Petitioner brings this proceeding pursuant to Article 78 of the CPLR seeking to set aside respondent Housing Authority's decision to terminate her Section 8 subsidy in April of 2004.

Anyone who has participated in any way, even tangentially, in the byzantine overlapping legal structures affecting the landlord/tenant relationship in this city knows that, the legal rules regarding the acquisition, maintenance, and termination of housing rights is a complex business. Suffice to say that the question usually goes beyond, "How many angels can dance on the head of this pin?" to inquiries equivalent to, "How many angels are doing jettés, how many are doing pliés, and should one group really be doing a waltz?" The Section 8 program is subject not only to the rules established by federal law pursuant to 42 U.S.C. §1437(f), but is also subject to a [*2]federal consent judgment, Williams v. New York City Housing Authority, 81 Civ. 1801 (R.W.) (hereinafter the "Williams Consent Judgment"), which sets forth comprehensive notice procedures which must be followed before terminating Section 8 assistance. The First Partial Consent Judgement in Williams provides that termination of the Section 8 subsidy "shall be made only after a determination in accordance with the procedures and provision herein." Those procedures, set forth at ¶¶ 3(a), (b), (e), provide that no fewer than three notices must be sent to the Section 8 subsidy recipient pending termination.

After a preliminary determination that the recipient is subject to termination procedures, the Housing Authority must send the recipient a warning letter specifically stating the basis for the termination and, if appropriate, seeking the recipient's compliance. If the conditions which led to this preliminary determination are not remedied within a reasonable time, the Housing Authority must send a second written notice, the Notice of Termination, which the Housing Authority calls the "T-1 letter," by certified and regular mail, providing the specific grounds for termination and informing the recipient that she may request a hearing. If the recipient does not respond to the Notice of Termination letter, the Housing Authority must mail a Notice of Default, which the Housing Authority calls the "T-3 letter" to the recipient, informing her that the rent subsidy will be terminated, and advising her of the grounds for the termination. The recipient must be afforded an opportunity to request a hearing. Finally, if the recipient does not respond to the "T-3 letter" the Section 8 subsidy is terminated on the 45th calendar day following the date of mailing of the Notice of Default. However, if a recipient requests a hearing after the 45-day period, the default may be reopened "upon a showing of good cause." See generally the First Williams Consent Decree ¶22 (e). The Williams Consent Decree requires all three notices to be sent by regular and certified mail.

Paragraph 22 of the Williams Consent Judgment also specifies the applicable statute of limitations to bring an Article 78 proceeding to challenge the Housing Authority's determination. Pursuant to that provision, the Housing Authority's determination to terminate a recipient's Section 8 benefits becomes final and binding upon the tenant's receipt of the T-3 "Notice of Default: Termination of Section 8 Subsidy" letter. That same paragraph establishes a rebuttable presumption that the T-3 letter is received by the tenant within five days of mailing. CPLR §7801 provides that "relief previously obtained by certiorari to review, mandamus, or prohibition shall be obtained in a proceeding under this article." Section 7804 (a) provides that "a proceeding under this article is a special proceeding." CPLR 217 provides that "special proceedings brought under Article 78 of the CPLR must be commenced within four months after the administrative determination to be reviewed becomes final and binding on the aggrieved party."

Respondent's position is that the statute of limitations has run on this action, and that petitioner's motion is time-barred.

This case is yet another glaring example of respondent Housing Authority's kamikaze refusal to comply with the letter of the Williams Consent Judgment. First, it is clear from respondent's answer that the Housing Authority never sent the initial "Warning Letter" to petitioner. Compounding its procedural errors, respondent then sent the "T-1 letter", the "Notice of Termination of Section 8 Subsidy" on December 15, 2003, to the wrong address! It is uncontested that petitioner resides at 149-11 85th Street, Apartment 1C in Queens, New York; [*3]however, respondent sent the "T-1 letter" to 149-11 85th Street, Apartment 1L. See Respondent's Verified Answer at Exhibit 3. Furthermore, respondent sent this notice by regular and "accountable mail," despite the fact that the Williams Consent Decree mandates that this notice be sent by regular and certified mail. As this court has observed in similar cases, it is unclear, indeed, baffling that respondent persists in using a form of mail which is not specified by the Consent Decree nor has it been specifically deemed the "functional equivalent" of certified mail by the federal judge overseeing the Williams Consent Decree.

The coup-de-grace procedural error occurred on or about January 16, 2004, when respondent Housing Authority sent the "T-3 letter," the "Notice of Termination of Section 8 Subsidy" to petitioner once again to the wrong address. This notice, like the "T-1 letter" was sent to "Apartment 1L", not petitioner's actual residence, Apartment 1C.

Respondent argues that these procedural errors should be overlooked because, it asserts, petitioner had actual knowledge of these events because her landlord received notices of the pending termination and discussed it with her. See Respondent's Memorandum of Law at p.6. Accordingly, if claims that since that petitioner was effectively on notice, at least as of March 17th or 18th , 2003, that her subsidy had been terminated, her Article 78 proceeding is time-barred pursuant to the 4-month statute of limitations which governs these actions.

This is yet another example, in a lamentable series of examples, that respondent Housing Authority refuses to acknowledge and conform its administrative practices to the unyielding dictates of the Williams Consent Decree. This is not the first time that respondent has been painfully reminded of this reality. In the Matter of Daniel Fair v. Kalman Finkel et at., 284 AD2d 126 (1st Dept. 2001), the legal issue before the court was virtually identical to the issue presented here. In Fair, respondent Housing Authority followed the same defective procedure for notice of termination that it followed in this case. It failed to send the initial warning letter, as required by the Williams Consent Decree, sending only the "T-1" and "T-3" letters. There was overwhelming evidence that the petitioner in Fair was just as aware of the endangered status of her Section 8 rent subsidy as the petitioner here. The Fair motion court, as desirous of applying common sense and experience to the facts in Fair as is this court, affirmed the Housing Authority's termination of benefits. The Appellate Division, however, reversed the motion court and remanded for a hearing as to the merits of the proposed termination of the Section 8 benefits. It made that determination on the basis of a strict construction and application of the notice requirements in the Williams Consent Decree. The court observed, in that case, in language which is equally applicable to the case at bar:

"The Williams Consent Decree provides that a termination of a Section 8 subsidy shall be made only after a determination in accordance with the procedures and provisions herein. Those procedures require that the participant be advised of the specific grounds for termination of benefits and expressly provide for mailing of a warning letter, Notice of Termination, which must be served by both regular and certified mail, and a Notice of Default. There is no showing that NYCHA has complied with these procedures in this case; on the contrary, the record reflects that NYHA mailed only two of the three required notices and that none of the notices were served by certified mail. Absent proof that NYCHA complied with the required procedures, its termination of petitioner's Section 8 subsidy was in violation of lawful procedure." Fair at 129.

Here, as in Fair, petitioner received only two of the three legally mandated notices. That procedural infirmity was compounded by the fact that respondent mailed the two notices that it did send to the wrong address apartment 1L instead of apartment 1C. Since notice was defective, the statute of limitations was not properly triggered and has not run. Accordingly this court is constrained by the Appellate Division's unequivocal holding in Fair, and must grant the petition to the extent of remanding the matter to respondent for a hearing as to the merits of the proposed Section 8 benefits. The Housing Authority is hereby ordered to reinstate petitioner's Section 8 benefit in futuro pending its final determination on the merits after a hearing.

This court implores the respondent Housing Authority to stop banging its head against the procedural wall of the Williams Consent Decree and to set in place administrative procedures which scrupulously conform to the Decree's requirements. Only then will respondent, as well as the courts, be spared this onslaught of needless litigation.

This constitutes the Decision and Order of this court.

Dated: October 27, 2004

New York, New York

____________________________

William A. Wetzel