures, and those outlined in the Williams consent decree. As Justice Wetzel of this Court noted, ‘This Court implores the respondent Housing Authority to stop banging its head against the procedural wall of the Williams Consent Decree and to set in place administrative procedures which scrupulously conform to the Decree's requirements.’ Matos v. Hernandez, 10 Misc.3d 1068(A) (quoting Quesada v. Hernandez, 5 Misc.3d 1028(A)). Due to the insufficiency of Appellant’s “proof” with respect to the mailing of the T-3, the burden of denying receipt of such mailing never shifted to Ms. Banos. The Appellate Division could have reached the same result – affirming the motion court – by finding that the Appellant’s failure to meet its burden of proof warranted denial of the motion. This is an alternative ground on which this Court could affirm the Appellate Division. II-B MS. BANOS SUCCESSFULLY REBUTTED ANY POSSIBLE PRESUMPTION OF RECEIPT As the result of Appellant’s failures of proof, it was not entitled to a presumption of delivery of the T-3. Any such presumption to which it otherwise might have been entitled, was successfully rebutted by Ms. Banos. She did not - 29 - merely deny receipt, she provided a detailed explanation of how she learned that her Section 8 subsidy was in peril and how she responded in an effort to forestall such a calamity. The Williams Consent Judgment provides that for statute of limitations purposes, the determination is “final and binding upon receipt of . . . the Notice of Default [T-3].” R. 88 at ¶22(f). There is a “rebuttable presumption of receipt” of the notice. Id. at 22(g). R. 88. The Williams Consent Judgment provides for certain notices to be sent by certified mail with a copy by regular mail. See, for example Paragraph 3(b) referring to the T-1 or Notice of Termination. R. 79. A notice sent to a participant after a hearing is sent by regular and certified mail. R. 86 at ¶22(a). In contrast, the Consent Judgment provides for regular mail only with respect to the warning notice. R. 79 at ¶3(a). Paragraph 3(e) referring to the T-3 merely provides for the notice to “be mailed to the participant.” R. 80 at ¶3(e). All parts of the Williams Consent Judgment should be read and construed together to determine the parties’ intent. Dial v. Rhea, 111 A.D.3d at 722; 1 McKinney’s Consolidated Laws, Statutes §97. Words of ordinary import used in a statute are to be given their usual and commonly understood meaning, unless it is plain from the statute that a different meaning is intended. 1 McKinney’s Consolidated Laws, Statutes §232. - 30 - Where the parties to the Williams Consent Judgment intended that notice be sent by a means other than or in addition to regular mail, they so specified. It must be presumed that the parties designated the precise type of service that they intended with respect to each type of notice. No other construction of the Consent Judgment is permissible. See, generally, Sullivan v. Brevard, 66 N.Y.2d 489, 493- 4 (1985) (“the fact that such a provision has been omitted from the Rent Stabilization Law cannot be overlooked, especially since it has been included, where intended, in other regulations”). Service by mail means service by ordinary mail. Welch v. State, 261 A.D.2d 537, 538 (2nd Dept. 1999). Appellant was not required to use a form of restricted delivery mail to serve the T-3. It did so entirely of its own volition. The presumption of receipt does not apply when a party employs a type of restricted delivery mailing that is not required. Metropolitan Life Insurance Co. v. Young¸ 157 Misc.2d 452, 454 (Civ. Ct. N.Y. Cty 1993). While the law presumes delivery of a properly addressed piece of mail, no such presumption exists for certified mail where the return receipt is not received by the sender. The reason is that the sender of a certified letter who does not receive the return receipt is on notice that the addressee may not have received the letter. Moya v. U.S., 35 F.3d 501, 504 (10th Cir. 1994); Mulder v. C.I.R., 855 F.2d 208, 212 (5th Cir. 1988) (“While it is presumed that a properly-addressed piece of mail placed in the care of the Postal Service has been delivered, no such presumption of - 31 - delivery exists for certified mail when the requested return receipt is not received by the sender”); McPartlin v. C.I.R. 653 F.2d 1185, 1191 (7th Cir. 1981) (presumption of receipt of mail does not apply to a piece of certified mail when no receipt notice is returned). Appellant has failed to establish that it followed an established and regularly followed office procedure designed to ensure that notices are properly addressed and mailed, so it is not entitled to a presumption of delivery. Gonzalez v. Ross, 47 N.Y.2d 922, 923 (1979); Kassler v Wing, 239 A.D.2d 583, 584, 658 N.Y.S.2d 94, 95 (2nd Dept. 1997). Nor can the Appellant prove that the T-3 was delivered to Ms. Banos. The Track and Confirm document that is annexed to the Liptzer affidavit does not show that the letter was delivered to Ms. Banos and that it was received by her. R. 209. Indeed, since it does not reflect delivery, it implicitly confirms Ms. Banos’ sworn denial of receipt of the T-3. Precisely because Appellant has failed to meet its burden of establishing a prima facie showing that regular and proper business procedures were followed in mailing the T-3 Notice of Default, Appellant is not entitled to the presumption of delivery. Therefore, none of the cases on which it has relied for the proposition - 32 - that Ms. Banos has failed to rebut the presumption of receipt2 apply. The dissent was mistaken in concluding from the inadequate record of mailing of the T-3 notice in this proceeding, that the Authority had sustained its burden of proving service of the T-3 notice. In contrast to the insufficiency of the Appellant’s attempt to prove mailing, Ms. Banos effectively denied receipt of the notices. See, generally, Futterman v. New York State Division of Housing and Community Renewal, 264 A.D.2d 593, 595 (1st Dept. 1999) (denial of receipt of mailed document is buttressed by convincing supporting circumstances including other actions taken to defend proceeding and knowledge of the importance of the proceeding). Her verified petition includes far more than a bald denial of receipt. She explains that she learned that the Authority was threatening to terminate her Section 8 when she received from her landlord, Respondent CIT, a copy of a notice sent to it by the Authority. That notice is attached to the petition. R. 235 at ¶11; R. 244. In response to the warning received from her landlord, she contacted the Authority to try to prevent the termination of her Section 8. After being rebuffed by the Authority when she made a timely attempt to complete the recertification process, she wrote to the Authority to inquire as to the reasons for its actions and to explain the actions that she was taking. R. 236, at ¶13; R. 248. 2 Lopez v. New York City Housing Authority, 93 A.D.3d 448 (1st Dept. 2012); Rodriguez v. Wing, 251 A.D.2d 335 (2nd Dept. 1998). - 33 - When Respondent wrote to the Authority, she attached a copy of the document that she had received from her landlord. The Authority, which admits receipt of her letter (R. 69 at ¶ 10), claims that this is a tacit admission that Respondent received the T-3. This argument is not viable since a copy of Ms. Banos’ letter and the Authority’s notice to her landlord are annexed to Appellant’s cross-motion to dismiss as Exhibit “E”. R. 120-122. See, also, Appellant’s Table of Contents for the Record on Appeal which refers to “Letter, dated June 29, 2010, with attachments”. Plainly, Ms. Banos did not attach the T-3. Appellant failed to sustain its burden of making a prima facie showing that the T-3 was served and received. Respondent persuasively rebutted any presumption of receipt to which Appellant would have been entitled had it successfully demonstrated that the T-3 had been mailed. The Appellate Division’s finding that the underlying proceeding was not time-barred is correct. The record also supports a finding that Appellant failed to sustain its burden of proving that Ms. Banos received the T-3. Therefore, the statute of limitations was not triggered and this proceeding is not time-barred. The Appellate Division Order should be affirmed. - 34 - POINT III THE APPELLATE DIVISION, SECOND DEPARTMENT, CORRECTLY REFUSED TO FOLLOW THE HOLDING OF THE APPELLATE DIVISION, FIRST DEPARTMENT, IN LOPEZ v. NEW YORK CITY HOUSING AUTHORITY¸ AS WELL AS THOSE CASES THAT HOLD THAT THE STATUTE OF LIMITATIONS BEGINS TO RUN WHEN A PARTY KNEW OR SHOULD HAVE KNOWN OF THE ADMINISTRATIVE DETERMINATION. The petitioner in Lopez v. New York City Housing Authority, 30 Misc.3d 1237(A) (S. Ct. NY Cty 2011) rev’d 93 A.D.3d 448 (2012) was pro se. In denying the Authority’s motion to dismiss the proceeding as being time-barred, the motion court did not specifically discuss the issue of whether service of the warning notice and the T-1 are conditions precedent to service of the T-3. Nevertheless, the motion court denied the motion to dismiss due to the Authority’s failure to serve all three of the requisite notices. Since the record reflects that NYCHA mailed only two of the three required notices, the termination of petitioner's Section 8 subsidy was in violation of lawful procedure. Since the notice was defective, the statute of limitations did not begin to run. Consequently, the court finds that petitioner's challenge to NYCHA's termination of her Section 8 subsidy is timely. Id. (citations omitted). In reversing, the Appellate Division focused on one sentence in one paragraph (paragraph 22(f)) of the Williams Consent Judgment which provides that - 35 - in all cases the statute of limitations begins to run on the date of receipt of the T-3. The court never considered whether the Williams Consent Judgment should be construed as one cohesive document nor did it consider the issue of whether service of the warning notice and the T-1 are conditions precedent to service of the T-3. Since it did not even address the issue raised herein, its decision is distinguishable. Lopez v. New York City Housing Authority, is also distinguishable on the ground that the petitioner in Lopez, in contrast to Ms. Banos, apparently did not contest receipt of the T-3. III-A THE APPELLATE DIVISION CORRECTLY REFUSED TO FOLLOW THOSE CASES WHICH HOLD THAT THE STATUTE OF LIMITATIONS BEGINS TO RUN WHEN A PARTY KNEW OR SHOULD HAVE KNOWN OF THE DECISION SINCE THEY ARE DISTINGUISHABLE Appellant relies on a line of cases including ISCA Enterprises v. City of New York, 77 N.Y.2d 688 (1991), rearg. den. 78 N.Y.2d 952, cert. den. 503 U.S. 906 (1992); 90-92 Wadsworth Avenue Tenants Association v. City of New York Department of Housing Preservation and Development, 227 A.D.2d 331 (1st Dept. 1997); McComb v. Town of Greenville, 163 A.D.2d 369 (2nd Dept. 1990); and Riverkeeper, Inc. v. Crotty, 28 A.D.3d 957 (3rd Dept. 2006) for the proposition that the statute of limitations begins to run when the party knew or should have known of the administrative determination. - 36 - None of these cases addresses the termination of a Section 8 subsidy pursuant to the Williams Consent Judgment. Nor do any of those cases involve a parallel situation in which an administrative agency is contractually mandated to serve a rigid series of procedural notices before its actions are final and binding for purposes of enforcement as well as final and binding for purposes of judicial review. The Authority also has misstated the issue and, consequently, the holding in Shamblee v. Rhea, 110 A.D.3d 443 (1st Dept. 2013). Ms. Shamblee acknowledged that she received the T-3. The issue in Shamblee v. Rhea, was whether the statute of limitations was tolled indefinitely by the ambiguity of a notice received after the T-3 which led Ms. Shamblee to believe that her subsidy was not being terminated. The Appellate Division held that she should have known that her subsidy had been terminated (thus resolving any ambiguity) when her landlord commenced a summary proceeding alleging that her subsidy had been terminated. The cases on which Appellant relies are also inconsistent with the established principle that when a person is entitled to written notice, the statute of limitations does not begin to run until the party receives written notice of the decision. NY Jurisprudence, Article 78, §190; Kaufman v. Anker, 66 A.D.2d 851, 852 (2nd Dept. 1978) (“period of limitation begins to run when the petitioner receives a copy of the administrative determination”) (emphasis in original); - 37 - Munice v. Board of Examiners of Board of Education of City of New York, 31 N.Y.2d 683, 684 (1972); Goldstein v. Niagara Falls Memorial Medical Center, 143 A.D.2d 515, 516 (4th Dept. 1988). See, also Castaways Motel v. Schuyler, 24 N.Y.2d at 126 in which this Court found that “implied refusal[s]” to grant relief impose an unfair burden on parties and their attorneys.”) Notice to a party provided circuitously through third parties or through informal correspondence is insufficient. David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of N.Y., Book 7B, CPLR C5513:2 (time to appeal does not start to run until notice of entry has been served; “[i]t makes no difference that the appellant may have notice of both the judgment or order and notice of the entry from other sources”). An Article 78 proceeding in the nature of mandamus to review, as is the case here, is an appeal from an administrative determination. There is no reason to afford greater leniency in examining the notice that triggers the statute of limitations – i.e. “knew or should have known” as the Authority argues – than is demanded of the prevailing party in litigation who is required to comply strictly with the requirements of CPLR 5513(a). Reynolds v. Dustman 1 N.Y.3d at 560 (requirement of CPLR 5513(a) that appeal must be taken within thirty days after service of notice of entry is strictly applied); Gramercy Park Residence Corp. v. - 38 - Ellman, 96 A.D.3d at 424; Dobess Realty Corp. v. City of New York, 79 A.D.2d at 352 (same). Indeed, there is reason not to afford greater leniency in these proceedings many of which are brought by “unsophisticated layperson[s]”. Dial v. Rhea, 111 A.D.3d at 722. When an administrative agency has failed to comply with the contractually mandated conditions precedent to the commencement of the proceeding, the court should refuse to allow the non-compliant agency to seek refuge behind the “knew or should have known” approach and shift the burden to the program participant to determine whether the notice that has been received is final and binding for purposes of judicial review. Id. Instead, the “courts should resolve any ambiguity created by the public body against it in order to reach a determination on the merits and not deny a party his day in court”. Carter v. State of New York, Executive Department, Division of Parole, 95 N.Y.2d 267, 270 (2000); Biondo v. New York State Board of Parole, 60 N.Y.2d 832, 834 (1983); Mundy v. Nassau County Civil Service Commission¸ 44 N.Y.2d 352, 358 (1978). ISCA Enterprises v. City of New York, 77 N.Y.2d 688, on which Appellant relies, is not to the contrary. In ISCA Enterprises, the parties challenged the constitutionality of the City’s procedures for in-rem tax foreclosures. ISCA, a mortgagee, did not receive notice in the manner to which it was entitled under the New York City Administrative Code although it did receive actual notice of the - 39 - foreclosure and the filing of the tax deeds with one and one half years left to run on the two year statute of limitations. Instead of commencing a court proceeding, ISCA filed an application with the Board of Estimate requesting release of the property. It did not file the constitutional challenge until administrative relief had been denied. As the Second Circuit explained, [A]s long as a party remains free to pursue a claim, the statute of limitations on that claim is not tolled while a party pursues related causes of action. ISCA Enterprises v. City of New York, 77 N.Y.2d 688, 697, 569 N.Y.S.2d 927, 931, 572 N.E.2d 610, 614 (1991), which, while discussing the law of the State of New York law, stated: ‘No section of law provides ... that the time for filing a cause of action is tolled during the period in which a litigant pursues a related, but independent cause of action.’) ABB Indus. Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351, 361 (2nd Cir. 1997). (citation omitted). The Authority’s argument that the petition is time-barred because Ms. Banos “knew or should have known” of the decision misconstrues the law and, if accepted, would ratify, if not encourage, the very type of casual notice that this Court deplored in Castaways Motel v. Schuyler when it rejected “implied” decisions which unfairly burden the public in favor of decisions that clearly state what the agency is and is not deciding. 24 N.Y.2d at 126-127. - 40 - The Appellate Division properly rejected the foregoing arguments and cases on which Appellant relies. Its decision should be affirmed. III-B APPELLANT’S CONCERN THAT TOLLING THE STATUTE OF LIMITATIONS BECAUSE OF ITS OWN FAILURE TO PROVIDE PROPER NOTICE UNDER WILLIAMS WILL CREATE ACCOUNTING AND FISCAL PROBLEMS ARE PROBLEMS OF ITS OWN MAKING. SUCH CONCERNS ARE OUT-WEIGHED BY VITAL SOCIAL AND PUBLIC PURPOSES Appellant’s argument that it will suffer budgeting and accounting problems if the statute of limitations is tolled due to its failure to comply with the Williams Consent Judgment is unavailing. The T-3 is final and binding for purposes of enforcement, even if it is not final and binding for purposes of judicial review. See, generally, New York Central Railroad Company v. Public Service Commission, 238 N.Y. 132, 136 (1924). Whether or not the Authority has satisfied the conditions precedent (or even served the T-3), both it and the Section 8 participant’s landlord will treat the T-3 as being final and binding for purposes of enforcement. This places Section 8 participants at risk of eviction thereby encouraging them to seek relief without undue delay. If the Authority has complied strictly with its obligations under the Williams Consent Judgment it is likely to prevail if and when those determinations are challenged, obviating its concern about budgeting issues. Only when the Authority has failed to comply strictly with the Williams Consent Judgment or has failed to - 41 - keep minimally adequate books and records of its actions, will it face budgeting and accounting problems. Those will be self-created problems about which the Authority should not be heard to complain. The NYCHA's concern that, under circumstances such as those presented in this case, the statute of limitations would indefinitely be tolled, fails to take into account that it is the NYCHA's own failure to abide by the requirements of the Williams first partial consent judgment which triggers such tolling. Inasmuch as the NYCHA controls the notices it provides to Section 8 participants, this concern can be alleviated by its simple adherence to the notice procedures and protocols set forth in the Williams first partial consent judgment, which it freely and voluntarily agreed to do prior to terminating a participant's Section 8 benefits. Dial v. Rhea 111 A.D.3d at 723. In evaluating Appellant’s budgeting concern, this Court is required to consider the capacities and circumstances of those whose rights are being affected (Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021 (1970))), the “nature of the governmental function involved and the substance of the private interest which is affected by the governmental action” (Escalera v. New York City Housing Authority, 425 F.2d 853, 861 (2nd Cir. 1970)) and the likely effect that termination of the right would have on the population that is at risk. Goldberg v. Kelly, 397 U.S. at 265, 90 S.Ct. at 1019. (“[t]he same governmental interests that counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it”). - 42 - Thus, the interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State's interest that his payments not be erroneously terminated, clearly outweighs the State's competing concern to prevent any increase in its fiscal and administrative burdens. Id., 397 U.S. at 266, 90 S.Ct. at 1019. The Section 8 rent subsidy at issue herein serves the vital social and public purposes of “aiding low-income families in obtaining a decent place to live and of promoting economically mixed housing”. 42 U.S.C. § 1437f(a). . Under the Section 8 program, participating tenants pay 30% of their household income toward the rent; the balance is paid from federal funds by the public housing agency administering the tenant’s section 8 subsidy. 42 U.S.C. § 1437f(a), (b) and (c). This enables low and very low income program participants to obtain decent, safe and sanitary housing that they otherwise could not afford. Thus, even if the indefinite tolling of the statute of limitations due to the Authority’s failure to comply with its contractual and legal obligations were to create budgeting and financial risks to be borne by the Authority, those risks are outweighed by the “nature of the governmental function involved and the substance of the private interest which is affected by the governmental action”. Escalera v. New York City Housing Authority, 425 F.2d at 861. The decision of the Appellate Division should be affirmed. - 43 - POINT IV CONTRARY TO APPELLANT’S ASSERTION, THE COURT BELOW DENIED APPELLANT’S MOTION TO DISMISS ON THE GROUND THAT THE PROCEEDING IS TIME-BARRED AND DID NOT MAKE A DETERMINATION ON THE MERITS. Instead of answering the petition, Appellant made a cross-motion to dismiss on the ground that the proceeding is time-barred. The Hon. Genine D. Edwards denied the motion, “find[ing] that the petition was timely and grantin[ing] respondent 60 days to submit an answer to the petition.” R 19. In seeking leave to appeal Justice Edwards’ Order, Appellant sought a stay of all proceedings in this matter. Leave to appeal was granted as was the stay. The Appellate Division affirmed. Contrary to the Authority’s contention, there has not been a ruling on the merits of the underlying petition, neither by Supreme Court when it denied the cross-motion to dismiss the petition, nor by the Appellate Division when it affirmed the motion court’s ruling. The denial was based strictly on statute of limitations grounds. Relying on Dial v. Rhea, which it decided on the same day, the Appellate Division correctly determined that the statute of limitations was not triggered by the alleged service of the T-3 due to the Authority’s undisputed failure - 44 - to comply with conditions precedent to service of such notice, specifically service of the warning notice and the T-1. If there had been a determination on the merits, the motion court would not have directed the Authority to interpose an answer. Instead, the petition would have been granted and Ms. Banos’ Section 8 subsidy would have been reinstated retroactive to the date of termination. Such a result would have flowed inexorably from the record herein. In her verified petition, Ms. Banos swears that she submitted her annual recertification documents in March 2010. R. 235. The petition categorically denies receipt of the warning notice, the T-1 and the T-3. R. 237-238. On June 29, 2010, upon receiving from her landlord a copy of a notice mailed to the landlord by the Authority informing the landlord that Ms. Banos’ Section 8 subsidy would be terminated on June 30, 2010 (R. 235, 244), she went to the Section 8 office to supply the documents specified in the notice sent to her landlord (R. 244) as being missing from her recertification package. Even though she went to the Authority’s office on June 29, 2010, one day prior to the scheduled termination date (R. 244) a representative of the Authority told her that her subsidy already had been terminated. R. 235, 248. At that time, she wrote to the Authority to request an explanation. R. 236, 248. Instead of granting her a hearing as required by the - 45 - Williams Consent Judgment3, the Authority merely responded that her subsidy had been terminated and that she should apply for public housing. R. 246. The Appellant’s papers do not contest Ms. Banos’ sworn statement that she never received the warning notice or the T-1. They are silent as to those documents. The moving papers do not include copies of those notices. Rather, and entirely consistent with Ms. Banos’ verified petition, the Appellant includes copies of two notices sent to Ms. Banos’ landlord. R. 116, 118. It also includes Ms. Banos’ handwritten letter to the Authority and the letter sent by the Authority to her landlord that she enclosed. R. 120-121. The allegation of service of the T-3 is fatally deficient. The Authority relies on the affidavit of Barry Liptzer (R. 200-202) who, at the relevant time, had a managerial position in the Brooklyn Leased Housing Office. Brooklyn is the borough in which Ms. Banos lives. Without describing in any detail the practices that were employed, he alleges in conclusory fashion that the Appellant followed regular business practices in preparing the T-3 for mailing and in preparing a mail log. His affidavit then claims that an employee picked up the prepared envelopes and brought them to the Mail Center for mailing. He pointedly does not address 3 The Williams consent judgment provides that, even if the subsidy has been terminated due to the participant’s failure to request a hearing in timely fashion, a “hearing officer shall nevertheless reopen the default upon a showing of good cause”. Williams consent judgment ¶22(e); R. 88. - 46 - the office procedures followed at the Brooklyn office for delivering mail from the mail center to the post office. The second affidavit, from Shawn Younger (R. 211-212) purports to explain how the Mail Center operated in the Bronx in 2010. This is entirely irrelevant, since Ms. Banos did not live in the Bronx, visit the Bronx office or have any other interaction with the Bronx office. Thus, there is a critical element lacking in the Authority’s demonstration of the ‘existence of an office practice geared to ensure the proper addressing or mailing of [correspondence]’”. Azriliant v. Eagle Chase Associates 213 A.D.2d at 575-576. The Accountable Mail Log offered by the Appellant as proof that the post office received and processed the mail in the regular course of business (R. 207) is equally flawed. As a business record for an agency the size of the Authority, it is inherently suspect since it contains only one entry, making it appear to be an excerpt from a business record, not the business record itself. The Log also has three material errors. The date at the upper right hand corner contains two of those errors. Originally dated “05/07/01”, it has been changed to “05/17/01”. R. 201. As changed – and there is no indication of when the change was made, whether before or after the document was stamped – the document is dated nine years prior to the date on which it is alleged to have been mailed. It is insignificant that the change allows the date of May 17 to conform to - 47 - the alleged postal stamp. The third mistake pertains to Ms. Banos’ mailing address. Her apartment number has been changed. This document does not rise to the level of trustworthiness and accuracy which is expected from business records. People v. Ortega, 15 N.Y.3d at 617. Finally, the Track & Confirm document generated by the Authority in 2012 (R. 209; reference is made to the date at the lower left hand side of the document) implicitly confirms that the document was not delivered to, and received by, Ms. Banos. If the motion court or the Appellate Division had reached the merits, the petition would have been granted and the Authority would have been ordered to reinstate Ms. Banos’ Section 8 subsidy retroactive to the date of termination. The motion court properly denied Appellant’s motion to dismiss and, following proper procedure, the motion court directed the Authority to interpose an answer. The Appellate Division affirmed. Neither court reached the merits. The decision of the Appellate Division should be affirmed. - 48 - CONCLUSION For the foregoing reasons, this Court should affirm the Order. Dated: July 28, 2014 Brooklyn, New York Respectfully submitted, SEYMOUR W. JAMES, ESQ. Attorney in Chief THE LEGAL AID SOCIETY FERDINAND UBOZOH, of Counsel Stephen Myers, of Counsel 111 Livingston Street, 7th Floor Brooklyn, New York 11201 (718) 422-2851 Fax (718) 722-3094 Attorney for Petitioner-Respondent - 49 - PRINTING SPECIFICATIONS STATEMENT I , Ferdinand Ubozoh, of counsel to SEYMOUR W. JAMES, ESQ., attorney of record for Petitioner-Respondent hereby certify that the foregoing brief is in compliance with 22 NYCRR §600.10(d)(1)(v), and that the foregoing brief was prepared on a computer using Microsoft Word. A proportionally spaced typeface was used, as follows: Typeface: Times New Roman Point size: 14 point for Text, 12 point for footnotes Line spacing: Double Word Count: The total number of words in this brief, inclusive of point headings and footnotes but exclusive of pages containing the table of contents, table of authorities and certificate of compliance, etc. is 11, 394.