In the Matter of Viola Dial, Respondent,v.John Rhea,, Appellant, 690 Gates, LP, Respondent.BriefN.Y.March 24, 2015 To be argued by: Michael Weisberg 15 Minutes APL-2014-00110 STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of VIOLA DIAL, 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, Respondent-Appellant, 690 GATES LP, Respondent-Respondent. BRIEF OF PETITIONER-RESPONDENT SOUTH BROOKLYN LEGAL SERVICES, INC. Michael Weisberg, Esq. 105 Court Street Brooklyn, NY 11201 Tel: (718) 237-5500 Fax: (718) 855-0733 Attorneys for Petitioner-Respondent mweisberg@sbls.org Completion date: August 28, 2014 i TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………………...iii PRELIMINARY STATEMENT…………………………….…………………..…1 COUNTERSTATEMENT OF QUESTIONS PRESENTED………………………5 STATEMENT OF FACTS…………………………………………………………6 ARGUMENT……………………………………………………………………...10 POINT I……………………………………………………………………….…..10 THE STATUTE OF LIMITATIONS TO CHALLENGE TERMINATION OF THE SECTION 8 SUBSIDY DOES NOT BEGIN TO RUN UNTIL NYCHA COMPLIES WITH EACH OF THE CONDITIONS PRECEDENT REQUIRED BY THE WILLIAMS CONSENT JUDGMENT…………………………..10 A. APPLYING FUNDAMENTAL PRINCIPLES OF CONTRACT INTERPRETATION, THE COURT MUST FIND THAT SERVICE OF EACH OF THE MANDATED NOTICES ARE CONDITIONS PRECEDENT TO TERMINATION OF THE SUBSIDY………………………….10 B. THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN BECAUSE NYCHA FAILED TO COMPLY WITH THE CONDITIONS PRECEDENT TO TERMINATION OF THE SUBSIDY……………………………………………………………14 POINT II…………………………………………………………………………..16 THE APPELLATE DIVISION CORRECTLY REFUSED TO FOLLOW THE LINE OF CASES HOLDING THAT THE STATUTE OF LIMITATIONS BEGINS TO RUN WHEN A PARTY KNEW OR SHOULD HAVE KNOWN OF THE DECISION BEING APPEALED; THOSE CASES ARE DISTINGUISHABLE……………………………………………………...16 ii POINT III…………………………………………………………………………20 THE APPELLATE DIVISION DID NOT IMPROPERLY DENY NYCHA AN OPPORTUNITY TO ANSWER BECAUSE THE PROCEDURAL ASPECTS OF THIS MATTER ARE INEXTRICABLY INTERTWINED WITH THE ISSUE TO BE DECIDED……………………………………………20 CONCLUSION…………………………………………………………………….22 iii TABLE OF AUTHORITIES Cases 90-92 Wadsworth Avenue Tenants Association v. City of New York Department of Housing Preservation and Development, 227 A.D.2d 331 (1 st Dep’t 1997)...........16 ABB Indus. Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351 (2 d Cir. 1997).19 Anderson v. Yungkau, 329 U.S. 482 (1947)……………………………………3, 13 Biondo v. New York State Board of Parole, 60 N.Y.2d 832, 834 (1983).………...19 Carter v. State of New York, Executive Department, Division of Parole, 95 N.Y.2d 267, 270 (2000)……………………………………………………………………18 Castaways Motel v. Schuyler, 24 N.Y.2d 120 (1969)………………………...17, 20 Citibank, N.A. v. Velazquez, 284 A.D.2d 364 (2 d Dep’t 2001)…………………...15 Crooms v. Corriero, 206 A.D.2d 275, 277 (1 st Dep’t 1994)………………….20, 21 Dial v. Rhea, 111 A.D.3d 720 (2 d Dep’t 2013)………………………………passim Fair v. Finkel, 284 A.D.2d 126 (1 st Dep’t 2001)……………………………….1, 11 Fox Ridge Motor Inn, Inc. v. Town of Southeast, N.Y., 85 A.D.3d 785 (2 d Dep’t 2011)……………………………………………………………………………2, 10 Funk v. Barry, 89 N.Y.2d 364 (1996)………………………………………….3, 14 Goldstein v. Niagara Falls Memorial Medical Center, 143 A.D.2d 515, 516 (4 th Dep’t 1988)………………………………………………………………………..17 Indovision Enterprizes v. Cardinal Export Corp., 44 A.D.2d 228 (1 st Dep’t 1974), aff’d 36 N.Y.2d 811 (1975)…………………………………………………...11, 13 iv 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)…………………………………..16, 19 Kaufman v. Anker, 66 A.D.2d 851, 852 (2 d Dep’t 1978)…………………………17 Matos v. Hernandez, 10 Misc.3d 1068(A) (S. Ct. N.Y. Co. 2005)………………...4 McComb v. Town of Greenville, 163 A.D.2d 369 (2 d Dep’t 1990)……………….16 Munice v. Board of Examiners of Board of Education of City of New York, 31 N.Y.2d 683, 684 (1972)…………………………………………………………...17 Mundy v. Nassau Co. Civil Service Comm’n¸ 44 N.Y.2d 352, 358 (1978)……….19 Nassau BOCES Council of Teachers v. Board of Coop. Educ. Servs. of Nassau Co., 63 N.Y.2d 100 (1984)……………………………………………………………..21 Quesada v. Hernandez, 5 Misc3d 1028(A) (S. Ct. N.Y. Co. 2004)……………4, 13 Redeemed Christian Church of God Tabernacle of Restoration v. Green, 62 A.D.3d 601 (1 st Dep’t 2009)………………………………………………………15 Reynolds v. Dustman, 1 N.Y.3d 559 (2003)………………………………..3, 14, 18 Riverkeeper, Inc. v. Crotty, 28 A.D.3d 957 (3 rd Dep’t 2006)……………………..16 Rivers v. Rhea, 2010 N.Y. Slip Op. 31894(U) (S. Ct. N.Y. Co.)…………………20 Shamblee v. Rhea, 110 A.D.3d 443 (1 st Dept. 2013)……………………………...16 Williams v. New York City Hous. Authority, 975 F.Supp. 317 (S.D.N.Y. 1997)………………………………………………………………...2, 11 Statutes New York Civil Practice Law and Rules 5513…………………………………3, 14 1 McKinney’s Consolidated Laws of New York, Statutes 232…………………...13 v Rules 22 N.Y.C.R.R. § 202.48…………………………………………………………..14 Treatises NY Jur., Article 78, §190…………………………………………………………17 David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of N.Y., Book 7B, CPLR C5513:2…………………………………………………..17 1 PRELIMINARY STATEMENT The procedure by which the New York City Housing Authority (hereinafter, “NYCHA”) may terminate a low-income tenant’s Section 8 subsidy is precisely set forth in the First Partial Consent Judgment in Williams v. New York City Hous. Auth, Case No. 81-CV-1801, docketed Oct. 17, 1984 (S.D.N.Y.) (RJW) (hereinafter, “Williams Consent Judgment” or “Judgment”). R. 59. The Williams Consent Judgment requires that NYCHA serve three separate notices on the tenant before it can terminate the tenant’s subsidy: first, a warning letter (R. 60 at ¶ 3(a)); second, a notice of termination (R. 60 at ¶ 3(b)); and finally, a notice of default. R. 61 at ¶ 3(e)). Termination of the subsidy “shall be made only after a determination in accordance with the procedures and provisions” contained in the Williams Consent Judgment. R. 59 at ¶ 1; see Fair v. Finkel, 284 A.D.2d 126, 127 (1 st Dep’t 2001) (“before assistance may be terminated, NYCHA must follow certain procedures, which include three separate written notices.”). Relying on contracts principles and reading the Williams Consent Judgment as a whole, the Appellate Division, Second Department, correctly held that NYCHA’s determination to terminate the subsidy cannot be considered final and binding on a subsidy recipient unless NYCHA has satisfied the “condition precedent” of properly serving all three notices required by the Judgment. Dial v. Rhea, 111 A.D.3d 720, 722 (2 d Dep’t 2013). A stipulation is a contract and should 2 be construed in accordance with contract principles and the parties’ intent. Fox Ridge Motor Inn, Inc. v. Town of Southeast, N.Y., 85 A.D.3d 785, 786 (2 d Dep’t 2011). “As with the interpretation of any contract, the stipulation must be read as a whole to determine the parties’ purpose and intent, giving practical interpretation to the language employed so that the parties’ reasonable expectations are realized.” Id. at 786-787. The Williams Consent Judgment was agreed to in partial settlement of Williams v. New York City Hous. Authority, which was brought “for injunctive relief to challenge on procedural due process grounds NYCHA’s methods of terminating Section 8 assistance.” 975 F.Supp. 317, 319 (S.D.N.Y. 1997). The purpose of the Williams Consent Judgment is to ensure due process prior to the termination of a tenant’s Section 8 subsidy. As subsidy recipients are always of low- or very-low income, termination of the subsidy always puts the tenant’s housing in jeopardy. Compliance with the procedures set forth in the Williams Consent Judgment is therefore of paramount importance in preserving the housing of subsidy recipients. Accordingly, the Judgment explicitly requires that NYCHA “shall” serve each of three notices prior to termination of the subsidy. Moreover, termination of the subsidy “shall be made only after a determination in accordance with the procedure and provisions” of the Judgment. In other words, there is no subsidy 3 termination absent compliance the procedures and provisions of the Judgment. “The word ‘shall’ is ordinarily the ‘language of command’” (Anderson v. Yungkau, 329 U.S. 482, 485 (1947)); the use of “shall” throughout the Judgment underscores the parties’ intent to ensure that Section 8 participants receive the prescribed notices before NYCHA could terminate their benefits. The conditions precedent to termination of the Section 8 subsidy required by the Williams Consent Judgment are analogous to those contained in Civil Practice Law and Rules 5513(a), which require of entry of a judgment and order and notice of such entry to the opposing party. A party’s time to take an appeal from an order or judgment does not begin to run absent strict compliance with the rule. Reynolds v. Dustman, 1 N.Y.3d 559, 560 (2003); see, also Funk v. Barry, 89 N.Y.2d 364, 368, fn. (1996) (“failure by the prevailing party to expeditiously submit a judgment for entry carries its own sanctions, including…the indefinite extension of the losing party’s time in which to take an appeal.”) (internal citations omitted). The prevailing party need merely comply with the ministerial dictates of C.P.L.R. Rule 5513 to start the clock on the aggrieved party’s time to appeal. Similarly, to terminate a participant’s Section 8 subsidy and start the clock on the participant’s right to appeal via an Article 78 proceeding, NYCHA need merely comply with the three-notice requirement to which it agreed. See Dial v. Rhea, 111 A.D.3d at 723 (“Inasmuch as the NYCHA controls the notices it 4 provides to Section 8 participant, this concern can be alleviated by its simple adherence to the notice procedures and protocols set forth in Williams first partial consent judgment, which is freely and voluntarily agreed to do….”). Yet NYCHA seems inherently unable, or perhaps unwilling, to comply with the notice provisions of the Williams Consent Judgment. See Matos v. Hernandez, 10 Misc.3d 1068(A) (S. Ct. N.Y. Co. 2005)(“[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.”); Quesada v. Hernandez, 5 Misc3d 1028(A) (S. Ct. N.Y. Co. 2004) (“This case is yet another glaring example of respondent Housing Authority’s kamikaze refusal to comply with the letter of the Williams Consent Judgment.”). 5 COUNTERSTATEMENT OF QUESTIONS PRESENTED 1. Does a Section 8 participant’s time to appeal a determination to terminate his/her Section 8 subsidy start to run when that party receives the Notice of Default (“T-3”) even if NYCHA has failed to comply with the contractually mandated conditions precedent to service of the T-3? The Appellate Division answered in the negative. 2. Did the Appellate Division err in affirming the lower court’s order denying NYCHA’s cross-motion to dismiss and granting the petition without giving NYCHA an opportunity to answer the petition, where NYCHA already submitted its proof regarding service of the contractually mandated notices? The Appellate Division did not address this issue. 6 STATEMENT OF FACTS Ms. Dial is a 61-year-old grandmother who lives with her young grandchild. R. 44 at ¶ 5. Her sole source of income when the underlying Article 78 proceeding was commenced was Supplemental Security Income in the amount of $690.00 per month. Id. She suffers from numerous health conditions, including diabetes, heart disease, arthritis, and hypertension. Id. She has resided at her current address since around May 2003. R. 44 at ¶ 6. She began receiving a Section 8 subsidy in 2004. Id. In December 2008, Ms. Dial was notified by her landlord, 690 Gates LP (hereinafter, “690 Gates”), that it was not receiving any Section 8 subsidy payments on her behalf from NYCHA. R. 45 at ¶ 14. NYCHA purports to have terminated Ms. Dial’s Section 8 subsidy based on her alleged failure to submit an annual review package and proof of income. R. 52. However, Ms. Dial could not have submitted an annual review package because she did not receive one for the requested period. R. 44 at ¶ 8. Notification from her landlord was the first indication Ms. Dial received that her subsidy had been terminated or that she had failed in any way to comply with Section 8 program requirements. Ms. Dial denies that NYCHA sent her a warning letter (R. 44 at ¶ 9), a Notice of Termination (T-1) (R. 44 at ¶ 11), or a Notice of Default (T-3). R. 45 at ¶ 13. 7 Promptly after receiving notification from her landlord that her Section 8 subsidy seemed to have been terminated, Ms. Dial wrote a letter to NYCHA in which she stated that she had never received an annual review package and requesting that the matter be “taken care of.” R. 53; R. 45 at ¶ 15. NYCHA responded with an undated letter wherein it indicated that it had treated Ms. Dial’s letter as a request for “restoration of the Section 8 Program” and state that “due to the passage time (sic) [Ms. Dial] could not be restored back on the Section 8 program.” R. 54; R. 45 at ¶ 16. By letter dated September 1, 2010, Ms. Dial again notified NYCHA that she had never received any notification that she was due to recertify for her Section 8 subsidy, that she was not aware that NYCHA stopped paying the Section 8 subsidy to her landlord, and that had she been notified that she was scheduled to recertify for her Section 8 subsidy, she would have complied with the necessary requirements. R. 55; R. 45 at ¶ 17. In the letter she requested instructions for how to restore her subsidy. Id. NYCHA responded via letter dated September 15, 2010, wherein it stated that it was “unable” to restore Ms. Dial’s Section 8 subsidy and that her subsidy was terminated for failure to comply with the annual recertification process. R. 56; R. 45 at ¶ 18. Ms. Dial commenced this proceeding on or around May 18, 2011. R. 39. By notice of cross-motion dated August 8, 2011, NYCHA moved to dismiss the 8 proceeding as barred by the statute of limitation. R. 145. The cross-motion is supported by two affidavits (Aff. of Sharaya Pettway, R. 227; Aff. of Shawn Younger, R. 233) and two accountable mail logs. T-1 Accountable Mail Log, R. 294; T-3 Accountable Mail Log, R. 232. The cross-motion contains no allegations concerning or support for the alleged service of any warning letter. The Pettway affidavit alleges that she prepared the T-3 notice for certified/accountable mailing by inserting the document into a window envelop so that the address showed through the window and by affixing a “certified mailer” to the envelop. R. 228 at ¶ 3. It further alleges that she prepared an accountable mail log that contains Ms. Dial’s name and address. R. 228 at ¶ 4; R. 232. The affidavit makes other allegations that, by the terms of the affidavit, were not within the personal knowledge of Ms. Pettway. Specifically, the affidavit alleges that, “[f]ollowing regular business practice, at the same time, anther copy of the T-3 Notice was prepared for regular mail….” (R. 228 at ¶ 5) and that, “[t]he envelopes were then deposited into an ‘out box.’ From the ‘out box,’ the envelopes were picked up by a mailroom employee who took the envelopes to Mail Center at 250 Broadway for mailing, one by regular mail and one by certified mail.” R. 228 at ¶ 6. The accountable mail log referred to in the Pettway affidavit contains no indication that it was in fact prepared by Ms. Pettway; it does contain the notation “T3 Mr. James October.” R. 232. 9 The Younger affidavit contains no allegations based on any personal knowledge Mr. Younger may have regarding the preparation and mailing of the T- 1 and T-3 notices. Instead, the Younger affidavit purports to “explain the Mail Center’s role in collecting and sending mail from the Housing Authority’s Brooklyn Leased Housing Department.” R. 233 at ¶ 1. Neither affidavit addresses the preparation and mailing of the T-1 notice. There is an accountable mail log that contains Ms. Dial’s name and address and that contains the notations “T1S,” “Date Mailed 7/17/2007,” and “S. Pettway October.” R. 294. Ms. Dial denies having received the T-3 notice. R. 45 at ¶ 13. 10 ARGUMENT POINT I THE STATUTE OF LIMITATIONS TO CHALLENGE TERMINATION OF THE SECTION 8 SUBSIDY DOES NOT BEGIN TO RUN UNTIL NYCHA COMPLIES WITH EACH OF THE CONDITIONS PRECEDENT REQUIRED BY THE WILLIAMS CONSENT JUDGMENT. The Appellate Division correctly held that NYCHA has the burden of satisfying the mandatory conditions precedent of the Williams Consent Judgment by serving properly serving each of the required notices before its determination to terminate a participant’s subsidy can be considered final and binding so as to trigger the running of the statute of limitations. The Court’s holding is firmly grounded in principles of contract interpretation and New York State procedural law. It also recognizes the obligations agreed to by NYCHA in the Williams Consent Judge to provide adequate notice to participants before terminating assistance. A. APPLYING FUNDAMENTAL PRINCIPLES OF CONTRACT INTERPRETATION, THE COURT MUST FIND THAT SERVICE OF EACH OF THE MANDATED NOTICES ARE CONDITIONS PRECEDENT TO TERMINATION OF THE SUBSIDY. A stipulation is a contract and should be construed in accordance with contract principles and the parties’ intent. E.g., Fox Ridge Motor Inn, Inc. v. Town of Southeast, N.Y., 85 A.D.3d at 786. “As with the interpretation of any contract, 11 the stipulation must be read as a whole to determine the parties’ purpose and intent, giving practical interpretation to the language employed so that the parties’ reasonable expectations are realized.” Id. at 786-787. Every part of a written agreement should be interpreted to give effect to its general purpose. Indovision Enterprizes v. Cardinal Export Corp., 44 A.D.2d 228, 230 (1 st Dep’t 1974), aff’d 36 N.Y.2d 811 (1975). The Williams Consent Judgment was one result of a federal lawsuit brought against NYCHA to challenge on due process grounds its methods of terminating Section 8 assistance. Williams v. New York City Hous. Auth., 975 F.Supp. at 319. In agreeing to the Judgment, NYCHA voluntarily agreed to a scheme by which a participant’s Section 8 subsidy could not be terminated absent NYCHA’s compliance with a tripartite notice system. The Judgment sets forth requirements concerning the contents of each notice, the timing of its service, and the methods of such service. These notice requirements “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.” Dial v. Rhea, 111 A.D.3d at 722. Proper service of all required notices is mandatory and necessary for termination of a participant’s Section 8 subsidy. Fair v. Finkel, 284 A.D.2d at 129. 12 The Williams Consent Judgment makes it abundantly clear that service of each notice is an absolute requirement that is necessary to be fulfilled prior to termination of the subsidy. With respect to the warning letter, it requires: “the authority shall take the following steps….” R. 60 at ¶ 3. With respect to the notice of termination (T-1), it requires: “a notice in Spanish and English shall be sent to the participant by certified mail with a copy by regular mail….” R. 60 at ¶ 3(b). With respect to the notice of default (T-3), it requires: “a Notice of Default, in Spanish and English, shall be mailed to the participant.” R. 61 at ¶ 3(e). These requirements are prefaced in the first paragraph of the Judgment with the peremptory declaration that “[t]ermination of the subsidy or eligibility of any participant I the Section 8 Housing Assistance Program for Existing Housing, administered by the New York City Authority…shall be made only after a determination in accordance with the procedures and provisions herein.” R. 59 at ¶ 1. The use of the word “shall” in this context means that any purported termination of benefits is not final and binding absent strict compliance with each of the notice provisions contained in the Judgment. “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 13 McKinney’s Consolidated Laws, Statutes § 232. “The word ‘shall’ is ordinarily the ‘language of command.’” Anderson v. Yungkau, 329 U.S. 482, 485 (1947). Undoubtedly, at the time the Williams Consent Judgment was entered into the parties did not imagine the amount of time and resources that would be spent litigating whether NYCHA had complied with the straightforward administrative dictates of the Judgment. In light of the Williams lawsuit, a due process challenge to NYCHA’s termination procedures at the time, the parties must have believed that by entering into the Williams Consent Judgment they were ensuring that future subsidy participants would obtain adequate notice as provided by the terms of their agreement. No one could have predicted that NYCHA would repeatedly “bang[…] its head against the procedural wall of the Williams Consent Decree” (Quesada v. Hernandez, 5 Misc.3d 1068(A)) instead of simply complying with its straightforward imperatives. In other words, the Williams Consent Judgment manifests a clear intent by the parties to subject NYCHA to a strict procedural regime for the benefit of Section 8 subsidy recipients. Failure to affirm the Appellate Division would countenance NYCHA’s insistent failure to abide by that regime and would render the Williams Consent Judgment a nullity. See Indovision Enterprizes v. Cardinal Export Corp., 44 A.D.2d at 230 (“A businessman entering into a contract is not to be supposed to be entering into a futile or meaningless agreement. A provision that 14 allows either party by his own breach to excuse his own performance is a commercial absurdity. Every part of a written agreement should be interpreted to give effect to its general purpose.”). B. THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN BECAUSE NYCHA FAILED TO COMPLY WITH THE CONDITIONS PRECEDENT TO TERMINATION OF THE SUBSIDY. The conditions precedent to termination of the Section 8 subsidy required by the Williams Consent Judgment are analogous to those contained in Civil Practice Law and Rules 5513(a), which require of entry of a judgment and order and notice of such entry to the opposing party. A party’s time to take an appeal from an order or judgment does not begin to run absent strict compliance with the rule. Reynolds v. Dustman, 1 N.Y.3d 559, 560 (2003); see, also Funk v. Barry, 89 N.Y.2d 364, 368, fn. (1996) (“failure by the prevailing party to expeditiously submit a judgment for entry carries its own sanctions, including…the indefinite extension of the losing party’s time in which to take an appeal.”) (internal citations omitted). The prevailing party must comply with the ministerial dictates of C.P.L.R. Rule 5513 to start the clock on the aggrieved party’s time to appeal. In those situations where settlement of a judgment or order is required, such settlement is an additional condition precedent to service of a notice of entry. 22 N.Y.C.R.R. § 202.48. The failure to make a timely submission of the proposed judgment or order “shall be deemed abandonment of the motion or action, unless 15 for good cause shown.” Id.; Redeemed Christian Church of God Tabernacle of Restoration v. Green, 62 A.D.3d 601, 601 (1 st Dep’t 2009); Citibank, N.A. v. Velazquez, 284 A.D.2d 364, 364 (2 d Dep’t 2001). Similarly, to terminate a participant’s Section 8 subsidy and start the clock on the participant’s right to appeal via an Article 78 proceeding, NYCHA need merely comply with the three-notice requirement to which it agreed. The Appellate Division specifically addressed NYCHA’s professed concern that the statute of limitations could indefinitely be tolled if NYCHA were required to hew to the strict mandates of the Williams Consent Judgment: “Inasmuch as the NYCHA controls the notices it provides to Section 8 participant, this concern can be alleviated by its simple adherence to the notice procedures and protocols set forth in Williams first partial consent judgment, which is freely and voluntarily agreed to do prior to terminating a participant’s Section 8 benefits.” See Dial v. Rhea, 111 A.D.3d at 723. As with the steps a party must take to settle a judgment or order and to seek entry of a judgment or order, NYCHA’s compliance with its contractually agreed to obligations in the Williams Consent Judgment is wholly within its control. Because NYCHA failed to comply with the Judgment with respect to termination of Ms. Dial’s subsidy, the Court should affirm the order of the Appellate Division. 16 POINT II THE APPELLATE DIVISION CORRECTLY REFUSED TO FOLLOW THE LINE OF CASES HOLDING THAT THE STATUTE OF LIMITATIONS BEGINS TO RUN WHEN A PARTY KNEW OR SHOULD HAVE KNOWN OF THE DECISION BEING APPEALED; THOSE CASES ARE DISTINGUISHABLE. NYCHA 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 (1 st Dep’t 1997); McComb v. Town of Greenville, 163 A.D.2d 369 (2 d Dep’t 1990); and Riverkeeper, Inc. v. Crotty, 28 A.D.3d 957 (3 rd Dep’t 2006) for the proposition that the statute of limitations begins to run when the party knew or should have known of the administrative determination. 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. NYCHA also has misstated the issue and, consequently, the holding in Shamblee v. Rhea, 110 A.D.3d 443 (1 st Dept. 2013). Ms. Shamblee acknowledged 17 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 NYCHA 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 Jur., Article 78, §190; Kaufman v. Anker, 66 A.D.2d 851, 852 (2 d Dep’t 1978) (“period of limitation begins to run when the petitioner receives a copy of the administrative determination”) (emphasis in original); 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 Dep’t 1988). See, also Castaways Motel v. Schuyler, 24 N.Y.2d 120 (1969) 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 18 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). 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 19 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 NYCHA 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 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 (2 nd Cir. 1997) (citation omitted). 20 NYCHA’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. The Appellate Division properly rejected the foregoing arguments and cases on which NYCHA relies. Its decision should be affirmed. POINT III THE APPELLATE DIVISION DID NOT IMPROPERLY DENY NYCHA AN OPPORTUNITY TO ANSWER BECAUSE THE PROCEDURAL ASPECTS OF THIS MATTER ARE INEXTRICABLY INTERTWINED WITH THE ISSUE TO BE DECIDED. Although in most instances the respondent in an Article 78 proceeding should be provided the opportunity to answer after a motion to dismiss the petition is denied, a court may deny a respondent the ability to answer where the procedural aspects of a matter are inextricably intertwined with the issue to be decided, the question presented is straightforward and there is no reason to protract the proceeding. Crooms v. Corriero, 206 A.D.2d 275, 277 (1 st Dep’t 1994); see Rivers v. Rhea, 2010 N.Y. Slip Op. 31894(U) (S. Ct. N.Y. Co.) (denying NYCHA’s cross- 21 motion to dismiss on timeliness grounds and granting the petition). Nassau BOCES Council of Teachers v. Board of Coop. Educ. Servs. of Nassau Co., 63 N.Y.2d 100 (1984), on which NYCHA relies, is distinguishable. In that case, the respondent’s motion to dismiss had been granted based on a challenge to the petitioner union. The Court held that it was prejudicial to petitioner to not require respondent to answer the petition before dismissing it. Id. at 103. Unlike in the companion case Banos v. Rhea, 111 A.D.3d 707 (2 d Dep’t 2013), the motion court here granted Ms. Dial’s petition in the same order in which it denied NYCHA’s cross-motion to dismiss the petition as time-barred, which order was affirmed by the Appellate Division. The court did so upon a finding that NYCHA failed to serve the warning letter and that there was insufficient proof that the notice of termination and notice of default were properly mailed. R. 34. The rule normally permitting a respondent to answer the petition after denial of a motion to dismiss should not be construed to give a respondent two bites at the apple by permitting the submission of duplicative pleadings on the merits. Crooms v. Corriero, 206 A.D.2d at 277. NYCHA’s moving papers to the motion court set forth in detail the requirements of the Williams Consent Judgment and NYCHA’s alleged compliance with them in this case. Permitting NYCHA to answer the petition would have been duplicative and a needless protraction of the proceeding. 22 CONCLUSION For the foregoing reasons, this Court should affirm the order below. Dated: August 28, 2014 Brooklyn, New York Respectfully submitted, SOUTH BROOKLYN LEGAL SERVICES, INC. Michael Weisberg, Esq. 105 Court Street Brooklyn, NY 11201 Tel: (718) 237-5500 Fax: (718) 855-0733 Attorneys for Petitioner-Respondent
