You are here: / / Mandamus to Compel Proceedings Properly Sought to Compel the NYC Housing...
, , ,

Mandamus to Compel Proceedings Properly Sought to Compel the NYC Housing Authority to Consider Requests for Increases in “Section 8” Rent Subsidies (A Ministerial Act), But a Particular Result Could Not Be Compelled (Because Exercise of Discretion Involved)

The First Department, in a full-fledged opinion by Justice Richter, determined that Article78/mandamus-to-compel proceedings were properly brought by owners of rental-properties against the NYC Housing Authority seeking rulings re: increased and suspended “Section 8” rent subsidies. The court held that the property-owners could compel the NYCHA to consider its requests (a ministerial act), but could not compel any specific result (an exercise of discretion).  The action was deemed timely because the NYCHA had never denied the requests, therefore the four-month statute never started running.  With respect increased subsidies, the court wrote:

An article 78 mandamus proceeding may be brought to compel an agency “to perform a duty enjoined upon it by law” (CPLR 7803[1]). It is well-settled that a mandamus to compel “applies only to acts that are ministerial in nature and not those that involve the exercise of discretion” … . Thus, “the petitioner must have a clear legal right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief” … .

Supreme Court properly found that the determination of the amount of any increase in the Section 8 subsidy is not purely ministerial but a matter entrusted to NYCHA’s discretion. An owner cannot receive a rent increase unless NYCHA first determines the reasonable rent (24 CFR 982.507[a][2][i]). In doing so, NYCHA is required to compare the unit’s rent to comparable unassisted units and must consider a myriad of discretionary factors, including location, quality, size, type and age of the unit, and any services, utilities and amenities provided (24 CFR 982.507[b]). Because the determination of the amount of any rental increase involves the exercise of discretion, it is not subject to mandamus. * * *

Although the eventual determination of reasonable rent will be the product of NYCHA’s judgment, the agency does not enjoy similar discretion to not make a decision at all on the rent increase requests. The applicable regulation, relied upon by NYCHA, provides that before any rent increase is allowed, NYCHA “must redetermine the reasonable rent” (24 CFR 982.507[a][2][i] [emphasis added]; see also 24 CFR 982.519[a] [under regulation relied upon by petitioners, NYCHA must annually adjust rent at owner’s request]). Upon the proper submission of a request for rent increase, NYCHA must process the request and come to a determination, whether adverse to petitioners’ position or not. NYCHA cannot leave petitioners in limbo, neither granting nor denying their requests, many of which have been pending for a significant amount of time. Thus, the petition states a claim for mandamus relief to the extent it seeks an order directing NYCHA to make a determination with respect to the rent increase requests … . Matter of Flosar Realty LLC v New York City Hous. Auth., 2015 NY Slip Op 01906, 1st Dept 3-10-15

 

You might also like
DEFENDANT COULD NOT SEEK INDEMNIFICATION FOR PLAINTIFF’S DAMAGES FROM THIRD-PARTY DEFENDANT BECAUSE PLAINTIFF WAS THE THIRD-PARTY DEFENDANT’S SPECIAL EMPLOYEE FOR WHOM WORKERS’ COMPENSATION WAS THE EXCLUSIVE REMEDY (FIRST DEPT).
ALTHOUGH THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF ON A SUBWAY FOR A TRANSIT VIOLATION, THE CONCURRENCE CALLED INTO QUESTION THE ‘TRANSIT DATABASE’ WHICH PROBABLY INCLUDES PERSONS WHOSE CRIMINAL CHARGES WERE SEALED AND DISMISSED, THE DATABASE DOES NOT PROVIDE A DISTINCT BASIS FOR ARREST (FIRST DEPT).
PRODUCTS LIABILITY ACTION AGAINST ELEVATOR MANUFACTURER SHOULD HAVE SURVIVED SUMMARY JUDGMENT, LABOR LAW 240(1) INAPPLICABLE TO ELEVATOR ACCIDENT.
THE PLEA ALLOCUTION DID NOT DEMONSTRATE DEFENDANT MADE AN INFORMED DECISION TO WAIVE A VIABLE INSANITY DEFENSE; THE FIRST DEPARTMENT VACATED THE PLEA AND DISMISSED THE INDICTMENT; DEFENDANT WAS RETURNED TO AN ASSISTED LIVING FACILITY UNDER A CIVIL GUARDIANSHIP ORDER (FIRST DEPT).
WAIVER OF APPEAL INVALID; DESCRIPTION OF THE EXTENT OF THE WAIVER WAS ERRONEOUS; NO ASSURANCE DEFENDANT WAS AWARE OF THE DIFFERENCE BETWEEN RIGHTS WAIVED BY GUILTY PLEA AND APPELLATE RIGHTS.
RESPONDENT CITY DID NOT DEMONSTRATE THE FOIL REQUEST WOULD INTERFERE WITH LAW ENFORCEMENT OR JUDICIAL PROCEEDINGS OR WOULD REVEAL A CONFIDENTIAL SOURCE; MATTER REMITTED FOR IN CAMERA REVIEW TO DETERMINE WHETHER THE FOIL REQUEST WAS PROTECTED BY THE INTER- OR INTRA- AGENCY MATERIALS EXEMPTION (FIRST DEPT).
DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION AND DID NOT DEMONSTRATE IT DID NOT HAVE KNOWLEDGE OF THE CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
THE SIX-MONTH GRACE PERIOD FOR FILING A NEW ACTION AFTER DISMISSAL (CPLR 205 (A)) DOES NOT APPLY IF THE UNDERLYING STATUTE OF LIMITATIONS FOR THE ACTION HAS NOT RUN; PLAINTIFF WAS FREE TO COMMENCE ANOTHER ACTION AFTER DISMISSAL ANYTIME WITHIN THE STATUTE-OF-LIMITATIONS PERIOD (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Rebuttal Evidence Re: a Defense that Was Not Asserted Should Not Have Been Allowed... Criteria for (Upward) Departure from the Risk Level Assessed by the Board of...