Matter of Tayinha Banos v. John Rhea / Matter of Viola Dial v. John Rhea

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 60
In the Matter of Tayinha Banos,
Respondent,
v.
John Rhea &c., et al.,
Appellants,
et al.,
Respondent.
-------------------------------
No. 61
In the Matter of Viola Dial,
Respondent,
v.
John Rhea, &c.,
Appellant,
690 Gates, LP,
Respondent.

Case No. 60:
Melissa R. Renwick, for appellants.
Kathleen Brennan, for respondent Banos.
Case No. 61:
Melissa R. Renwick, for appellant.
Michael Weisberg, for respondent Dial.
Robert H. Gordon, for respondent 690 Gates, LP.

STEIN, J.:
The principal issue raised in these cases is when the
statute of limitations begins to run with respect to a tenant's
legal challenge to a termination of Section 8 benefits by
respondent New York City Housing Authority (NYCHA). We hold

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that, pursuant to a federal consent judgment, the statute begins
to run upon the tenant's receipt of a "T-3 letter," regardless of
whether NYCHA has proven that it mailed other notices required by
the consent judgment to be sent to the tenant before the T-3
letter. Because petitioners did not commence these proceedings
within four months of their receipt of the respective T-3
letters, we reverse and dismiss the petitions in both cases.

I.
Pursuant to Section 8 of the US Housing Act of 1937 (42
USC § 1437f [hereinafter Section 8]), the federal government
provides rent subsidies to low-income individuals and families to
enable them to rent privately-owned housing. NYCHA has a
contract with the federal government to administer the Section 8
program in New York City (see 42 USC § 1437f [b] [1]). To
partially resolve a federal class action brought by a group of
tenants alleging due process violations committed by NYCHA in the
termination of their Section 8 benefits, the parties to that
action entered into what is called the Williams first partial
consent judgment (see Williams v New York City Hous. Auth., Dist
Ct, SD NY, 81 Civ 1801, Ward, J., 1984). It is undisputed that
the consent judgment sets forth a specific procedure that NYCHA
must follow when terminating benefits.
"First, after a preliminary determination
that there exists a basis for termination,
NYCHA must send the participant a warning
letter specifically stating the basis for the

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termination and, if appropriate, seeking the
participant's compliance. Thereafter, if the
conditions which led to the preliminary
determination have not been remedied within a
reasonable time, NYCHA must send a second
written notice, the Notice of Termination
[called a T-1 letter], by certified and
regular mail, stating the specific grounds
for termination and informing the participant
that he or she may request a hearing (and an
optional pre-hearing conference). If the
participant does not respond to the Notice of
Termination or T-1 letter, NYCHA is required
to mail a Notice of Default [called a T-3
letter] advising the participant that the
rent subsidy will be terminated and the
grounds therefor and affording the
participant another opportunity to request a
hearing. If the participant takes no action
after the Notice of Default or T-3 letter,
the rent subsidy will be terminated on the
45th calendar day following the date of
mailing of the Notice of Default. If,
however, a participant requests a hearing
after the 45-day period, the participant's
default may be reopened 'upon a showing of
good cause.'"

(Matter of Fair v Finkel, 284 AD2d 126, 127-128 [1st Dept 2001]
[footnotes omitted]). Both of the cases before us involve the
interpretation of the parameters of the Williams consent
judgment.

Matter of Banos v Rhea
NYCHA terminated the Section 8 benefits of petitioner
Tayinha Banos effective June 30, 2010. Banos alleged that she
never received a warning letter, T-1 letter or T-3 letter.
However, she acknowledged receiving something from her landlord
in June 2010 that caused her to send an inquiry to NYCHA, and

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further acknowledged that she received a responsive letter from
NYCHA in early July 2010, informing her that her benefits had
been terminated. In February 2012, Banos commenced this CPLR
article 78 proceeding against NYCHA and its then-chair, John
Rhea1 (hereinafter collectively referred to as NYCHA), seeking to
annul NYCHA's determination as arbitrary, capricious, in
violation of due process and contrary to law, and to reinstate
her benefits.
NYCHA moved to dismiss the proceeding as time barred.
In its motion papers, NYCHA provided affidavits from two
employees setting forth the agency's mailing procedures for the
T-3 letter. The affidavits were supported by a copy of the T-3
letter sent to Banos, a mail log, and a United States Postal
Service (USPS) Track and Confirm report. Although NYCHA's motion
papers addressed the mailing of the T-3 letter to Banos, they did
not mention anything about having sent her a warning letter or a
T-1 letter.
Supreme Court denied NYCHA's motion, finding that,
because NYCHA failed to show that it strictly complied with the
consent judgment's requirement to send all three notices, the
statute of limitations did not begin to run. The court then
provided NYCHA time to submit an answer to the petition. The
Appellate Division affirmed (111 AD3d 707 [2nd Dept 2013]).

1
Rhea is NYCHA's former chair; Shola Olatoye is the current
chair.

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Agreeing that the record failed to show that NYCHA mailed the
warning letter and the T-1 letter, the majority concluded that
"NYCHA's termination of the petitioner's Section 8 benefits was
in violation of lawful procedure" and, therefore, the statute of
limitations did not begin to run (id. at 708). The dissent would
have dismissed the petition on the basis that the Williams
consent judgment specifically provided that the time to commence
a proceeding to challenge a termination of benefits began to run
from receipt of the T-3 letter (see id. at 708-714 [Miller, J.,
dissenting]). According to the dissent, Banos' bare assertion
that she did not receive the T-3 letter was insufficient to rebut
the presumption of delivery created by NYCHA's proof, and she
failed to commence this proceeding within four months of receipt.
The Appellate Division granted NYCHA leave to appeal, certifying
the question as to whether its decision was correct.

Matter of Dial v Rhea
NYCHA contends that it mailed a T-3 letter to
petitioner Viola Dial in August 2007 by regular and certified
mail. In contrast, Dial denies receiving any warning letter, T-1
letter or T-3 letter. However, Dial's landlord, respondent 690
Gates L.P., made her aware in December 2008 that NYCHA had
terminated her Section 8 benefits. Dial sent letters to NYCHA in
December 2008 and September 2010, seeking an explanation and
reinstatement of her benefits. NYCHA promptly responded to each

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letter, declining Dial's requests for reinstatement and informing
her that her benefits were terminated effective October 31, 2007.
In May 2011, Dial commenced this CPLR article 78
proceeding against Rhea, as chair of NYCHA (who we generally
refer to as NYCHA, which is the real party in interest) and 690
Gates. NYCHA moved to dismiss the petition as time barred. To
demonstrate that it mailed the T-3 letter to Dial, NYCHA
submitted affidavits from two of its employees, as well as a
reply affidavit, a copy of the T-3 letter mailed to Dial and mail
logs. To explain the absence of records specifically pertaining
to the mailing of the T-3 letter to Dial, NYCHA also proffered
information indicating that the USPS Track and Confirm system
maintains records for certified mailings for only two years.
Supreme Court denied NYCHA's motion to dismiss and
granted the petition on the merits, annulling NYCHA's
determination and ordering reinstatement of Dial's benefits
retroactive to September 1, 2007. The court found that NYCHA did
not comply with the notice requirements, as it failed to serve a
warning letter and submitted insufficient proof that T-1 and T-3
letters were properly mailed to Dial. The Appellate Division
affirmed, concluding that NYCHA bore the burden of showing that
it served all three notices before its determination could be
considered final and binding on a tenant (111 AD3d 720 [2nd Dept
2013]). Finding that NYCHA failed to show that it mailed two of
the three notices (the warning letter and T-1 letter), the

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Appellate Division determined that the statute of limitations did
not begin to run. The court implicitly found that NYCHA
demonstrated that it mailed the T-3 letter to Dial (see id. at
722-723). The Appellate Division granted NYCHA leave to appeal,
certifying the question as to whether its decision was correct.

II.
All of the parties agree that a four-month statute of
limitations applies to proceedings challenging NYCHA's
termination of Section 8 benefits (see CPLR 217 [1]). There is
also no question that the time to commence such a proceeding
begins to run when the agency determination "becomes final and
binding upon the petitioner" (CPLR 217 [1]; see Matter of Best
Payphones, Inc. v Department of Info. Tech. & Telecom. of City of
N.Y., 5 NY3d 30, 34 [2005]). The Williams consent judgment
specifically addresses when a NYCHA determination to terminate
Section 8 benefits becomes final and binding. The question
before us revolves around the proper interpretation of the
applicable provision of that consent judgment.
In general, a stipulation or consent judgment is a
contract between parties and must be construed according to the
rules of contract interpretation. Stipulations embody a
compromise between competing parties that, if not ambiguous, must
be construed according to their plain language, without relying
on what a party may have been able to prove in litigation (see

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United States v ITT Continental Baking Co., 420 US 223, 236-237
[1975]; Matter of Fox Ridge Motor Inn, Inc. v Town of Southeast,
N.Y., 85 AD3d 785, 786 [2nd Dept 2011]). Whether a contract is
ambiguous is a question of law, and courts may not resort to
extrinsic evidence to aid in interpretation unless the document
is ambiguous (see Consedine v Portville Cent. School Dist., 12
NY3d 286, 293 [2009]).
The plain language of the Williams consent judgment
draws a distinction between what is required to commence the
limitations period for a challenge to a termination of Section 8
benefits, on the one hand, and what is required for NYCHA to
establish the merit of such a termination -- including NYCHA's
full compliance with the notice requirements -- on the other
hand. The consent judgment addresses the statute of limitations
in paragraph 22 (f) as follows: "[F]or the purposes of Section
217 and Article 78 of the [CPLR], the determination to terminate
a [Section 8] subsidy shall, in all cases, become final and
binding upon receipt of the Notice of Determination pursuant to
paragraph '22 (a)' hereinabove, or the Notice of Default,
pursuant to paragraph '3 (e)' above" -- i.e., the T-3 letter --
with an exception that is not relevant here.2
NYCHA contends that the plain language of paragraph 22
(f) states that a determination is final and binding upon the

2
The Notice of Determination mentioned in paragraph 22 (a)
concerns a determination made after a hearing, which is also not
relevant here.

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tenant's receipt of the T-3 letter, without any mention of the
warning letter or T-1 letter. According to NYCHA, the purpose of
the reference to paragraph 3 (e) is simply to specify or clarify
the particular Notice of Default (the T-3 letter) that will be
final and binding, as the consent judgment also refers to another
type of default (see paragraph 22 [d] [referencing a tenant's
default in appearing at a scheduled hearing]). Hence, NYCHA
argues that, to succeed on its statute of limitations defense, it
need prove only that a tenant received the T-3 letter and failed
to commence a proceeding to challenge the termination of Section
8 benefits within four months of the date of such receipt.
In contrast, Banos and Dial contend that the phrase in
paragraph 22 (f) "pursuant to paragraph '3 (e)' above" should be
interpreted to mean that the Notice of Default must have been
properly issued after strict compliance with all of the
requirements of paragraph 3 (e). That paragraph begins, "[i]n
the event that the participant does not respond to the notice as
provided for in Section 3 (b) above, a Notice of Default, in
Spanish and English, shall be mailed to the participant."
According to Banos and Dial, one must then go to paragraph 3 (b),
referenced in paragraph 3 (e), which provides that "if the
conditions which led to the preliminary determination have not
been remedied within a reasonable period of time after the
mailing of the warning letter, a notice in Spanish and English
[i.e., the T-1 letter] shall be sent to the participant by

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certified mail with a copy by regular mail." Paragraph 3 (b)
also sets forth the information that must be included in the T-1
letter. The warning letter mentioned in paragraph 3 (b) is
described in paragraph 3 (a). The introductory language to
paragraph 3 provides that these steps involving the three letters
must be taken after the preliminary determination to terminate
benefits that is described in paragraph 2. Thus, under the
reasoning urged by Banos and Dial, in order to interpret the
meaning of paragraph 22 (f), we would also be required to
construe paragraphs 2 and 3 (a), (b) and (e) -- that is, to
understand paragraph 22 (f), we must incorporate all of paragraph
3 (e), which, in turn, refers to paragraph 3 (b), which
indirectly refers to paragraph 3 (a), which indirectly refers to
paragraph 2.
Although all portions of a contract should be read
together to determine its meaning (see Matter of Bombay Realty
Corp. v Magna Carta, 100 NY2d 124, 127 [2003]), courts may not
distort the meaning of words, under the guise of interpretation,
so as to create a new contract (see Consedine, 12 NY3d at 293).
In the Williams consent judgment, paragraph 3 contains the notice
requirements, while paragraph 22 (f) addresses the statute of
limitations. Paragraph 3 does not lose its meaning if it is
interpreted alone, as establishing the procedure for notices,
without being fully incorporated into paragraph 22. Similarly,
the language of paragraph 22 (f) makes sense on its own, without

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circuitously winding through paragraph 2 and three subdivisions
of paragraph 3 for its interpretation. Under the plain language
of paragraph 22 (f), a determination to terminate benefits
becomes final and binding on a tenant for statute of limitations
purposes upon receipt of the T-3 notice. Moreover, the purpose
of the reference in paragraph 22 (f) to paragraph 3 (e) is to
clearly identify the T-3 letter as the relevant notice; there is
no indication that the reference was intended to incorporate all
of the procedural requirements contained in paragraph 3 as
conditions precedent to the commencement of the limitations
period. Stated simply, receipt of the T-3 letter, alone, starts
the clock.
Contrary to the arguments advanced by Banos and Dial,
our interpretation does not defeat the purpose of the Williams
consent judgment, which is to prevent the unnecessary termination
of Section 8 benefits. The T-3 letter informs the tenants that
Section 8 benefits will be terminated in 45 days, provides a
reason for the termination, and informs the tenants that they may
still request a hearing within 45 days (in which case benefits
will continue until a final determination is made), that a
challenge received after 45 days will be considered if "good
cause" is shown, and that, if they wish to challenge the
determination in court, they must do so within four months of the
date of the notice. While the consent judgment provides the
added protection of two additional notices -- without which a

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termination of benefits will not be upheld on the merits if
timely challenged -- the T-3 letter contains sufficient
information to put tenants on notice of the termination and their
rights with respect thereto, and to advise them as to how to
proceed, such that it is not a deprivation of due process to
designate that document as the trigger for commencement of the
statute of limitations.
Nor will our interpretation allow or encourage NYCHA to
disregard its obligation to provide all notices required by the
Williams consent judgment. Inasmuch as the limitations period
does not begin to run until the tenant's receipt of the T-3
letter, at least that notice must be given before NYCHA can
validly raise timeliness as a defense to any challenge by a
tenant. Further, NYCHA has no incentive to fail to provide the
other two required notices, as such failure will result in NYCHA
losing any timely challenge on the merits and, consequently,
annulment of its determination to terminate benefits and
potential reinstatement of such benefits (see Matter of Fair, 284
AD2d at 128-129; see also Matter of Robinson v Martinez, 308 AD2d
355, 355 [1st Dept 2003]). In any event, the issue of the merits
of NYCHA's determination is entirely separate and distinct from
the question of timeliness. In other words, the question of
whether NYCHA followed proper procedure in reaching its
determination relates to the merits of the underlying petition,
but does not affect the finality of its determination for statute

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of limitations purposes.3 To hold otherwise would allow a review
of the merits -- i.e., finding that NYCHA's determination was in
"violation of lawful procedure" pursuant to CPLR 7803 (3) --
either before deciding the dispositive statute of limitations
issue or despite the petition being untimely.4
For these reasons, we hold that the timeliness of a
proceeding against NYCHA challenging a termination of Section 8
benefits is measured from the tenant's receipt of the T-3 letter,
regardless of whether NYCHA proves that it mailed the other two
notices (see Matter of Parks v New York City Hous. Auth., 100
AD3d 407, 408 [1st Dept 2012]; Matter of Lopez v New York City
Hous. Auth., 93 AD3d 448, 448-449 [1st Dept 2012]; Matter of
Fernandez v NYCHA Law Dept., 284 AD2d 202, 202 [1st Dept 2001]).
While this rule may result in the dismissal of petitions for some

3
Notably, even arguments concerning violations of due
process may be precluded if a legal challenge is untimely (see
Solnick v Whalen, 49 NY2d 224, 227 [1980]; Matter of Saunders v
Rhea, 92 AD3d 602, 603 [1st Dept 2012]).
4
The dissent begins by stating that the Williams consent
judgment established a three-step procedure for terminating
Section 8 benefits and that "[t]he majority opinion effectively
creates a one-step procedure for terminating Section 8 benefits"
(dissenting op at 1). That statement reflects a
misinterpretation of our decision, and conflates a merits
determination with a conclusion concerning the timeliness of a
challenge to a termination of benefits. We, like the dissent,
recognize the consent judgment's three-step procedure for
terminating benefits; however, unlike the dissent, we also
recognize the consent judgment's reliance on just the final one
of those steps for determining when the statute of limitations
begins to run.

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tenants with otherwise meritorious claims, such a result is
inherent in any limitations period. However, statutes of
limitations embody an important public policy of providing
finality for agency determinations and reflect a legislative
judgment to shield parties from having to defend against stale
claims (see Zumpano v Quinn, 6 NY3d 666, 673 [2006]; Matter of
Best Payphones, Inc., 5 NY3d at 34 [recognizing a policy reason
for abbreviated time frames applicable to CPLR article 78
proceedings that “the operation of government agencies should not
be unnecessarily clouded by potential litigation”]). In arriving
at the terms of the Williams consent judgment, this policy -- set
forth in paragraph 22 (f) -- was evidently balanced against the
policy underlying the procedural requirements of paragraphs 2 and
3 for a valid termination of benefits.5
Turning to the contentions of Banos, Dial and 690 Gates
that NYCHA failed to establish that it properly mailed the T-3
letters, paragraph 22 (g) of the Williams consent judgment
contains a rebuttable presumption that the T-3 letter is received
"on the fifth date following the date of mailing." In each case
before us, the Appellate Division found, either explicitly or
implicitly, that NYCHA established proper mailing of the T-3

5
In fact, NYCHA asserts that, while the tenants in
Williams gained a three-step notice procedure to terminate
Section 8 benefits that is much broader than the notice required
by federal law (see 24 CFR 982.555 [c] [2]), NYCHA's only real
gain in the consent judgment was the delineation of the T-3
notice as the definitive starting point for limitations purposes.

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letter (see 111 AD3d at 708; id. at 711 [Miller, J., dissenting];
111 AD3d at 722-723). Those factual determinations are supported
by the record in each case, and each petitioner's bare denial of
receipt is insufficient to rebut the presumption contained in
paragraph 22 (g) of the consent judgment (see Kihl v Pfeffer, 94
NY2d 118, 122 [1999]; Nassau Ins. Co. v Murray, 46 NY2d 828,
829-830 [1978]; Matter of Hudson House, LLC v New York State Div.
of Hous. & Community Renewal, 89 AD3d 1084, 1084 [2nd Dept
2011]). Thus, the statute of limitations began to run five days
after mailing of the T-3 letters, notwithstanding the absence of
proof regarding mailing of the warning letters or T-1 letters.
The parties do not dispute that, under this interpretation of the
consent judgment, each of these proceedings was untimely if
measured from the applicable date.6
Accordingly, in each case, the order of the Appellate
Division should be reversed, without costs, and NYCHA's motions
to dismiss the petitions as time-barred granted. In Matter of
Banos, we answer the certified question in the negative and, in
Matter of Dial, it is unnecessary for us to answer the certified
question.

6
Based on our analysis, we need not reach NYCHA's
alternative arguments that the statute of limitations starts
running when a tenant knew or should have known of the
termination of benefits, or that laches bars either of these
proceedings.

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Matter of Banos v Rhea; Matter of Dial v Rhea
Nos. 60 & 61

FAHEY, J.(dissenting):
I respectfully dissent. A consent judgment is a
contract between parties. A three-step termination procedure for
Section 8 benefits was established to resolve Williams v New York
City Hous. Auth. (Dist Ct, SD NY, 81 Civ 1801, Ward, J., 1984).
The majority opinion effectively creates a one-step procedure for
terminating Section 8 benefits. The result is that the
protections agreed to in Williams are meaningless.
Indeed, in my view, the consent judgment by which
Williams was resolved must be read such that a determination to
terminate Section 8 benefits is made only upon the proper mailing
of all three of the notices demanded by that judgment.
Consequently, in Matter of Banos v Rhea I would conclude that the
statute of limitations was not triggered, and I would thus affirm
the order of the Appellate Division and answer the certified
question in the affirmative. In Matter of Dial v Rhea, I would
reach the same conclusion with respect to the statute of
limitations but, because respondent John Rhea1 should have been
permitted to answer the petition, I would modify the Appellate
Division’s order by vacating the part of the judgment of Supreme

1
Rhea was sued in both proceedings in his capacity as
chairman of NYCHA. Similar to the tack taken by the majority,
and for ease of review, from this point forward both Rhea and
NYCHA will be referred to as NYCHA.

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Court granting the petition and remitting to that court for
further proceedings, and otherwise affirm.
I.
“Under the Section 8 program, 42 USC § 1437f, [NYCHA]
provides rental subsidies to landlords on behalf of indigent
tenants” (Williams v New York City Hous. Auth., 975 F Supp 317,
319 [SD NY 1997]). In March 1981, plaintiff Diedre Williams
commenced an action seeking
“injunctive relief to challenge on procedural
due process grounds NYCHA’s methods of
terminating Section 8 assistance. Williams
contested NYCHA's termination of Section 8
payments to landlords without prior notice to
tenants or a pre-termination hearing. In
addition, she contested the fact that,
because NYCHA was not a party to eviction
proceedings brought against tenants in
Housing Court for non-payment of NYCHA's
share of rent, tenants were unable to
litigate the validity of NYCHA's termination
of assistance. Over a period of two years,
several other plaintiffs intervened in the
proceedings, and on August 10, 1983, the
[United States District Court for the
Southern District of New York] granted [the]
plaintiffs’ motion for class certification”
(id.).
Williams was eventually resolved through two partial
consent judgments, the first of which (generally, consent
judgment) is germane to both of the appeals now before us.2 The

2
Thus far, the background facts have been taken from an
opinion of the District Court awarding the plaintiffs in Williams
attorney’s fees pursuant to 42 USC § 1988 following the
resolution of that action through, inter alia, the consent
judgment (see Williams, 975 F Supp at 319).

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circumstances of these cases require the full recitation of the
relevant parts of the consent judgment:
“1. Termination of the subsidy or
eligibility of any participant in the Section
8 Housing Assistance Program . . .
administered by [NYCHA] . . . shall be made
only after a determination in accordance with
the procedures and provisions herein. . . .
“3. After [a] preliminary determination [to
terminate a Section 8 subsidy or eligibility
therefor] is made, [NYCHA] shall take the
following steps:
“(a) a warning letter in Spanish and English
will be sent to the participant, by regular
mail, specifically stating the basis for the
proposed adverse action; and, where
appropriate, seeking the participant’s
compliance;
“(b) thereafter, if the conditions which led
to the preliminary determination have not
been remedied within a reasonable period of
time after the mailing of the warning letter,
a notice in Spanish and English shall be sent
to the participant by certified mail with a
copy by regular mail; the notice shall state
the proposed adverse action and specific
grounds for [NYCHA’s] complaint with enough
specificity for the participant to prepare a
defense. It shall inform the participant
that he or she may request a hearing [with
NYCHA] by responding to the notice, in
writing, within [20] days after mailing; the
notice shall include information about the
optional pre-hearing conference . . . that is
available to the participant; said notice
shall include a copy of the procedure herein,
shall be sent in duplicate, and will contain
a section where the participant may fill in
his or her response; with instructions that
the participant return one copy with his or
her written response. . . .
“(e) In the event that the participant does
not respond to the notice as provided for in
[paragraph] 3(b) . . . , a Notice of Default,

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in Spanish and English, shall be mailed to
the participant. . . . Said Notice of
Default shall have the same force and effect
as a determination after a hearing to
terminate the subsidy, and procedures for
vacating such default shall be those set
forth in paragraph ‘22’ of this procedure.
* * *
“22. A determination to terminate a
participant’s subsidy or eligibility shall be
implemented, as follows:
“(a) a Notice in Spanish and English, shall
be sent to the participant by regular and
certified mail setting forth [NYCHA’s]
determination and including . . . an
explanation of the right to seek judicial
review and of the procedure for reopening a
default . . . .
“(f) 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
. . . Notice of Default, pursuant to
paragraph ‘3(e)’ . . . .
“(g) For the purposes of this paragraph,
there is a rebuttable presumption of receipt
of the . . . notices referred to herein on
the fifth day following the date of mailing.”
The warning letter referred to in paragraph 3 (a) of
the consent judgment has no pseudonym. The notice of termination
letter referred to in paragraph 3 (b) of that judgment, however,
is known as a T-1 letter, while the notice of default letter
referred to in paragraph 3 (e) therein is known as a T-3 letter
(see Matter of Fair v Finkel, 284 AD2d 126, 127-128 [1st Dept
2001]).

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II.
Matter of Banos v Rhea
In February 2012, Banos commenced a proceeding pursuant
to CPLR article 78 against NYCHA and her landlord, respondent
Coney Island Towers LLC, challenging NYCHA’s termination of her
Section 8 benefits. There Banos alleged that NYCHA failed to
comply with the consent judgment before terminating the subsidy
inasmuch as she did not receive from NYCHA any of the three
letters demanded by paragraph 3 of that judgment, i.e., she was
not provided with a warning letter, a T-1 letter, or a T-3
letter. In lieu of answering, NYCHA “cross-moved” for an order
dismissing the petition as time-barred (see CPLR 3211 [a] [5]),
contending that Banos failed to commence the proceeding within
four months of NYCHA’s final and binding determination to
terminate her Section 8 benefits (see CPLR 217 [1]). NYCHA
specifically alleged that, pursuant to paragraph 22 (f) of the
consent judgment, the determination to terminate Section 8
benefits became final and binding upon Banos’s receipt of a T-3
letter, and that it had established Banos’s presumptive receipt
of that letter in May 2010.
Supreme Court denied the cross motion and granted NYCHA
60 days in which to answer the petition, reasoning that NYCHA
breached the consent judgment inasmuch as it failed to send Banos
a warning letter and a T-1 letter and thus did not trigger the
applicable statute of limitations. On appeal, with one Justice

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dissenting, the Appellate Division affirmed, ruling that because
“NYCHA did not comply with the notice provisions set forth in the
. . . consent judgment,” i.e., because NYCHA did not send to
Banos all three of the notices demanded by that judgment, “the
statute of limitations was not properly triggered and did not
begin to run” (111 AD3d 707, 708 [2d Dept 2013]). The Appellate
Division subsequently granted NYCHA leave to appeal and certified
the question whether its order was properly made.
Matter of Dial v Rhea
In May 2011, Dial commenced a proceeding pursuant to
CPLR article 78 against NYCHA and her landlord, respondent 690
Gates, LP (690 Gates). Similar to Banos, Dial alleged that NYCHA
failed to comply with the consent judgment inasmuch as she did
not receive from NYCHA any of the three letters prescribed in
that judgment before her Section 8 benefits were terminated in
August 2007. Again in lieu of answering, NYCHA “cross-moved” for
an order dismissing the petition as time-barred (see CPLR 217
[1]; CPLR 3211 [a] [5]). NYCHA specifically contended that,
pursuant to paragraph 22 (f) of the consent judgment, the
determination to terminate Section 8 benefits became final and
binding upon Dial’s receipt of a T-3 letter. In the same vein,
NYCHA maintained that it had established Dial’s presumptive
receipt of that letter in August 2007.
For its part, 690 Gates opposed the cross motion,
contending that NYCHA failed to establish that the T-3 letter had

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been properly mailed to Dial. More importantly to our analysis,
690 Gates also contended that, to the extent the cross motion was
denied, NYCHA should not be afforded additional time to answer
the petition. According to 690 Gates, in the absence of evidence
that NYCHA had complied with the notice requirements of the
consent judgment, the court would be constrained to grant the
petition, and an answer would be futile. Supreme Court agreed
with Dial and 690 Gates inasmuch as it, inter alia, granted the
petition without affording NYCHA the opportunity to answer and
directed the payment of any rent subsidy for Dial that was not
issued because of the cessation of her Section 8 benefits.
On appeal, the Appellate Division affirmed, this time
unanimously. In this order, the Appellate Division more fully
probed the background common to this appeal and Banos before
concluding that, “[a]s a result of [NYCHA’s] failure to abide by
the notice provisions set forth in the . . . consent judgment,
the statute of limitations was not properly triggered and did not
begin to run” (111 AD3d 720, 723 [2d Dept 2013]). The Appellate
Division subsequently granted NYCHA leave to appeal and certified
the question whether its order was properly made.
III.
CPLR “[a]rticle 78 proceedings are subject to a
four-month statute of limitations, running from the time when
‘the determination to be reviewed becomes final and binding’ ”
(People v Liden, 19 NY3d 271, 275-276 [2012], quoting CPLR 217

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[1]; see Walton v New York State Dept. of Correctional Servs., 8
NY3d 186, 194 [2007]). In Banos, there can be no dispute that,
to the extent the T-3 letter presumptively received in May 2010
is deemed a final determination for the purpose of triggering the
statute of limitations, the petition, which was filed in February
2012, would be time-barred. The same is true in Dial; there, the
T-3 letter was presumptively received in August 2007, and the
petition was filed in May 2011. Consequently, our review
distills to the question whether the consent judgment renders
final a determination to terminate based on the mailing of only a
T-3 letter or, whether, under the terms of that judgment, a
determination to terminate is final only when all three of the
warning, T-1, and T-3 letters have been mailed. Cast another
way, the primary issue herein is whether mailing of only the T-3
letter, rather than each of the three notices NYCHA previously
agreed to provide in the consent judgment, triggered the statute
of limitations in each of these CPLR article 78 proceedings.
Turning now to the rules that guide our analysis, it is
settled that “[c]onsent decrees, while . . . judicial decrees
subject to enforcement by the court, nonetheless are agreements
between parties to litigation that ‘should be construed basically
as contracts’ ” (United States v International Bhd. of Teamsters,
Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 998 F2d 1101,
1106 [2d Cir 1993], quoting United States v ITT Continental
Baking Co., 420 US 223, 236-237 [1975]). Put differently, “[a]

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consent decree is in the nature of a contract, which we must
interpret in light of its plain language” (Callahan v Carey, 12
NY3d 496, 502 [2009] [internal quotation marks and citation
omitted]). “Under New York law, written agreements are construed
in accordance with the parties’ intent and ‘[t]he best evidence
of what parties to a written agreement intend is what they say in
their writing’” (Schron v Troutman Sanders LLP, 20 NY3d 430, 436
[2013], quoting Greenfield v Philles Records, 98 NY2d 562, 569
[2002]).
Indeed,
“ ‘[w]hen parties set down their [agreement]
in a clear, complete document, their writing
should . . . be enforced according to its
terms’ (Vermont Teddy Bear Co. v 538 Madison
Realty Co., 1 NY3d 470, 475 [2004], quoting
W.W.W. Assoc. v Giancontieri, 77 NY2d 157,
162 [1990]). A contract should be read as a
whole to ensure that undue emphasis is not
placed upon particular words and phrases (see
South Rd. Assoc., LLC v International Bus.
Machs. Corp., 4 NY3d 272, 277 [2005], citing
Matter of Westmoreland Coal Co. v Entech,
Inc., 100 NY2d 352, 358 [2003]). Courts ‘may
not by construction add or excise terms, nor
distort the meaning of those used and thereby
make a new contract for the parties under the
guise of interpreting the writing’ (Vermont
Teddy Bear, 1 NY3d at 475, quoting Reiss v
Financial Performance Corp., 97 NY2d 195, 199
[2001])” (Consedine v Portville Cent. School
Dist., 12 NY3d 286, 293 [2009]).
Importantly, too, courts should “aim [for] a practical
interpretation of the expressions of the parties to the end that
there be a realization of [their] reasonable expectations”
(Sutton v East Riv. Sav. Bank, 55 NY2d 550, 555 [1982] [internal

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quotation marks omitted]).
Based on those principles, I conclude that the statute
of limitations was not triggered in either of the instant
proceedings. As noted, the consent judgment arose from Williams
(Dist Ct, SD NY, 81 Civ 1801, Ward, J., 1984), which, in turn,
arose from a challenge to NYCHA’s methods of terminating Section
8 assistance (see Williams, 975 F Supp at 319). As also noted,
the consent judgment, inter alia, sets forth an agreed-upon
series of steps NYCHA must take after making a preliminary
determination to discontinue benefits under the Section 8
program. Pursuant to paragraph 3 (a), NYCHA must send a warning
letter to the participant by regular mail. If the conditions
that led to the preliminary determination are not remedied
following the warning letter, paragraph 3 (b) provides that NYCHA
must then mail a second letter containing a more specific notice
of termination, i.e., a T-1 letter. Assuming those letters are
mailed, and assuming there is no response to such correspondence,
pursuant to paragraph 3 (e), NYCHA then must send a third letter,
i.e., a T-3 letter, therein notifying the participant of the
default. In such cases, paragraph 22 (f) provides that “the
determination to terminate a subsidy shall . . . become final and
binding upon receipt of the [T-3 letter].”
The majority and NYCHA seize upon paragraph 22 (f) in
concluding that the mailing of the T-3 letter, even in the
absence of the mailing of warning and T-1 letters, triggers the

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statute of limitations in proceedings such as these. I disagree.
To read paragraph 22 (f) in such isolation unduly emphasizes a
single part of the consent judgment (cf. Consedine, 12 NY3d at
293) and results in an impractical interpretation of that
agreement (cf. Sutton, 55 NY2d at 555) that eviscerates its
obvious ameliorative purpose of standardizing the termination of
Section 8 benefits through a trinity of notices. In my view,
taking the position that the mailing of a T-3 letter alone is
sufficient to trigger the statute of limitations does not simply
limit the combined condition precedent to termination created by
the consent judgment’s unified mailing requirement, but destroys
it. Indeed, the consent judgment, although far from precisely
worded, more than once refers to the process by which the written
warning and explication of the termination of Section 8 benefits
is to be accomplished as a single “procedure” (see paragraphs 3
[b] and 3 [e] of the consent judgment; cf. paragraph 1 of that
agreement). The nature of that reference strongly suggests that
the three notices now at issue are part of one unit and are
effective only when given in combination with one another.
NYCHA’s failure to provide the series of notices required by the
consent judgment to form a termination of Section 8 benefits made
the determinations to terminate petitioners’ benefits neither
effective nor final. The statute of limitations was not
triggered in either of these proceedings.
Implicit in this analysis is the rejection of NYCHA’s

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alternative contention that the statute of limitations began to
run when each petitioner knew or should have known of its
decision to terminate her Section 8 subsidy, irrespective of
whether petitioners were properly notified of the cessation of
those benefits. In my view that contention is merely a backdoor
way of arguing that, because petitioners received or presumably
received the respective T-3 notices approximately 1½ years
(Banos) and approximately 3½ years (Dial) before these
proceedings were commenced, each such proceeding is time-barred.
To adopt that approach would burden frequently elderly and
unsophisticated Section 8 beneficiaries with interpreting the T-3
notice---a tack that is simply contrary to the notice and mailing
procedure of the consent judgment.
NYCHA’s additional alternative contention in Dial with
respect to laches is likewise meritless. “‘The essential element
of [that] equitable defense is delay prejudicial to the opposing
party’” (Capruso v Village of Kings Point, 23 NY3d 631, 641
[2014], quoting Matter of Schulz v State of New York, 81 NY2d
336, 348 [1993]), but here NYCHA should have immediately known of
the threat of litigation flowing from its breach of the protocol
for terminating Section 8 benefits to which it agreed in the
consent judgment.
IV.
Finally, with respect to Dial, I agree with NYCHA that
it should have been permitted to answer the petition following

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the denial of its cross motion to dismiss. CPLR 7804 (f)
provides, in relevant part, that “[i]f [a] motion [to dismiss] is
denied, the court shall permit the respondent to answer, upon
such terms as may be just.” This Court has recognized an
exception to that mandate where “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” (Matter of Nassau BOCES Cent.
Council of Teachers v Board of Coop. Educ. Servs. of Nassau
County, 63 NY2d 100, 102 [1984]), but that exemption does not
apply in this case. Here the record reflects that NYCHA sought
dismissal of the petition on the grounds that it is barred by the
statute of limitations and by the doctrine of laches, while at
the same time reserving its right to answer to the extent the
court denied the cross motion. Inasmuch as NYCHA contended that
the statute of limitations with respect to this proceeding was
triggered by the mailing of the T-3 letter to petitioner, the
evidence submitted in support of the cross motion naturally was
focused on the T-3 notice. Moreover, although NYCHA could
conceivably have addressed the issue of the mailing of the
warning and T-1 letters on reply, there was no reason for it to
do so given its core contention that the T-3 letter alone is an
independent trigger for the statute of limitations.
Consequently, NYCHA should have been permitted to answer the
petition in Dial and to contest, inter alia, the question whether

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it owes retroactive rent subsidies to Dial.
Accordingly, in Matter of Banos v Rhea I would affirm
the order of the Appellate Division and answer the certified
question in the affirmative. In Matter of Dial v Rhea, I would
modify the order of the Appellate Division by vacating the part
of Supreme Court’s judgment granting the petition and remitting
to that court for further proceedings.
* * * * * * * * * * * * * * * * *
For Case No. 60: Order reversed, without costs, motion to
dismiss petition as time-barred granted, and certified question
answered in the negative. Opinion by Judge Stein. Judges Read,
Pigott and Abdus-Salaam concur. Judge Fahey dissents in an
opinion in which Chief Judge Lippman and Judge Rivera concur.
For Case No. 61: Order reversed, without costs, motion to
dismiss petition as time-barred granted, and certified question
not answered as unnecessary. Opinion by Judge Stein. Judges
Read, Pigott and Abdus-Salaam concur. Judge Fahey dissents in an
opinion in which Chief Judge Lippman and Judge Rivera concur.

Decided May 12, 2015

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