| Matter of Miller v Mulligan |
| 2010 NY Slip Op 03937 [73 AD3d 781] |
| May 4, 2010 |
| Appellate Division, Second Department |
| In the Matter of Delisa Miller, Appellant, v GeraldMulligan, Commissioner of the Westchester County Department of Planning, et al.,Respondents. |
—[*1] Robert F. Meehan, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and ThomasG. Gardiner of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the WestchesterCounty Department of Planning dated November 7, 2007, which terminated the petitioner'seligibility to participate in the Section 8 Rental Housing Choice Voucher Program (see42 USC § 1437f [b] [1]), the petitioner appeals from an order of the Supreme Court,Westchester County (R. Bellantoni, J.), entered March 12, 2009, which granted the motion of therespondents Gerald Mulligan, Commissioner of the Westchester County Department ofPlanning, the Westchester County Department of Planning, Division of Housing and CommunityDevelopment, and the Westchester County Section 8 Rental Assistance Program pursuant toCPLR 3211 (a) (7) and 7804 (f) to dismiss the petition for failure to state a cause of action.
Ordered that the notice of appeal from the order is deemed to be an application for leave toappeal from the order, and leave to appeal is granted (see CPLR 5701 [c]); and it isfurther,
Ordered that the order is affirmed, with costs.
On April 13, 2007, the respondents Gerald Mulligan, Commissioner of the WestchesterCounty Department of Planning, the Westchester County Department of Planning, Division ofHousing and Community Development, and the Westchester County Section 8 Rental AssistanceProgram (hereinafter collectively the respondents), issued the petitioner a Housing ChoiceVoucher (hereinafter the voucher) under the federal Section 8 Rental Housing Choice VoucherProgram (hereinafter the program) created by section 8 of the United States Housing Act of 1937(see 42 USC § 1437f [b] [1]). Although the voucher initially expired after 2months, the respondents extended the term of the voucher on at least three separate occasions, sothat it expired on October 13, 2007, representing the maximum permissible 180-day term of thevoucher. Although both the petitioner and the landlord of the unit that the petitioner wished torent signed several documents required by the respondents during the period when the voucherwas in effect, the landlord failed to submit a signed residential lease to the respondents duringthat period, despite at least one written request by the respondents that it do so, and severaltelephone conversations in which the respondents informed the petitioner that they had yet toreceive the signed lease. The record reveals that, [*2]during theterm of the voucher, the petitioner made no attempts to locate another landlord who wouldaccept her voucher and lease a residential unit to her. By letter dated November 7, 2007, therespondents, based on the expiration of the voucher, terminated the petitioner's eligibility toparticipate in the program. One week later, the respondents informed the petitioner during atelephone conversation that she could reapply for eligibility to participate in the program.
The petitioner commenced the instant proceeding pursuant to CPLR article 78, seeking toannul the respondents' determination on the ground, inter alia, that their unreasonable delays inprocessing her rental assistance application caused the termination of the voucher. The facts asalleged in the petition, however, reveal that the gravamen of the petitioner's challenge was thatthe landlord unreasonably delayed in returning a signed lease to the respondents, that therespondents did not do more to compel the landlord to submit the signed lease to them, and thatthe respondents should have extended the term of the voucher beyond the 180-day maximumfixed both by federal regulation and the Section 8 Administrative Plan of the New York StateDivision of Housing and Community Renewal (hereinafter the Administrative Plan) promulgatedby that agency to implement the United States Housing Act of 1937 (see 24 CFR982.303; Administrative Plan § 2.01; see generally 24 CFR 982.54). Therespondents moved pursuant to CPLR 3211 (a) (7) and 7804 (f) to dismiss the petition for failureto state a cause of action. The Supreme Court granted the motion, and we affirm.
On a motion to dismiss pursuant to CPLR 3211 and 7804 (f), all of the allegations of thepetition are deemed true and afforded the benefit of every favorable inference (see Matter of Bloodgood v Town ofHuntington, 58 AD3d 619, 621 [2009]; Matter of Long Is. Contractors' Assn. v Town of Riverhead, 17 AD3d590, 594 [2005]). Here, the petition failed to set forth allegations sufficient to make out aclaim that the respondents' termination of the petitioner's Section 8 voucher was "made inviolation of lawful procedure, was affected by an error of law or was arbitrary and capricious oran abuse of discretion" (CPLR 7803 [3]). Accordingly, the Supreme Court properly granted therespondents' motion pursuant to CPLR 3211 (a) (7) and 7804 (f) to dismiss the petition forfailure to state a cause of action. Rivera, J.P., Florio, Miller and Austin, JJ., concur.