In the Matter of Viola Dial, Respondent,v.John Rhea,, Appellant, 690 Gates, LP, Respondent.BriefN.Y.March 24, 2015To Be Argued By: Melissa R. Renwick 10 minutes requested 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, L.P., Respondent-Respondent. REPLY BRIEF OF RESPONDENT-APPELLANT DA VID 1. FARBER General Counsel Nancy M. Harnett, Of Counsel Corina L. Leske, Of Counsel Melissa R. Renwick, Of Counsel New York City Housing Authority 250 Broadway, 9th Floor New York, NY 10007 Tel: (212) 776-5010 Fax: (212) 776-5404 melissa.renwick@nycha.nyc.gov Attorneys for Respondent-Appellant Completion date: October 10, 2014 Reproduced on recycled paper TABLE OF CONTENTS PRELIMINARY STATEMENT ......................................................... ; ................ 1 ARGUMENT ...................................................................................................... 10 1. THIS PROCEEDING IS TIME-BARRED BASED ON PETITIONER'S RECEIPT OF THE T-3 NOTICE ................................ 10 A. Williams Does Not Require the Housing Authority to Prove It Mailed the Warning Letter and the T-l Notice to Avail Itself of the Statute of Limitations Defense ..................... 10 1. Petitioner Ignores and Distorts the Plain Language of Williams ............................................. 10 2. Enforcing the Statute of Limitations Is Consistent With the General Purpose of Williams ................ 17 3. The T-3 Notice Is Not Analogous to a Notice of Entry ......... 22 B. The Housing Authority Proved It Mailed the.T-3 Notice ................................................................ 24 C. Petitioner Did Not Rebut the Presumption She Received the T-3 Notice ......................................................... 32 II. THIS PROCEEDING IS TIME-BARRED BASED ON WHEN PETITIONER KNEW OF THE THE HOUSING AUTHORITY'S DETERMINATION ......................... 35 III. THE SECOND DEPARTMENT ERRED IN NOT AFFORDING THE HOUSING AUTHORITY AN OPPORTUNITY TO ANSWER ................................................. · ..... 47 1 IV. THE SECOND DEPARTMENT ERRED IN ORDERlNG THE HOUSING AUTHORITY TO MAKE RETROACTIVE SUBSIDY PAYMENTS .......................... 50 CONCLUSION .................................................................................................. 52 11 TABLE OF AUTHORITIES Page(s) Federal Cases Morgan v. Sylvester, 125 F. Supp. 380 (S.D.N.Y. 1954), affd, 220 F.2d 758 (1955), cert. denied, 350 U.S. 867 (1955) .......................... 16 Williams v. New York City HOlls. Auth., Case No. 81-CV -1801, docketed October 17, 1984 (S.D.N. Y.) ...................................................... passim Williams v. New York City Hous. Auth., 975 F. Supp. 317 (S.D.N.Y. 1997} ..................................................................... 13 State Cases 90-92 Wadsworth Ave. Tenants Ass'n v. City of New York Dep't of HOlls. Preserv. & Dev., 227 A.D.2d 331(1st Dep't 1996) ................................. 41 232 Broadway Corp. v. Calvert Ins. Co., 149 A.D.2d 694 (2d Dep't 1989) ................................................................. 20,32 Badio v. Liberty Mut. Fire Ins. Co., 12 A.D.3d 229 (1st Dep't 2004) ................................................................... 25,33 Banos v. Rhea, 111 A.D.3d 707 (2d Dep't 2013) ......................................................... 2,3, 17, 19 Basile v. Albany ColI. of Ph arm., 279 A.D.2d 770 (3d Dep't 2001) ................. 31 Best Payphones, Inc. v. Department of Info. Tech. & Telcomms., 5 N.Y.3d 30 (2005) ............................................................................................. 20 Bianca v. Frank, 43 N.Y.2d 168 (1977) ............................................................. 43 Biondo v. New York State Bd. of Parole, 60 N.Y.2d 832 (1983) ..................... 39 Bombay Realty Corp. v. Magna Carta, Inc., 100 N.Y.2d 124 (2003) ............... 11 111 Page(s) State Cases (continued) Bonilla v. Rotter, 36 A.D.3d 534 (1st Dep't 2007) ...................................... 37, 46 Carter v. State of New York, Exec. Dep't, Div. of Parole, 95 N.Y.2d 267 (2000) ......................................................................................... 39 Castaways Motel v. Schuyler, 24 N.Y.2d 120 (1969) ....................................... 40 Cloverleaf Realty of N.Y., Inc. v. Town ofWawayanda, 43 A.D.3d 419 (2d Dep't 2007) ................................................................... 18, 44 Cole v. New York City Hous. Auth., 2013 N.Y. Misc. LEXIS 6075, 2013 NY Slip Op 33284(U), (Sup. Ct. N.Y. Co. Dec. 20,2013) .................... ,. 17 Consedine v. Portville Ctr. Sch. Dist., 12 N.Y.3d 286 (2009) ..................... 13, 17 Crooms v. Corriero, 206 A.D.2d 275 (1st Dep't 1994) ..................................... 48 Fair v. Finkel, 284 A.D.2d 126 (1st Dep't 2001) ......................................... 16, 17 Fernandez v. New York City Rous. Auth., 284 A.D.2d 202 (1st Dep't 2001) ........................................................... 15, 47, 48 First Nat'l Stores, Inc. v. Yellowstone Shopping Ctr., Inc., 21 N.Y.2d 630 (1968) ......................................................................................... 21 Futterman v. New York State Div. ofHous. & Cmty. Renewal, 264 A.D.2d 593 (1st Dep't 1999) ....................................................................... 33 Goldmark v. Keystone & Grading Corp., 226 A.D.2d 143 (1st Dep't 1996) ...................................................................... · 16 Green v. Hernandez, 6 Misc. 3d 1041A (Sup. Ct. N.Y. Co. Feb. 1,2005) ........ 16 Greenfield v. Philles Records, 98 N.Y.2d 562 (2002) ....................................... 21 IV Page(s) State Cases (continued) Gryphon Domestic VI, LLC v. APP lnt'l Finance Co., 41 A.D.3d 25 (1st Dep't 2007) ..................................................................... 20, 32 ISCA Enters. v. City of New York, 77 N.Y.2d 688 (1991) ......................... 18, 41 Kaufman v. Anker, 66 A.D.2d 851 (2d Dep't 1978) ......................................... 42 Lopez v. New York City Rous. Auth., 93 A.D.3d 448 (1st Dep't 2012), rev'g 30 Misc. 3d 1237(A) (Sup. Ct. N.Y. Co. Feb. 4, 2011) ............................... 15, 16 Matos v. Hernandez, 10 Misc. 3d 1068(A) (Sup. Ct. N.Y. Co. Oct. 19, 2005) ................................................................ 19, 20 M & D Contractors v. New York City Dep't of Health, 233 A.D.2d 230 (1st Dep't 1996) ................................................................. 18, 44 Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663 (2d Dep't 1984) ................................................................. 47, 48 Mundy v. Nassau County Civil Servo Comm'n, 44 N.Y.2d 352 (1978) ............ 40 Munice V. Board ofExam'rs ofBd. ofEduc., 31 N.Y.2d 683 (1972) ......... 42, 44 Nassau BOCES Cent. Council of Teachers V. Board of Coop. Educ. Servs., 63 N.Y.2d 100 (1984) ......................................................................................... 49 Nassau Ins. Co. v. Murray, 46 N.Y.2d 828 (1978) ...................................... 25, 33 Olivares V. Rhea, 2014 N.Y. App. Div. LEXIS 5384 (2d Dep't JuI. 23, 2014) ............................................................... · ....... · ...... · ...... · 36 O'Neill V. Pfau,·_N.Y.2d_, 2014 N.Y. LEXIS 1364 (2014) .................. 36, 43 Parks V. New York City Hous. Auth., 100 A.D.3d 407 (1st Dep't 2012) ........................................................... 15, 16, 17 v Page(s) State Cases (continued) Preferred Mut. Ins. Co. v. Donnelly, 22 N.Y.3d 1169 (2014), aff'd, 111 A.D.3d 1242 (4th Dep't 2013) .................................................... 25, 28 Quesada v. Hernandez, 5 Misc. 3d 1028A (Sup. Ct. N.Y. Co. Oct. 27, 2004) ...................................................................... 19 Raschel v. Rish, 69 N.Y.2d 694 (1986) ............................................................. 42 Reynolds v. Dustman, 1 N.Y.3d 559 (2003) ...................................................... 23 Riverkeeper, Inc. v. Crotty, 28 A.D.3d 957 (3d Dep't 2006) ............................ 44 Riverside S. Planning Corp. v. CRPlExtell Riverside, L.P., 60 A.D.3d 61 (1st Dep't 2008) ........................................................................... 12 Roldan v. Allstate Ins. Co., 149 A.D.2d 20 (2d Dep't 1989) ........ ~ .................... 35 Ronnen v. Ajax Elec. Motor Corp., 88 N.Y.2d 582 (1996) ............................... 11 Roundtree v. Singh, 143 A.D.2d 995 (2d Dep't 1988) ...................................... 15 Saunders v. Rhea, 92 A.D.3d 602 (1st Dep't 2012) ........................................... 18 Shamblee v. Rhea, 110 A.DJd 443 (lst Dep't 2013) .............................. 7,38,39 . Solnick v. Whalen, 49 N.Y.2d 224 (1980) ......................................................... 18 State-Wide Ins. Co. v. Simmons, 201 A.D.2d 655 (2d Dep't 1994) ................. 26 Summerville v. City of New York, 97 N.Y.2d 427 (2002) .......................... 51, 52 Szaro v. New York State Div. ofHous. & Cmty. Renewal, 13 A.D.3d 93 (1st Dep't 2004) ........................................................................... 31 Two Guys from Harrison - N.Y. v. S.F.R. Realty Assocs., 63 N.Y.2d 396 (1984) ......................................................................................... 11 VI Page(s) . State Cases (continued) Village of Westbury v. Department of Transp., 75 N.Y.2d 62 (1989) .............. 42 Westmoreland Coal Co., 100 N.Y.2d 352 (2003) .............................................. 11 Zumpano v. Quinn; 6 N.Y.3d 666 (2006) ................................. : ........................ 18 Federal Statutes and Regulations 24 C.F.R. § 982 ................................................................................................... 22 24 C.F .R. § 982.311 ............................................................................................ 50 24 C.F.R. § 982.401 (a)(3) .................................................................................. 51 24 C.F.R. § 982.405(a) ....................................................................................... 51 24 C.F.R. § 982.455 ............................................................................................ 50 24 C.F.R. § 985.1 ................................................................................................ 45 24 C.F.R. § 985.3(c) ..................................................................................... 45, 46 24 C.F .R. § 985.1 06 ............................................................................................ 46 24 C.F.R. § 985.017(f) ....................................................................................... 46 42 U.S.C. § 1437f ............................................................................................... 22 State Statutes CPLR §§ 201-216 ................................................................................•.............. 22 ·CPLR § 217(1) ......................................................................................... 1, 12, 15 Vll Page(s) State Statutes (continued) CPLR § 218 ........................................................................................................ 22 CPLR § 5512 ................... ~ .................................................................................. 22 CPLR § 5513 ....................................................................................................... 23 CPLR § 5514 .: .................................................................................................... 23 CPLR § 5515 ...................................................................................................... 22 CPLR § 5519(a)(I) ......................................................................................... 9, 51 CPLR § 5520 ...................................................................................................... 23 CPLR § 7804(f) ................................................................. : ................................ 47 22 N.Y.C.R.R. § 202.48 ..................................................................................... 24 Vlll Respondent-Appellant Shola Olatoye, as Chair of the New York City Housing Authority ("Housing Authority"), submits this brief in reply to the briefs of Petitioner-Respondent Viola Dial ("Petitioner") and Respondent-Respondent 690 Gates, L.P. ("690 Gates") and in further support of its appeal. PRELIMINARY STATEMENT The Housing Authority established Petitioner's challenge to the termination of her participation in the Section 8 rental subsidy program is untimely because she did not commence this proceeding within four months after she received the Housing Authority's final and binding determination (the "T-3 Notice"), which under the consent judgment in Williams v. New York City Hous. Auth., Case No. 81-CV-1801, docketed October 17, 1984 (S.D.N.Y.) (RJW) ("Williams"), triggers the running of the statute of limitations. In theory, Petitioner agrees consent judgments should be construed in accordance with contract principles. In practice, she ignores the most fundamental of those principles. Although courts must enforce a contract in accordance with its plain language and ascribe meaning to every term, not once in her brief does Petitioner even mention, much less give effect to, the statute-of-limitations provision in Williams. Williams states, "for the purposes of Section 217 [on the statute of limitations for challenging final agency action] and Article 78 of the Civil Practice Law and Rules [onjudicial review,] the 1 determination to terminate a subsidy shall, in all cases, become final and binding ... upon receipt of ... [the T-3] Notice of Default." Notwithstanding the plain language in Williams that the T-3 Notice is the final determination in all cases, Petitioner argues the Second Department correctly ruled there was no final determination in this case because the Housing Authority did not prove it also sent the warning letter and the T-l Notice to Petitioner, and therefore, the statute of limitations either never began to run or was indefinitely tolled. As the First Department and the dissent in the companion case of Banos v. Rhea, 111 A.D.3d 707, 711 (2d Dep't 2013), properly recognize, Williams does not make the finality of the T-3 Notice and the running of the statute of limitations contingent on a tenant's receipt of a warning letter and T-I Notice. Although the statute-of-limitations provision includes a reference to another paragraph in Williams, the effect of that reference is only to clearly identify the T-3 Notice and distinguish it from other notices described in the document. If the parties to Williams had intended to make the running of the statute of limitations contingent on a tenant's receipt of all three notices, they would clearly have so stated instead of, as 690 Gates contends, circuitously encrypting the concept in vague references to a series of paragraphs. Unlike Petitioner and 690 Gates who either ignore the statute-of-limitations provision in Williams or create conditions precedent where none exists, the First 2 Department, the dissent in Banos, and the Housing Authority give effect to both the notice requirements and the statute-of-limitations provision. Williams requires the Housing Authority to mail the warning letter, T-I Notice, and T-3 Notice to terminate a tenant's participation in the Section 8 program, but a tenant who wishes to challenge a termination must timely raise any claim she did not receive those notices in violation of due process. The First Department, the dissent in Banos, and the Housing Authority also respect what Petitioner describes as the general purpose of Williams to provide due process. Petitioner and 690 Gates ignore that Williams serves a second purpose in support of another important public policy: in exchange for implementing a process with multiple notices more onerous than federal regulations require, the Housing Authority obtained clarity concerning the fmality of the administrative process. Thus, Williams protects the Housing Authority against stale claims like Petitioner's in this case and permits it to rationally plan and budget by designating the T-3 Notice as the final and binding determination from which the four-month statute of limitations begins to run. Petitioner attempts to circumvent the statute of limitations by contending her receipt of the termination notices is of "paramount importance." There is no such toll or extension. It would vitiate the statute of limitations because virtually all litigants believe their claims are of paramount importance. Even if there were a 3 paramount-importance toll or extension, Petitioner would not be able to avail herself of it because she did not act as if her claim was important. She claims she did not recertify her continuing eligibility for the program simply because she did not receive the recertification forms. She knew, however, from her prior years as a participant in the Section 8 program that she had to recertify annually and should have inquired about the allegedly missing forms but did not tell the Housing Authority she had not received them until nearly two years after her recertification was due. Petitioner then delayed bringing this proceeding until May 2011: over two years after she requested restoration in December 2008, which the Housing Authority denied; nearly one year after 690 Gates commenced a nonpayment proceeding against her in August 2010 seeking the full contract rent amount; and over seven months after she submitted a second request for restoration in September 2010, which the Housing Authority denied that same month. Because there is no authority for the conditions-precedent argument in the statute of limitations context, Petitioner analogizes the T -3 Notice to a notice of entry. Petitioner's analogy is flawed and only undercuts her position. Judgment must actually be entered before a party can serve it with notice of entry or else the notice of entry would be invalid on its face. In contrast, the T -3 Notice itself is the determination and does not contain copies of the prior notices with proof of mailing. Petitioner identifies settlement of an order or judgment as a condition 4 precedent without which there can be no valid notice of entry. As Petitioner acknowledges, however, the Civil Practice Law and Rules ("CPLR") clearly state the consequence for a litigant failing to timely submit a proposed order or judgment "shall be ... abandonment of the motion or action, unless for good cause shown." Williams contains no comparable language the statute of limitations does not start running unless the Housing Authority first establishes it mailed the warning letter and T-I Notice as well as the T-3 Notice to the tenant. Petitioner and 690 Gates miss the mark when they claim it should be fairly simple for the Housing Authority to prove it sent the three termination notices it agreed to provide in Williams. The point is the four-month statute of limitations spares the Housing Authority from having to do so. When tenants fail timely to complain about their termination from the Section 8 program, the Housing Authority should have repose from the expense and time expended storing and retrieving records and proving mailing of notices so it can focus on its core mission of providing affordable housing. As this case illustrates, litigating notice issues is not simple but a time-consuming drain on scarce resources. Here, Petitioner reflexively insists she did not receive anything from the Housing Authority even though she received recertification papers at the same address in prior years, she herself produced proof the Housing Authority sent her the T-I Notice in the form of a mail log stamped received by the United States Post Office ("USPS"), and the 5 Housing Authority produced a mail log for the T -3 Notice stamped received by the USPS. The Second Department correctly credited the Housing Authority's proof it sent the T -3 Notice to Petitioner, which, under Williams and the CPLR, gives rise to a presumption of receipt Petitioner's bald claim of nonreceipt does not rebut. Before this Court, Petitioner does not dispute the Housing Authority's proof was adequate other than to allege in her statement of facts that the Housing Authority employees who signed affidavits attesting to service of the T-3 Notice did not have personal knowledge of all aspects of the preparation and mailing. As this Court has held, personal knowledge is not required where, as here, there is proof of the regular business practice for mailing a document in effect at the relevant time. Although it was not necessary, the Housing Authority secretary who submitted an affidavit did have personal knowledge of the preparation and mailing of the T-3 Notice in this case. This Court should make short shrift of 690 Gates's contention the Housing Authority did not prove it served the T-3 Notice. Petitioner, whose participation in the Section 8 program was terminated, does not join in 690 Gates's arguments. 690 Gates does not represent Petitioner. Indeed, their interests conflict as 690 Gates sought to evict Petitioner and she obtained an order staying 690 Gates's efforts. 690 Gates's litany of alleged deficiencies reflects more poorly on its 6 credibility than the Housing Authority's service of the T-3 Notice. For example, blindly ignoring the USPS stamp acknowledging receipt of the T-3 Notice sent by certified mail, 690 Gates still tells this Court, "[i]t is inexcusable for [the Housing Authority] to not have proof to account for the certified mailing." As the Housing Authority demonstrated in its initial brief, the four-month statute of limitations bars this proceeding regardless of whether Petitioner received the T-3 Notice because Petitioner did not commence it until more than two years after she acknowledged in a letter to the Housing Authority that she knew the Housing Authority had terminated her subsidy. The Second Department itself has dismissed claims as untimely based on the petitioner's actual knowledge, recently in the public housing context governed by Housing Authority termination procedures adopted under another consent decree. Petitioner nevertheless insists her actual knowledge is irrelevant because none of the knew-or-should-have- known cases cited by the Housing Authority involves the termination of a Section 8 subsidy pursuant to Williams or a "parallel situation." Petitioner overlooks the identical case ofShamblee v. Rhea, 110 A.D.3d 442 (lst Dep't 2013), in which the First Department held the statute of limitations began to run when the Section 8 participant knew or should have known the Housing Authority had terminated her subsidy. The Housing Authority also relied on cases dismissed as untimely based on the petitioner's actual knowledge even though the respondent did not comply 7 with statutory notice requirements, which are at least as compulsory as the notice requirements in Williams. As the Housing Authority showed in its initial brief, the lower courts erred in not providing it an opportunity to answer the petition. Petitioner and 690 Gates incorrectly argue the Housing Authority was not entitled to answer because the Housing Authority's "arguments on the petition and on the motion are one and the same." When the Housing Authority served its cross-motion, the only appellate precedent on the subject, which the lower court should have followed, held the statute of limitations ran from the T-3 Notice. To ensure that running the statute of limitations from the T-3 Notice remained squarely before the Court in this case, the Housing Authority proved it mailed the T-3 Notice to Petitioner, reserved its right to answer if the cross-motion was denied, and informed the lower courts it was not addressing the merits on its cross-motion to dismiss by proving it had served the other two notices. Petitioner and 690 Gates complain allowing the Housing Authority to answer now will take too long. Neither party should be heard to complain about delay. Petitioner did not bring this proceeding until nearly four years after she received the T -3 Notice and over two years after she admitted she knew the Housing Authority had terminated her subsidy. 690 Gates did not bring eviction proceedings against Petitioner, which may have incentivized her to comply with 8 her recertification obligations, until nearly three years after the Housing Authority stopped paying subsidies on Petitioner's behalf. Finally, the Housing Authority showed in its initial brief that the lower court erred in requiring it to pay retroactive subsidies for the period when Petitioner had not certified her continuing eligibility for the program, the housing assistance payments ("HAP") contract between the Housing Authority and 690 Gates had expired by operation of law, and the apartment had not passed annual inspections required under federal regulations. 690 Gates suggests the Housing Authority should have inspected Petitioner's apartment as soon as the lower court denied its cross-motion to dismiss in November 2011. The Housing Authority was entitled to pursue this appeal subject to the automatic stay under CPLR section 5519(a)(1) before answering. It had no duty to inspect Petitioner's apartment and rationally devoted its finite resources to inspecting the apartments of families who had not been terminated from the program for failing to meet their obligations. For each of these reasons, as discussed more fully below and in the Housing Authority's initial brief before this Court, this Court should reverse the order of the Second Department ("Order") and dismiss this proceeding in its entirety. 9 ARGUMENT POINT I THIS PROCEEDING IS TIME-BARRED BASED ON PETITIONER'S RECEIPT OF THE T-3 NOTICE A. Williams Does Not Require the Housing Authority to Prove It Mailed the Warning Letter and the T-l Notice to Avail Itself of the Statute-of-Limitations Defense Petitioner argues the Second Department "correctly held that [the Housing Authority] has the burden of satisfying the mandatory conditions precedent of [Williams] by serving properly each of the required notices before its determination to terminate a participant's subsidy can be considered final and binding as to trigger the running of the statute of limitations." Brief of Petitioner- Respondent ("Pet. Br.") at 1 O. This "conditions-precedent" analysis fails for the reasons discussed next. 1. Petitioner Ignores and Distorts the Plain Language of Williams As the Housing Authority established in its initial brief, courts must enforce Williams as a contract and the plain language of Williams does not require the Housing Authority to prove it mailed the warning letter and the T -1 Notice to trigger the statute of limitations for a tenant to challenge her termination from the Section 8 program. See Brief of Respondent-Appellant ("App. Br.") at 22-29. The analysis of Williams adopted by the First Department, the dissent in Banos, 10 and the Housing Authority, which runs the four-month statute of limitations from receipt of the T-3 Notice, is the only interpretation of Williams that complies with the basic principles of contract interpretation inasmuch as it gives meaning and purpose to each of the provisions of Williams. See App. Br. at 22-28; Bombay Realty Corp. v. Magna Carta, Inc., 100 N.Y.2d 124, 127 (2003); Ronnen v. Ajax Elec. Motor Corp., 88 N.Y.2d 582, 590 (1996) ("a contract which confers certain rights or benefits in one clause will not be construed in other provisions completely to undermine those rights or benefits"). Petitioner focuses on the single word "shall" in the Williams provisions on sending the warning letter, the T -1 Notice, and the T -3 Notice and in the preface on effecting terminations, and argues the use of that word in those paragraphs means the T-3 Notice is not final and binding for statute-of-limitations purposes. See Pet. Br. at 12-13. This analysis fails on the law and the facts. First, Petitioner gives undue force to a single word, "shall," while completely ignoring an entire paragraph, 22(f), the only provision that addresses the statute of limitations. See Westmoreland Coal Co., 100 N.Y.2d 352, 358 (2003) ("[t]he meaning of a writing may be distorted where undue force is given to single words or phrases") (internal quotations and citations omitted); Two Guys from Harrison - N.Y. v. S.F.R. Realty Assocs., 63 N.Y.2d 396,402 (1984) ("In construing a contract, one ofa court's goals is to avoid an interpretation that would leave contractual clauses 11 meaningless"); Riverside S. Planning Corp. v. CRPlExtell Riverside, L.P., 60 A.D.3d 61,62 & 66 (1st Dep't 2008) (holding a party cannot excise a term of a contract to make a new contract to "obtain through litigation and rhetoric what it plainly could not obtain from its adversaries through contract negotiations"). Second, if, as Petitioner argues, the word "shall" is "ordinarily the language of command" (Pet. Br. at 13 (internal quotations omitted)), then surely the "shall" contained in paragraph 22( t) must also be accorded the same meaning. Paragraph 22(f) states: "for the purposes of section 217 and Article 78 of the CPLR, the determination to terminate a subsidy shall, in all cases, become final and binding upon receipt of [the T-3 Notice]." Record ("R") 171 at ~ 22(f) (emphasis added).l 690 Gates acknowledges paragraph 22( f) defines when a determination is final and binding (see Brief for Respondent-Respondent 690 Gates, L.P. ("Resp. Br.") at 26) but contends the Housing Authority ignores the phrase "pursuant to paragraph '3(e),'" which references another paragraph, that, in turn, references another paragraph, and so on, until somehow sending the warning letter and the T- 1 Notice emerge as conditions precedent to the running of the statute of limitations. This connect-the-dots approach, more akin to a scavenger hunt than the memorialization of an actual agreement, is untenable for several reasons. First, the Williams also provides the T -3 Notice "shall have the same force and effect as a determination after a hearing to terminate a subsidy." R 163 at ~ 3( e ) (emphasis added). 12 parties to Williams were represented by counsel;2 if they had intended to make the running of the statute of limitations contingent on the mailing of all three notices, they would have memorialized that agreement in Williams. Indeed, in Consedine v. Portville Ctr. Sch. Dist., 12 N.Y.3d 286 (2009), on which the Second Department and 690 Gates rely (see R 14; Resp. Br. at 28-29), this Court rejected the argument a school district had contracted to waive its right to dismiss a probationary employee without cause and held "the operative contractual language is simply too equivocal to establish that defendant school district consciously and expressly agreed to waive its statutory rights." Consedine, 12 N.Y.3d at 294. Similarly, here, this Court should reject the argument the statute of limitations does not begin to run until the tenant receives all termination notices, when the parties to Williams unequivocally identified receipt of a single document, the T -3 Notice, as the trigger for the running of the statute of limitations. See R 171 at ~ 22(f). Second, contrary to the contention of 690 Gates, the Housing Authority gives meaning to the reference to paragraph 3(e) in the Williams statute-of- limitations provision. Cf. Resp. Br. at 26-28. The language "pursuant to paragraph '3( e)'" clearly was intended for the purpose of identifying the T-3 Notice and distinguishing it from other notices described in the document, 2 Indeed, the Williams decision 690 Gates and Petitioner cite (see Pet. Br. at 2, 11; Resp. Br. at 8) shows the federal court awarded counsel for the tenants $383,457.37 in attorneys' fees, undercutting any claim this Court should construe any ambiguity in Williams against the Housing Authority. See Williams v. New York City Hous. Auth., 975 F. Supp. 317, 328 (S.D.N.Y. 1997). 13 including a separate notice after a different type of default referred to in paragraph 22(a). See R 170 at ~ 22(a). Third, the "conditions-precedent" analysis is untenable and would preclude the Housing Authority from ever relying on a statute-of-limitations defense because there is no limit to what procedural requirement may be construed as a "condition precedent." The Order outlines the notice provision in Williams and concludes all three notices are "condition [ s] precedent" to the running of the four- month statute of limitations. See R 13-14. However, as the Second Department notes, Williams also states the Housing Authority sends a warning letter after it has made a preliminary determination "that there exists a basis for a proposed termination." R 13. Therefore, following the logic of the "conditions precedent" analysis, the Housing Authority would be required to prove it properly terminated a Section 8 subsidy, i.e., defend against the merits of a petitioner's claim, in order to prove it is entitled to a statute-of limitations-defense. This is not a reasonable interpretation of Williams because, as the Housing Authority established in its initial brief, courts cannot consider the merits of time-barred claims. See App. Br. at 35-37 (citing cases). Petitioner fails to mention or explain why the multiple First Department decisions rejecting the analysis employed by the Second Department in this case and running the statute of limitations from the T-3 Notice should not apply. See 14 Parks v. New York City Hous. Auth., 100 A.D.3d 407, 408 (1stDep't 2012) (unanimously reversing the lower court's decision which denied the Housing Authority's cross-motion to dismiss as untimely because it failed to show it mailed the warning letter and holding "Pursuant to paragraph 22( f) of the first partial consent judgment in Williams ... the four-month statute of limitations of CPLR [section] 217 began to run on the date of receipt of' the T-3 Notice), rev'g Index No. 402363110 (Sup. Ct. N.Y. Co. Apr. 29,2011) (Jaffe, 1.); Lopez v. New York City Hous. Auth., 93 A.D. 3d 448,448 (1st Dep't 2012) (same), rev'g 30 Misc. 3d 1237(A); Fernandez v. New York City Hous. Auth., 284 A.D.2d 202,202 (1st Dep't 2001) ("Under paragraph 22(f) of the first partial consent judgment in Williams ... the four-month statute of limitations ofCPLR [section] 217 began to run on the date of receipt of' the T-3 Notice). 690 Gates also ignores the First Department's decision in Fernandez but claims Parks and Lopez are not persuasive because the petitioners in those cases appeared pro se. See Resp. Br. at 33-34. The precedential value of a decision is not diminished by the purported inexperience of the litigant and " [ a] litigant appearing pro se acquires no greater right than any other litigant and such appearance may not be used to deprive defendants of the same rights enjoyed by other defendants." Roundtree v. Singh, 143 A.D.2d 995, 996 (2d Dep't 1988) ("Although the plaintiff appeared pro se at the trial, she did so at her peril.") 15 (internal citations omitted); see Morgan v. Sylvester, 125 F. Supp. 380, 388 (S.D.N.Y. 1954) ("A litigant appearing pro se acquires no greater right than any other litigant and such appearance may not be used to deprive defendants of the same rights enjoyed by other defendants"), aff'd, 220 F.2d 758 (1955), cert. denied, 350 U.S. 867 (1955); Goldmark v. Keystone & Grading Corp., 226 A.D.2d 143 (1 st Dep't 1996) ("A pro se litigant acquires no greater rights than those of any other litigant and cannot use such status to deprive defendant of the same rights as other defendants") (internal quotations and citations omitted). In any event, the lower courts ably framed the issue for the First Department's review in Parks and Lopez. 690 Gates incorrectly claims the petitioners in Parks and Lopez did not "deny receipt of the warning letter or the T-l Notice or the T-3 Notice." Resp. Br. at 34. In both Parks and Lopez, the lower courts expressly reasoned the statute of limitations did not begin to run because the Housing Authority did not show it mailed the warning letter. See Parks, Index No. 402363/10, at *5, rev'd by Parks, 100 A.D.3d at 408; Lopez, 30 Misc. 3d 1237(A), at *13, rev'd by Lopez, 93 A.D. 3d at 448. 690 Gates also incorrectly relies on the decision of Justice Abdus-Salaam in Green v. Hernandez, 6 Misc. 3d 1041A (Sup. Ct. N.Y. Co. Feb. 1,2005) (Abdus- Salaam, J.), a case in which the Housing Authority did not raise a statute-of- limitations defense. See Resp. Br. at 31. The decision in Green cites Fair v. 16 Finkel, 284 A.D.2d 126 (1st Dep't 2001), a case in which the Housing Authority also did not raise, and the First Department did not address, a statute-of-limitations defense. 3 Justice Abdus-Salaam sat on the panel in Parks in which the First Department held the statute of limitations runs from the T-3 Notice. See Parks, 100 A.D.3d at 408. This Court should adopt the analysis of the First Department and the dissent in Banos, recognizing that, "[a]n agency is not required to demonstrate that everything that led up to a detennination was in strict accordance with the required procedure in order to establish that the determination was final and binding and that the statute of limitations started running." Banos, 111 A.D.3d at 713 (Miller, J. dissenting). 2. Enforcing the Statute of Limitations Is Consistent With the General Purpose of Williams Although courts need not analyze the general purpose of an agreement where, as here, its language is clear, running the statute of limitations from the T-3 Notice is consistent with the general purpose of Williams as well as its plain language. See Consedine, 12 N.Y.3d at 293 ('''[W]hen parties set down their [contract] in a clear, complete document, their writing should ... be enforced according to its tenns. "'); App. Br. at 26. 3 Cole v. New York City Hous. Auth., 2013 N.Y. Misc. LEXIS 6075, 2013 NY Slip Op 33284(U), at *3-4 (Sup. Ct. N.Y. Co. Dec. 20, 2013) (Moulton, J.), on which 690 Gates also relies, is on appeal to the First Department. 17 Running the statute of limitations from the T-3 Notice does not nullity the due process protections Williams provides. Cf. R 14 (Second Department stating in Order: "Allowing [the Housing Authority] to avoid this condition precedent prior to running the statute of limitations provision set forth in paragraph 22( f) would render [Williams] a nullity."); Pet. Br. at 11, 13-14; Resp. Br. at 30-33. If the Housing Authority fails to send the warning letter or the T -1 Notice to a Section 8 participant before terminating the subsidy, that participant can challenge the Housing Authority's determination by timely commencing an Article 78 proceeding within four months of his or her receipt of the T-3 Notice. See App. Br. at 28-29; Zumpano v. Quinn, 6 N.Y.3d 666,671 (2006); ISCA Enters. v. City of New York, 77 N.Y.2d 688 (1991); Solnick v. Whalen, 49 N.Y.2d 224,227 (1980); Saunders v. Rhea, 92 A.D.3d 602,603 (1st Dep't 2012); Cloverleaf Realty of N.Y. , Inc. v. Town ofWawayanda, 43 A.D.3d 419,421 (2d Dep't 2007); M & D Contractors v. New York City Dep't of Health, 233 A.D.2d 230, 231 (1 st Dep't 1996). As the dissent in Banos explained, Petitioner's fear the Housing Authority is trying to avoid its obligation to send all three notices is unfounded inasmuch as the Housing Authority's position "does not serve to abrogate the notice requirements contained in [Williams], since the failure to follow the prescribed procedure will provide a substantive basis for overturning the determination as 18 violative of lawful procedure" so long as it is timely raised. See Banos, 111 A.D.3d at 714 (Miller, J. dissenting). Petitioner relies on two lower court cases from nearly a decade ago to support her claim that for the past 30 years the Housing Authority has failed to comply with the notice requirements in Williams. See Pet. Br. at 3-4, 13-14. Given that the Housing Authority administers nearly 100,000 Section 8 vouchers4 and mistakes will inevitably occur in a program of this size, the two cases Petitioner cites do not reveal systemic mailing deficiencies. Indeed, they only highlight there is no basis for Petitioner's bald claims she did not receive any of the documents the Housing Authority sent to her. In Quesada v. Hernandez, 5 Misc. 3d 1028A, at *4 (Sup. Ct. N.Y. Co. Oct. 27,2004) (Wetzel, J.), for example, the record showed that, unlike here, the Housing Authority mailed the T -3 Notice to the incorrect address. In Matos v. Hernandez, 10 Misc. 3d 1068(A), at *2 (Sup. Ct. N.Y. Co. Oct. 19,2005) (Acosta, J.), the copy of the T-3 Notice sent by certified mail was returned as unclaimed. There is no such record evidence in this case. In Matos, the Housing Authority lacked proof of mailing the T-3 Notice by regular 4 See http://www.nyc.govlhtml/nychalhtml/aboutlfactsheet.shtml (last visited Oct. 10, 2014). 19 mail;5 here, through affidavits of its employees, the Housing Authority has established it mailed the T-3 Notice by regular and certified mail (see R 227-34, 440-44). Here, as 690 Gates concedes but Petitioner ignores, Williams had a second purpose, to identify the final administrative determination. See Resp. Br. at 30. The Legislature deliberately imposed a short statute of limitations to protect government operations from stale litigation and permit rational planning by government agencies charged with allocating scarce resources funded by taxpayer dollars. See Best Payphones, Inc. v. Department of Info. Tech. & Te1comms., 5 N.Y.3d 30, 34 (2005) ("[a]n article 78 proceeding must be brought within four months after the determination to be reviewed becomes final and binding upon the petitioner. A strong public policy underlies the abbreviated statutory time frame: the operation of government agencies should not be unnecessarily clouded by potentiallitigation[.],,) (citations and quotations omitted). Petitioner's due process concerns cannot outweigh the social and public importance of an enforceable statute of limitations and the repose it provides. Like any claim, due process claims must be timely raised. 5 Matos was wrongly decided because a party cannot avoid service by failing to claim certified mail. See 232 Broadway Corp. v. Calvert Ins. Co., 149 A.D.2d 694,695 (2d Dep't 1989) ("Since the plaintiff was at fault in failing to claim the certified letter, it cannot raise its nonreceipt as a defense"); Gryphon Domestic VI, LLC v. APP Int'l Finance Co., 41 A.D.3d 25, 32 (1 st Dep't 2007) ("A defendant may not frustrate service by failing to claim certified mail"). 20 There is no toll of the statute of limitations for those unrepresented by counselor those whom others stereotypically discount as "unsophisticated laypersons" based on their income, level of education, health issues, or family composition.6 See App. Br. at 27-28; c£ R 14; Pet. Br. at 6, 18; Resp. Br. at 32. Similarly, the Second Department was not free to negate the statute-of-limitations provision in Williams out of sympathy for Section 8 participants. See Greenfield v. Philles Records, 98 N.Y.2d 562,570 (2002) ("if the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity.") (citations omitted); First Nat'l Stores, Inc. v. Yellowstone Shopping Ctr., Inc., 21 N.Y.2d 630,638 (1968) ("'Stability of contract obligations must not be undermined by judicial sympathy. To allow this judgment to stand would constitute an interference by this court between parties whose contract is clear. "') (citations omitted). Petitioner and 690 Gates nevertheless contend the Housing Authority is not entitled to the repose of the statute of limitations because the Housing Authority agreed to the notice requirements in Williams. See Pet. Br. at 15; Resp. Br. at 12- 13,32-33. This overlooks that the Housing Authority and counsel for the tenants 6 Although Petitioner's counsel describes Petitioner as a 61-year old grandmother (she is actually 60-years old and was 53-years old when the Housing Authority terminated her voucher), who lives with her young grandchild and has limited income and health conditions (see Pet. Br. at 6), the record shows Petitioner corresponded with the Housing Authority, completed documentation about her income as required by her landlord, and retained an attorney (see R 49, 53-56, 307-08). 21 also agreed in Williams that a tenant's receipt of one of those notices, the T-3 Notice, triggers the running of the statute of limitations within which tenants must raise any notice defect. See R 171 at ~ 22(f). Petitioner and 690 Gates further contend it is solely within the Housing Authority's control to comply with the notice requirements and prove compliance. The four-month statute of limitations, however, spares the Housing Authority from having to do so in stale cases. When tenants fail timely to complain about their termination from the Section 8 program, the Housing Authority should have repose from the expense and time expended storing and retrieving records and proving and litigating mailing so it can meet its statutory mandate to provide affordable housing. See generally 42 U.S.C. § 1437f; 24 C.F.R. § 982 et seq. 3. The T-3 Notice Is Not Analogous to a Notice of Entry Unable to locate any cases involving statutes of limitations or contract law that support her position, Petitioner attempts to bolster her "conditions-precedent" argument by analogizing the T-3 Notice to a notice of entry, which triggers a litigant's time to appeal. See Pet. Br. at 14-15. Petitioner's analogy fails. The rules governing the time limit for taking an appeal are entirely unrelated to the rules governing statutes of limitations. Compare CPLR §§ 5512-5515 with CPLR §§ 201-218. Indeed, the CPLR lists several bases for extensions of time to take an 22 appeal, including attorney disability, which do not apply to time-barred causes of actions. See CPLR §§ 5514 & 5520. Furthermore, the notice of entry notifies a litigant that a specific act, entry of judgment, has taken place and includes a copy of the entered judgment. See CPLR § 5513(a) ("An appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry"). Therefore, a notice of entry without an entered judgment would be invalid on its face because a judgment must actually be entered before a party can serve notice of entry. An entered judgment is not a "condition precedent" to a notice of entry; it is an "essential element" of the notice of entry itself. See Reynolds v. Dustman, 1 N.Y.3d 559,561 (2003) ("the paper respondents enclosed was neither stamped with the date and place of entry nor signed by the clerk, and therefore did not provide the essential elements of a notice of entry"). In contrast, the T-3 Notice is the final determination and need not contain copies of the two prior notices with proof of mailing in order to be what it purports to be. Petitioner's attempt to analogize a notice of entry to the running of the statute of limitations under Williams not only fails but affirmatively undercuts her position. Petitioner claims in situations "where settlement of a judgment or order is required, such settlement is an additional condition precedent to service of a 23 notice of entry," without which the motion or action is deemed abandoned. See Pet. Br. at 14-15. The critical difference is that 22 N.Y.C.R.R. section 202.48 explicitly specifies the time within which a litigant must settle an order or judgment and "failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown." 22 N.Y.C.R.R. § 202.48. There is no comparable language in Williams that the statute of limitations never starts to run absent the tenant's receipt of the warning letter and T -1 Notice. Instead, the parties to Williams specified one notice, the T-3 Notice, triggers the running of the statute of limitations. See R 171 at ~ 22(f). B. The Housing Authority Proved It Mailed the T -3 Notice The Housing Authority submitted the affidavits of two Housing Authority employees attesting to the Housing Authority's mailing of the T-3 Notice to Petitioner, complete with a mail log stamped-received by the USPS for the copy of the T-3 Notice sent by certified mail. See R 227-34. Although the lAS Court stated there "is insufficient proof' the Housing Authority sent the T -3 to Petitioner without specifying a deficiency (see R 34), the Second Department did not agree, concluding only that the Housing Authority had not proved it mailed the warning letter and T-l Notice (which the Housing Authority did not set out to prove because only the T -3 Notice was the final and binding determination from which 24 the statute of limitations began to run). See R 14 (Order stating Housing Authority "failed to show that it mailed two of the three required notices"). Petitioner and 690 Gates claim the affidavits submitted by the Housing Authority are insufficient because the affiants lacked personal knowledge of the matters described therein - an argument Petitioner raised below but the Second Department did not credit. See Pet. Br. at 8-9; Resp. Br. at 12, 14-15. As a matter of law, there is no personal knowledge requirement; proof attesting to compliance with the regular business practice in effect at the time suffices. See Preferred Mut. Ins. Co. v. Donnelly, 22 N.Y.3d 1169, 1170 (2014) (affirming Appellate Division order), affd, 111 A.D.3d 1242, 1244 (4th Dep't 2013) (holding "[a]s long as there is adequate [evidence from] one with personal knowledge of the regular course of business, it is not necessary to solicit testimony from the actual employee in charge of the mailing"); Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829-30 (1978) (when "the proof exhibits an office practice and procedure followed by the insurers in the regular course of business, which shows that the notices of cancellation have been duly addressed and mailed, a presumption arises that those notices have been received by the insureds"); Badio v. Liberty Mut. Fire Ins. Co., 12 A.D.3d 229, 229-30 (lst Dep't 2004) ("[b]y establishing its routine and reasonable office practice, defendant met its burden of proof that notice was mailed to plaintiff and presumed received. The burden then shifted to plaintiff to rebut the presumption 25 of receipt"); State-Wide Ins. Co. v. Simmons, 201 A.D.2d 655,656 (2d Dep't 1994) ("[i]t is well settled that when the record indicates an established and regularly followed office procedure designed to insure that notices of cancellation are properly addressed and mailed, a rebuttable presumption arises that such notices were received"). Although it was not required to do so, the Housing Authority submitted the affidavit of an individual who was not only familiar with the business practice in effect at the time but also personally prepared the T-3 Notice for mailing by regular and certified mail to Petitioner. See R 152 at ~ 9; R 227-31,440-43. In addition to describing a business practice, Housing Authority secretary Sharaya Pettway ("Pettway") stated she examined the T -3 Notice and recognized it as a document she processed for mailing (see R 228 at,-r 3), and she examined the mail log for the T -3 Notice sent by certified mail and recognized it as a document she prepared (see R 440-41 at,-r~ 3-4).7 Pettway then described the steps she took in the mailing of the T-3 Notice by regular and certified mail. See R 228-29 at ~~ 3- 7. 7 Even though Pettway swore in two affidavits that she prepared the mail log for the T-3 Notice, Petitioner continues to claim there is "no indication" Pettway prepared the mail log. See Pet. Br. at 8. Petitioner's fixation on the handwritten notation on the mail log for the T-3 Notice reading "Mr. James" is irrational in light of Pettway's sworn affidavit explaining she wrote the notation "Mr. James" and it merely indicated Mr. James was the Housing Assistant assigned to the tenants listed on the mail log. See R 440-41 at ~~ 3-5. Pettway was the secretary who prepared the mailings of the Williams' notices for Mr. James (see ill. 26 690 Gates nevertheless claims Pettway did not have personal knowledge of the T -3 Notice prepared for regular mail because the language in her affidavit shifted from active to passive, "conspicuously show[ing] that Pettway was not claiming to be the person who handled themailingbyregularmail. .. Resp.Br.at 11-12. The shift in tense is meaningless. First, as indicated above, Pettway did not need to have personal knowledge of the T -3 Notice. Second, Pettway's reply affidavit confirms she prepared the T-3 Notice for mailing. See R 440-41 at ~ 3. In addition to ignoring Pettway's personal knowledge, 690 Gates incorrectly argues her affidavit does not establish a business practice. See Resp. Br. at 12-14. In her affidavit, Pettway clearly states one of her responsibilities is to prepare the T-3 Notice for mailing, she is familiar with the usual business practice in mailing the T -3 Notices in effect at the time, and she followed that business practice with respect to the T-3 Notice addressed to Petitioner - i.e., she: prepared the T-3 Notice, inserted it in a window envelope for certified mail, prepared a mail log kept by the Housing Authority in the regular course of its business contemporaneously with the events recorded; at the same time, inserted a copy of the T-3 Notice into another window envelope for regular mail, and deposited both envelopes in an out box. See R 227-29. It would have been redundant for Pettway to describe both the practice for processing T-3 Notices in general and the handling of Petitioner's T-3 Notice because the steps followed in each are identical. Instead, 27 Pettway prefaces her account of each of the steps she followed with respect to Petitioner's T-3 Notice with the phrase, "[f]ollowing regular business practice." R 228-29. 690 Gates insists the Housing Authority did not establish a business practice for several reasons, none of which has any merit. For example, it argues the affidavits fail to state staff ensures the number of envelopes matches the number of names listed on the T-3 mail log. See Resp. Br. at 13-14. In Preferred Mut. Ins. Co., however, this Court affirmed an Appellate Division order granting a plaintiffs motion for summary judgment and holding the absence of "evidence [] of a practice to ensure that the number of envelopes delivered to the mail room corresponded to the number of envelopes delivered to the post office" is not "fatal." Preferred Mut. Ins. Co., 111 A.D.3d at 1247, affd, 22 N.Y.3d 1169. In any event, Pettway explained she created the mail log for the T-3 Notices by typing "the address of each tenant to match the address on the T-3 Notice" (R 441 at ~ 5); thus, Pettway ensured she had the same number of envelopes as the names on the mail log. 690 Gates further complains Pettway did not state she checked the window envelope to ensure it displayed Petitioner's address (see Resp. Br. at 13- 14). Because Pettway created the mail log by typing the addresses as they appeared through the window on the envelope, she must have seen Petitioner's address through the window. See id. 28 690 Gates also argues the Housing Authority's proof it mailed the T-3 Notice to Petitioner is deficient because it does not show how the Housing Authority determined the proper postage for each notice and the means used to imprint the postage on the envelope. See Resp. Br. at 15. 690 Gates has failed to cite any authority for requiring this level of detail in an affidavit of mailing. In his affidavit, Shawn Younger, Administrative Manager of the Housing Authority's Mail Center, states the Housing Authority's regular business practice is to imprint each envelope "with the appropriate postage according to the rates set by the USPS." R 234 at ~ 3. This is more than sufficient to establish the Housing Authority affixed the proper postage to the envelopes in mailing the T-3 Notice. Apparently acknowledging the Housing Authority did establish a regular business practice, 690 Gates then argues the Housing Authority violated that practice. Although the Housing Authority indisputably refuted this claim below, 690 Gates still insists the Housing Authority did not follow its regular business practice, as stated in the Younger Affidavit, of delivering mail to the USPS within one business day of when the mail is picked up from the Leased Housing Department. See Resp. Br. at 16. Only one business day elapsed between the date on the T-3 Notice, Thursday, August 16,2007, and the date 690 Gates itself acknowledges the USPS received the T-3 Notice, Monday, August 20,2007, which is Friday, August 17,2007. It is frivolous for 690 Gates to repeat this argument. 29 F or the first time in its brief to this Court, 690 Gates claims the Housing Authority did not establish the T-3 Notice was ever actually deposited with the USPS. See Resp. Br. at 10, 14-16. 690 Gates ignores the Housing Authority provided proof the USPS received the T-3 Notice inasmuch as the relevant mail log bears the USPS stamp. See R 232. It is ironic 690 Gates completely ignores the mail log for the T -3 Notice sent by certified mail but argues the Housing Authority'S proof of service is fatally defective because there is no comparable mail log for the T -3 Notice sent by regular mail. Cf. Resp. Br. at 17. Moreover, the USPS would not stamp a log for regular mail inasmuch as acknowledgement of receipt is not a service the USPS provides for regular mail. See https:llwww.usps.comlship/first-c1ass.htm (last visited Oct. 10,2014) (explaining first class mail can "be combined with extra services to confirm delivery" and obtain "proof of mailing" at an additional cost). And contrary to 690 Gates's contention, the Housing Authority, which is in the business of administering the Section 8 program for nearly 1 00,000 families rather than litigation, has no duty to create contemporaneous affidavits for each warning letter, T-1 Notice, and T-3 Notice it sends out by regular mail, and confirm actual delivery of the certified mailing through USPS Track and Confirm 30 on the possibility the matter may ultimately result in litigation.8 Cf. Resp. Br. at 17. Certainly Szaro, on which 690 Gates relies, does not require the Housing Authority to do so. Cf. Resp. Br. at 17. In Szaro, a tenant challenged the order of the New York State Division of Housing Community and Renewal ("DHCR") affirming an order of the Rent Administrator that deregulated the tenant's apartment based on his default in answering a lUxury decontrol petition. See Szaro, 13 A.DJd at 93. Szaro involved a provision in the Rent Stabilization Code inapplicable here, "requir[ing] a tenant contesting a lUxury decontrol to retain proof that an answer to the petition was served." rd. That same provision required DHCR to give the tenant appropriate notice of his obligation to retain proof of service on the front page of his answer fonn." Id. at94. Here, Williams does not even dictate the type of mail by which the T-3 Notice should be sent, much less require the Housing Authority to maintain mail logs or other proof of service. The tenant in Szaro also "did not submit objective proof of mailing of any kind" (id. ), 8 Accordingly, there is no requirement that affidavits of service of termination notices be part of the administrative record. Neither Szaro v. New York State Div. ofHous. & Cmty. Renewal, 13 A.D.3d 93 (1st Dep't 2004), nor Basile v. Albany ColI. of Ph arm., 279 A.D.2d 770 (3d Dep't 2001), on which Petitioner relies, discussed, much less required, proof of mailing as part of the administrative record under review. Cf. Resp. Br. at 17. The Court in Szaro held the tenant petitioner could not rely on tax returns that were not part of the administrative record. See Szaro, 13 A.D.3d at 94. In Basile, the Court refused to consider an affidavit outside the administrative record submitted by the respondent school in support of its claim petitioner students had cheated. See Basile 279 A.D.2d at 772. There is no showing the affidavit concerned the mailing of a final determination like the affidavits of the Housing Authority employees in this case. 31 whereas here the Housing Authority introduced the log stamped by the USPS in addition to its employees' affidavits. See R 227-34,440-44. Finally, 690 Gates faults the Housing Authority because so much time elapsed between the Housing Authority's termination of Petitioner's subsidy and Petitioner's commencement of this proceeding (after 690 Gates delayed in suing her) that the USPS can no longer track whether Petitioner claimed the T-3 Notice mailed by certified mai1.9 See Resp. Br. at 19. Petitioner alone bears responsibility if she did not claim her mail because "[ a] defendant may not frustrate service by failing to claim certified mail." Gryphon Domestic, 41 A.D.3d at 32; see 232 Broadway Corp., 149 A~D.2d at 695. Ultimately, 690 Gates's rhetoric only supports the Housing Authority's position. The Housing Authority is in need of the repose afforded by the statute of limitations precisely because, to quote 690 Gates, "[a ]ny tenant might file an Article 78 petition at any time." Resp. Br. at 19. C. Petitioner Did Not Rebut the Presumption She Received the T-3 Notice The Housing Authority's proof of compliance with its regular business practice to send the T-3 Notice to Petitioner gave rise to a presumption Petitioner received the T -3 Notice within five days of mailing, or by August 27, 2007, nearly 9 Return receipts are not automatically transmitted when mail is sent by certified mail. See https:llwww.usps.comlship/insurance-and-extra-services.htm (last visited Oct. 10,2014). Return receipts are an additional service provided by the USPS in exchange for another fee. Williams does not require the Housing Authority to request return receipts. 32 four years before she belatedly commenced this proceeding on May 18,2011. See R 186,227-34,440-44; Nassau Ins. Co., 46 N.Y.2d at 829-30; Badio, 12 A.D.3d at 229-30. Petitioner has offered nothing more than a bald claim of nonreceipt which, as a matter of law, cannot rebut the presumption of receipt. See Pet. Br. at 9; App. Br. at 24 n.4 (citing cases); Badio, 12 A.D.3d at 229-30 ("An insured's denial of receipt, standing alone, is insufficient to rebut the presumption") (citations omitted). Counsel for 690 Gates claims Petitioner's submission of income information to it lO creates a "history of [Petitioner] complying with requirements to submit income information when she does get notification"; and thus, rebuts the presumption Petitioner received the T-3 Notice. lI See Resp. Br. at 22-25. 690 Gates relies on Futterman v. New York State Div. ofHous. & Cmty. Renewal, 264 A.D.2d 593 (1st Dep't 1999), which is inapposite. In Futterman, the First Department concluded the petitioner overcame the presumption of receipt because her course of conduct in responding to prior notices and requests from her landlord and DHCR demonstrated she "recognized the importance of responding to the various notices and in fact did so diligently." Id. at 595. Here, Petitioner has not 10 690 Gates argues this Court should not consider information outside the administrative record (see Resp. Br. at 17) but then itself introduces updated information outside the record concerning Petitioner's submission of income information to it (see id. at 23). II Petitioner raised a similar argument for the first time in her brief before the Appellate Division but has abandoned it on appeal. 33 established she has a history of diligently responding to notices from the Housing Authority. Petitioner's alleged responsiveness to requests for information in another program in no way requires this Court to reach the conclusion she did not receive the T-3 Notice. Indeed, if Petitioner had been diligent in responding to mailings she received from the Housing Authority, Petitioner would have recertified in 2007 and her subsidy would not have been terminated. Petitioner's conduct in seeking restoration to the Section 8 program only further demonstrates Petitioner's indifference regarding her Section 8 subsidy. Petitioner did not submit her first request for restoration to the Section 8 program until December 2008 - more than one year after the Housing Authority terminated her subsidy and nearly one year after the statute of limitations expired in December 2007. See R 53. Nearly two years later in September 2010, Petitioner submitted a second request for restoration (see R 55), and she failed to commence this proceeding until more than seven months after the Housing Authority's denial of that request (see R 56). Thus, Petitioner did not meet the four-month statute of limitations no matter which benchmark is used. Contrary to 690 Gates's claim, Petitioner's low-income status cannot rebut the presumption of receipt. 690 Gates's argues it is "incomprehensible that if [Petitioner] had received the T-3 Notice she would knowingly fail to respond" because Petitioner cannot afford to rent an apartment without her Section 8 34 subsidy. See Resp. Br. at 24-25. It is not incomprehensible. A tenant may deliberately fail to recertify for anyone of a number of reasons, including a change in household income that would increase the share of the rent for which the tenant is liable, the presence of a new household member with a criminal record, or the fact the tenant no longer resides in the apartment. People also make illogical choices or fail to follow simple requirements all the time. 12 The statute of limitations applies no matter the reason. 690 Gates is essentially requesting this Court to toll the statute of limitations based on Petitioner's low-income status. See Resp. Br. at 24-15. This is not permitted. See Roldan v. Allstate Ins. Co., 149 A.D.2d 20,33 (2d Dep't 1989) ("The courts are not free to extend the Statute of Limitations, and certainly may not invent tolling provisions simply because to do so might seem necessary to avoid results thought to be unfortunate in particular cases") (citations omitted). POINT II THIS PROCEEDING IS TIME-BARRED BASED ON WHEN PETITIONER KNEW OF THE HOUSING AUTHORITY'S DETERMINATION As discussed in the Housing Authority's initial brief, "[i]n cases where a party establishes lack of notice, this Court has held the statute of limitations runs from when the party knew or should have known of the determination." O'Neill v. 12 It is more likely people will make illogical choices when there are no consequences for doing so. 35 Pfau, _ N.Y.2d _,2014 N.Y. LEXIS 1364, at *2 (2014); see App. Br. at 29-35. Recently, the Second Department endorsed the knew-or-should-have-known doctrine, this time with respect to the Housing Authority's termination of a public housing tenancy in accordance with termination procedures the Housing Authority adopted pursuant to another consent decree. See Olivares v. Rhea, 2014 N~Y. App. Div. LEX1S 5384, at *2 (2d Dep't Jul. 23, 2014) ("Moreover, even if the respondents had failed to establish that the petitioner received the determination in April 2009, the record demonstrates that the petitioner had actual notice of the determination no later than April 5, 2011 "). Thus, regardless of whether Petitioner can rebut the Housing Authority's proof of mailing the T-3 Notice, which she has not done, this proceeding is time- barred because she admits she knew the Housing Authority terminated her subsidy by December 2008 but did not commence this proceeding until May 2011. See Pet. Br. at 6. Specifically, in December 2008, Petitioner submitted a letter to the Housing Authority requesting restoration and stating "I was issued a letter saying my Section 8 was terminated[.]" R 53. Therefore, at the latest, the statute of limitations expired four months later in April 2009, and the Second Department erred in failing to dismiss this proceeding commenced on May 18, 2011 as time- barred. (Indeed, Petitioner did not even bring this proceeding within four months 36 of the Housing Authority's denial of her second restoration request in September 2010.) In response, 690 Gates, but not Petitioner, asserts this Court cannot consider the knew-or-should-have-known argument because the Housing Authority did not raise it in the lAS Court. 690 Gates is incorrect on the law and the facts. As a matter of law, "'[w]here, as here a party does not allege new facts but, rather, raises a legal argument which appeared upon the face of the record and which could not have been avoided if brought to the opposing party's attention at the proper juncture, the matter is reviewable.",13 Bonilla v. Rotter, 36 A.D.3d 534, 535 (1st Dep't 2007). Here, the record is undisputed Petitioner admitted in her December 2008 letter she knew the Housing Authority had terminated her subsidy and 690 Gates brought a nonpayment proceeding against her in August 2010. See R46 at~ 19; R53. In any event, the Housing Authority raised the knew-or-should-have-known argument in the lAS Court. See R 324-25 at ~ 11. 690 Gates is incorrect when it describes that argument as "by virtue of the landlord bringing a nonpayment proceeding in 2010 [petitioner] knew that there had been a termination so her time to bring an Article 78 proceeding began to run once she knew of it." Resp. Br. at 13 The same is true for the Housing Authority's argument laches based on Petitioner's undue delay in bringing this proceeding warrants dismissal. See App. Br. at 33 n.5. The knew- or-should-have-known issue is also before this Court in Banos. See Banos, Court of Appeals Docket No. APL-2014-00078, Record on Appeal 74-75 at ~ 16 n.6. 37 36. While this proceeding is time-barred from this benchmark as well, the statute of limitations started to run even earlier under the knowledge trigger, when, nearly two years before 690 Gates sued Petitioner in housing court, she admitted in her December 2008 letter that "[ she] was issued a letter saying [her] Section 8 was terminated[.]" R 53; see Pet. Br. at 7. Although the First Department recently applied the knew-or-should-have- known doctrine to the termination of Section 8 benefits in Shamblee, which the Housing Authority cited in its initial brief to this Court, Petitioner contends none of the cases cited by the Housing Authority involves the termination of a Section 8 subsidy pursuant to Williams or a "parallel situation." Compare App. Br. at 30-31 with Pet. Br. at 16. In addition, Petitioner claims the Housing Authority misstated the holding of Shamblee, because "[t]he issue in [Shamblee] was whether the statute of limitations was tolled indefinitely by the ambiguity of a notice received after the T-3" and the First Department "held that [the petitioner] should have known that her subsidy had been terminated (thus resolving any ambiguity)." Pet. Br. at 16-17. Petitioner's reading ofShamblee is belied by the precise language of the First Department's decision. 14 Although the petitioner in Shamblee claimed the Housing Authority had created an ambiguity, the First Department's decision 14 As Petitioner notes, the petitioner in Shamblee admitted receipt of the T-3 Notice (see Pet. Br. at 17), but she did not admit receipt of the warning notice or T-1 Notice and the First Department did not require the Housing Authority to prove that she received them (see Shamblee, 110 A.D.3d at 443). 38 explicitly states its holding is not contingent on whether the Housing Authority created an ambiguity: Irrespective of the purported ambiguity in [the Housing Authority's] notice of its final determination to terminate petitioner's housing subsidy, or its alleged error in continuing to issue petitioner's subsidy for ten months after the issuance of the notice, which petitioner alleges to have confused her and led her to believe that her subsidy had not been terminated, the evidence indicates that [the Housing Authority] eventually issued its last subsidy payment on April 1, 2010. Even if petitioner did not know of the nonpayment at that time, she had to have known by no later than the commencement of a holdover proceeding by her landlord, respondent Fulton Park 4 Associates, which was based solely on nonpayment of the subsidy. Shamblee, 110 A.D.3d at 443 (emphasis added). The First Department did not resolve whether or not the Housing Authority's final determination was ambiguous; it held the purported ambiguity was irrelevant because Petitioner became aware of the determination at a later date that still rendered the proceeding untimely. Although Petitioner has never claimed the Housing Authority created ambiguity regarding its determination, she now seeks to rely on precedent stating courts should resolve ambiguity against anagency. See Pet. Br. at 18-19. The cases Petitioner cites are inapplicable. In Carter v. State of New York, Exec. Dep't, Div. of Parole, 95 N.Y.2d 267 (2000), this Court held a handwritten note on a decision did not create an ambiguity as to whether the decision was final and binding. See id. at 271. In Biondo v. New York State Bd. of Parole, 60 N.Y.2d 39 832 (1983), the petitioner never received any notice, "ambiguous or otherwise." Id. at 834. In both Mundy v. Nassau County Civil Servo Comm'n, 44 N.Y.2d 352 (1978), and Castaways Motel V. Schuyler, 24 N.Y.2d 120 (1969), this Court found ambiguity because the agencies' own acts appeared inconsistent and contradictory. See Mundy, 44 N.Y.2d at 358 (respondent created "ambiguity and [an] impression of non-finality" of its certification of an eligible list based on the results of civil service exams where respondent withdrew the certification a few days later and notified those on the list it would be held in abeyance pending resolution of an unrelated lawsuit); Castaways Motel, 24 N.Y.2d at 126 (letter was not final and binding determination where it indicated land grant patent would be granted but subsequent letter for the first time explicitly stated such grant was contingent on petitioner signing release). Petitioner admits she learned the Housing Authority terminated her Section 8 subsidy through a notice she received and through her landlord (see Pet. Br. at 6; R 53), and she admits she received the Housing Authority's denial of her requests for restoration (see Pet. Br. at 7), which also informed her "a review of our records indicates that you were terminated from the [Housing Authority's] Section 8 program effective October 31, 2007" (R 54, 56). Unlike the "implied" determinations referenced in Castaways Motel, which Petitioner claims this Court 40 deplores (see Pet. Br. at 20), the Housing Authority definitively informed Petitioner it had terminated her Section 8 subsidy (see R 54,56). Furthermore, the Housing Authority cited decisions dismissing cases as untimely based on the petitioner's actual knowledge even though the agency did not comply with statutory notice requirements. See App. Br. at 29-34. 15 Neither Petitioner nor 690 Gates explains why notice requirements in a consent judgment should be given greater weight than the statutory notice requirements in the cases cited by the Housing Authority. Petitioner claims incorrectly the cases on which the Housing Authority relies are "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." Pet. Br. at 17. To the contrary, 90-92 Wadsworth Ave. Tenants Ass'n v. City of New York Dep't ofHous. Preserv. & Dev., 227 A.D.2d 331 (1st Dep't 1996), which the Housing Authority cited (see 15 Petitioner'-s attempt to distinguish one ofthose cases, ISCA Enters., is a non sequitur. This Court affirmed the dismissal as untimely ofISCA's proceeding to void tax deeds on properties because ISCA did not bring the proceeding until nearly four years after it had actual knowledge of the tax foreclosure and recording of the tax deeds. This Court relied on ISCA's actual knowledge even though it had not received the notice required by the New York City Administrative Code of a tax foreclosure proceeding. See ISCA Enters., 77 N.Y.2d at 696-97; App. Br. at 29-30. Conversely, this Court held the claims of the Campbell plaintiffs in ISCA were timely because there was no "evidence that plaintiffs had actual notice." ISCA, 77 N.Y.2d at 697-98. In response, Petitioner cites a decision of the United States Court of Appeals for the Second Circuit in another case for the proposition that pursuing a cause of action does not toll the statute of limitations for commencing a related but independent cause of action. See Pet. Br. at 19. The relevance of Petitioner's response to this case is not apparent because Petitioner did not pursue any claim to challenge her termination from the Section 8 program until after the statute of limitations had expired. 41 App. Br. at 30), explicitly acknowledges this principle and reconciles it with the knew-or-should-have-known principle. In Wadsworth, the First Department explained: In circumstances where a party would expect to receive notification of a determination, but has not, the Statute of Limitations begins to run when the party knows, or should have known, that it was aggrieved by the determination. Wadsworth, 227 A.D.2d at 331-32 (citations omitted). The cases on which Petitioner and 690 Gates rely are inapposite for several reasons. First, they do not even raise, much less decide, a knew-or-should- have- known argument. See Pet. Br. at 17 (citing Munice v. Board of Exam'rs ofBd. of Educ., 31 N.Y.2d 683,683 (1972); Kaufman v. Anker, 66 A.D.2d 851,852 (2d Dep't 1978)). 690 Gates attempts to portray Village of Westbury v. Department of Transp., 75 N.Y.2d 62 (1989), as a knew-or-should-have-known case by stating the agency had "published" its determination. See Resp. Br. at 36. In fact, there was no publication and no showing the petitioner knew about the. determination because the respondent had filed it with the wrong entity. See Village of Westbury, 75 N.Y.2d at 73. Second, like Petitioner's failed analogy to notice of entry, the cases 690 Gates cites involve procedural contexts, like service of process to acquire personal jurisdiction, or public policy considerations, like the importance of the attomey- client relationship, not implicated here. See Raschel v. Rish, 69 N.Y.2d 694, 696 42 (1986) (analyzing service of process and personal jurisdiction in affirming dismissal of complaint against doctor because service was not timely inasmuch as service on the hospital administrator did not effectuate service on the doctor); Bianca v. Frank, 43 N.Y.2d 168, 173 (1977) (proceeding not time barred where petitioner's attorney was not served with determination in violation of "basic procedural dictates and the fundamental policy considerations which require that once counsel has appeared in a matter a Statute of Limitations or time requirements cannot begin to run unless that counsel is served with the determination ... to be reviewed") (cited in Resp. Br. at 37).16 690 Gates argues Petitioner's knowledge her subsidy had been terminated did not trigger the statute of limitations because "that would not give her all the information that [Williams 1 required" concerning the reason for the termination and the right to request a hearing. See Resp. Br. at 38-39. 690 Gates is incorrect. As appellate courts, including this Court, have held in several cases the Housing Authority cited but Petitioner and 690 Gates ignore, the statute of limitations begins to run when a party knows it is aggrieved, even if it does not know the underlying reason or have all the details formal notice would provide. See Pfau, 2014 N.Y. LEXIS 1364, at *2 (affirming dismissal of claim as time-barred when 16 On page 37 of 690 Gates's brief, counsel mistakenly cited to a case other than Bianca v. Frank. A clerk of this Court directed 690 Gates to replace page 37 with its intended reference to Bianca v. Frank. 43 not brought within four months of receipt of check which did not include continuous service credit petitioners sought); Munice, 31 N.Y.2d at 684 (rejecting petitioner's assertion board's determination did not become final for purposes of review until petitioner received board's statement of reasons for dismissal of appeal); Cloverleaf Realty, 43 A.D.3d at 421 (proceeding time-barred based on plaintiffs', actual notice of the tax assessment even though plaintiffs claimed the town "did not provide them with direct notice of the public hearing concerning the subject special assessment" prior to imposing the special assessment); Riverkeeper, Inc. v. Crotty, 28 A.D.3d 957,961 (3d Dep't 2006) (holding after agency sent a request for temporary extension of five-year review period in 1992, the agency was not required to send an additional notice informing petitioners it extended the review period past the permissible five-year period because petitioners were "aware by 1997 that the extension had lasted more than the claimed permissible period" but did not file within four months); M & D Contractors, 233 A.D.2d at 231 ("Petitioner's subsequent correspondence with the Department of Health, in an attempt to obtain copies of violation notices and to otherwise ascertain the factual particulars surrounding the assessments, did not extell(~ or toll its time to initiate an article 78 proceeding"). Moreover, Petitioner indisputably knew the Housing Authority had terminated her Section 8 subsidy because she had failed to recertify no later than 44 December 2008 when she wrote her first request for restoration to the Section 8 program and stated "I never receive[d] a letter to rec[er]t my Section 8." R 53. The Housing Authority confirmed in its September 2010 letter denying Petitioner's second request for restoration that her "Section 8 subsidy was terminated for failure to comply with the Annual Recertification process." R 56. 690 Gates also argues that running the statute of limitations from knowledge regardless of receipt of the T -3 Notice would give the Housing Authority "absolution to not give notices at all" because "[i]f a landlord were to tell a tenant that it did not receive a subsidy, after four months, [the Housing Authority] would not be required to serve any notice, even the T-3 Notice." Resp. Br. at 39. 690 Gates is incorrect. If, unlike Petitioner here, a tenant rebuts the presumption she received the T-3 Notice, the statute of limitations would not begin to run until the tenant first learned of the termination, whether from her landlord or another source. The Housing Authority has incentive to comply with Williams for several reasons. First, under the Section 8 Management Assessment Program ("SEMAP"), the United States Department of Housing and Urban Development ("HDD") measures the performance of public housing authorities in key areas, including calculating a household's annual income, and assigns performance ratings. See 24 C.F.R. § 985.1; 24 C.F.R. § 985.3(c). If the Housing Authority fails to meet the SEMAP standard, the Housing Authority receives no SEMAP points for that particular 45 performance indicator (see 24 C.P.R. § 985.3(c)) and federal regulations require the Housing Authority to take corrective action (see 24 C.F .R. § 985.106). If a public housing authority receives a poor SEMAP score, it is considered a "troubled agency" and HUD can limit the public housing authority's ability to use its administrative fee reserve. See 24 C.F.R. § 985.107(f).17 Second, the date the tenant receives the T-3 Notice is an earlier date to the start the statute oflimitations running than when, if ever, the tenant learns of the subsidy termination from another source. Third, sending the T-3 Notice is within the Housing Authority's control while whether a tenant learns of the termination from another source is not. Thus, contrary to 690 Gates's contention, the Housing Authority is not trying to "avoid its legal obligations" to give notice. See Resp. Br. at 39. The Housing Authority is seeking to protect itself from the pitfalls of attempting to prove compliance with Williams after the statute of limitations expires. Petitioner and 690 Gates do not dispute, as a matter of law, the Housing Authority could not in Williams contract away the protection of the statute of limitations for claims like Petitioner's that would not accrue until decades later. See App. Br. at 34-35. 17 Contrary, to 690 Gates's contention, a party does not waive reliance on legal authority like the Code of Federal Regulations or Public and Indian Housing ("PIH") notices issued by HUD .. See Bonilla, 36 A.D.3d at 535; cf. Resp. Br. at 39-40. 46 POINT III THE SECOND DEPARTMENT ERRED IN NOT AFFORDING THE HOUSING AUTHORITY AN OPPORTUNITY TO ANSWER In its initial brief, the Housing Authority showed that, under CPLR section 7804(f) and appellate precedent, the lower courts should have afforded it an opportunity to answer the petition after denying the cross-motion to dismiss. See App. Br. at 8-9,37-39. Petitioner concedes "in most instances the respondent in an Article 78 proceeding should be provided the opportunity to answer after a motion to dismiss is denied." Pet. Br. at 20. Nevertheless, Petitioner and 690 Gates argue the Second Department properly denied the Housing Authority an opportunity to answer because the Housing Authority's arguments on its cross-motion and the petition are "one and the same" 18 and pennitting the Housing Authority to answer would unduly protract this litigation. See Pet. Br. at 20-21; Resp. Br. at 41-43. The issues on the cross-motion to dismiss and the petition are not identical. In moving to dismiss, the Housing Authority justifiably relied on controlling precedent of the First Department in Fernandez, the only Department to have addressed the issue, which the statute of limitations runs from receipt of the T-3 Notice. See R 323-24 at,-r 10; Fernandez, 284 A.D.2d at 202; Mountain View 18 This argument only confirms that the lower courts impermissibly addressed the merits of a time-barred claim in denying the Housing Authority's cross-motion to dismiss. See App. Br. at 35-37. 47 Coach Lines, Inc. v. Storms, 102 A.D.2d 663,664 (2d Dep't 1984) ("the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule"). Here, the lower courts impermissibly resolved this proceeding by reaching the merits and granting the petition without permitting the Housing Authority an opportunity to answer. See R 15, 25-26. Following Fernandez, the Housing Authority established Petitioner received the T-3 Notice (see R 227-34), but did not address its mailing of the warning letter and T -1 Notice, or Petitioner's underlying failure to recertify and reserved the right to answer if the court denied its cross-motion (see R 145; R 160 at ~ 19). Thus, Petitioner is incorrect when she states the procedural aspects are inextricably intertwined with the issue to be decided and the Housing Authority "set forth in detail" its compliance with Williams. See Pet. Br. at 20-21. Indeed, Petitioner, not the Housing Authority, introduced proof the Housing Authority served the T-l Notice as well as the T-3 Notice. See R 52,57. Thus, this case is nothing like the inapposite criminal case of Crooms v. Corriero, 206 A.D.2d 275 (1st Dep't 1994), on which Petitioner and 690 Gates rely, where, unlike the Housing Authority, the respondent District Attorney necessarily addressed the merits of a challenge to a Court order vacating a plea agreement in its motion to dismiss. See Crooms, 206 A.D.2d at 277; cf. Pet. Br. at 48 20-21; Resp. Br. at 42-43. Moreover, Petitioner incorrectly argues Nassau BOCES Council of Teachers v. Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100, is inapplicable here. See Pet. Br. at 21. In Nassau BOCES, this Court held the "mandate" of CPLR section 7804 "proscribes dismissal on the merits" if respondent makes a pre-answer motion to dismiss on procedural grounds "unless the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer." Id. at 102. Given the track record of delay by Petitioner and 690 Gates, the Court should not deprive the Housing Authority of an opportunity to answer simply because answering will take time. Cf. Pet. Br. at 21; Resp. Br. at 42. Petitioner did not bring this proceeding until nearly four years after she received the T-3 Notice and over two years after she admitted she knew the Housing Authority had terminated her subsidy. 690 Gates did not bring eviction proceedings against Petitioner until nearly three years after the Housing Authority stopped paying monthly subsidies on Petitioner's behalf. 49 POINT IV THE SECOND DEPARTMENT ERRED IN ORDERING THE HOUSING AUTHORITY TO MAKE RETROACTIVE SUBSIDY PAYMENTS In its initial brief before this Court, the Housing Authority established the Order conflicts with federal regulations because it requires the Housing Authority to pay retroactive subsidies for the more than three years Petitioner delayed in asserting her claim on behalf of a tenant who has not certified her continuing eligibility for the Section 8 program, for an apartment that has not passed annual inspections. See App. Br. at 9, 39-40. Petitioner does not dispute that the Order to pay retroactive subsidies conflicts with federal regulations. Federal regulations permit the Housing Authority to make subsidy payments "in accordance with the terms of the HAP contract" (24 C.F.R. § 982.311(a)) and provide a HAP contract automatically terminates if no subsidy payments are made pursuant to that contract for six consecutive months (see 24 C.F.R. § 982.455). 690 Gates does not dispute the HAP contract governing subsidy payments on behalf of Petitioner expired by operation of law in Apri12008, after six months with no subsidy payments. See R 153 at ~ 10; R 185. 690 Gates did not bring an eviction proceeding against Petitioner until August 2010, over two years after the HAP contract expired, and has not cross-claimed against the Housing Authority for subsidy payments in this proceeding. 50 In arguing the Housing Authority must pay retroactive subsidies because the apartment did not actually fail an inspection, and there is no federal regulation prohibiting the Housing Authority from paying a subsidy for an apartment it has not inspected in over seven years (see Resp. Br. at 40),690 Gates ignores the ~ threshold regulatory requirements that the Housing Authority inspect each apartment annually (see 24 C.F.R. § 982.405(a)) and "[a]ll program housing must meet the HQS performance requirements both at commencement of assisted occupancy, and throughout the assisted tenancy" (24 C.F.R. § 982.401(a)(3)). The regulations certainly do not contemplate the Housing Authority would expend scarce tax payer dollars to subsidize an apartment it did not have the opportunity to inspect. Notwithstanding 690 Gates's suggestion to the contrary, the Housing Authority had no duty to inspect Petitioner's apartment as soon as the lower court denied its cross-motion to dismiss in November 2011. Cf. Resp. Br. at 41. The Housing Authority was entitled to pursue this appeal subject to the automatic stay of the Order under CPLR section 5519(a)(1) before answering. See R 17. As this Court has held, "the public policy underlying CPLR 5519(a)(1) [is] to stabilize the effect of adverse determinations on governmental entities and prevent the disbursement of public funds pending an appeal that like this one should result in a ruling in the government's favor." Summerville v. City of New York, 97 N.Y.2d 51 427,433-34 (2002) (internal citations omitted). The Housing Authority rationally devoted its finite resources to inspecting the apartme'nts of families who had not been terminated from the Section 8 program for failing to meet their obligations. CONCLUSION Based on the foregoing, the Housing Authority's Chair respectfully requests this Court reverse the Order and dismiss this Article 78 proceeding in its entirety. Dated: New York, NY October 10,2014 Nancy M. Harnett Corina L. Leske Melissa R. Renwick, Of Counsel DA VID 1. FARBER General Counsel New York City Housing Authority 250 Broadway, 9th Floor New York, NY 10007 (212) 776-5010 Attorneys fm~nt-APpellant flM~.~ By: Melissa R. Renwick, Of Counsel 52 TO: Michael Weisberg Co-Director, Housing Law Unit Terry Hennan, Of Counsel South Brooklyn Legal Services, Inc. 105 Court Street Brooklyn, NY 11201 (718) 237-5553 Attorneys for Petitioner-Respondent Viola Dial Robert Gordon, Of Counsel Reliant Realty Services, Inc. 885 2nd Avenue, 31 st Floor, Suite C New York, NY 10017 (646) 374-0100 Attorneys for Respondent-Respondent 690 Gates LP 53 AFFIRMATION OF SERVICE Melissa R. Renwick, an attorney duly admitted to practice law in the State of New York, hereby affirms under penalties of perjury as follows: I am not a party to this proceeding, I am over 18 years of age, and I am an Agency Attorney with the New York City Housing Authority with offices at 250 Broadway, New York, NY 10007. On October 10,2014, I served three copies of the within Reply Brief of Respondent-Appellant upon: Michael Weisberg, Esq. South Brooklyn Legal Services 105 Court Street Brooklyn, New York 11201 Robert Gordon, Of Counsel Reliant Realty Services, Inc. 885 2nd Avenue, 31 st Floor, Suite C New York, NY 10017 by placing a true copy of these papers in postage paid properly addressed envelopes, addressed as set forth above, and depositing it in a receptacle under the exclusive care and custody of UPS Express for overnight delivery service for delivery within the State of New York, to arrive October 13,2014. Dated: New York, New York October 10,2014 /}#! t:/Z-. Melissa R. Renwick