Davidson Heights LLC v. New York City Housing Authority (NYCHA) et al

Filing 19

OPINION AND ORDER re: 8 MOTION to Dismiss Complaint filed by John Rhea, New York City Housing Authority (NYCHA). For the reasons set forth above, Defendants' motion to dismiss is GRANTED. The Clerk of the Court is respectfully directed to terminate the motion (Doc. 8) and close the case. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 10/31/2014) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DAVIDSON HEIGHTS LLC,
:
:
Plaintiff,
:
:
- against :
:
NEW YORK CITY HOUSING AUTHORITY (NYCHA) :
and JOHN RHEA, as Chairman of NYCHA,
:
:
Defendants.
:
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OPINION AND ORDER
14 Civ. 930 (ER)

Ramos, D.J.:
Plaintiff Davidson Heights LLC (“Plaintiff” or “Davidson Heights”), the owner of a
building located at 1285 Shakespeare Avenue, Bronx, New York, brings this suit pursuant to 42
U.S.C. § 1983, alleging that the New York City Housing Authority (“NYCHA”) and John Rhea,
Chairman of NYCHA 1 (collectively, “Defendants”), violated its due process rights by failing to
pay monies purportedly owed for Plaintiff’s former tenant’s rent subsidies. In particular,
Plaintiff alleges that NYCHA failed to comply with the federal statute and regulations governing
the federal Section 8 housing program, as well as NYCHA’s own policies. Davidson Heights
also alleges that the non-payment of the housing subsidies constitutes unjust enrichment under
New York law. Pending before the Court is Defendants’ motion to dismiss the Complaint. Doc.
8. For the reasons set forth below, Defendants’ motion is GRANTED.

1

According to Defendants, John Rhea resigned as Chairman of NYCHA effective January 3, 2014. Defs. Mem. L.
1 n.1.

I.

Background
a. Factual Background
The following facts are based on the allegations in the Complaint, which the Court

accepts as true for purposes of the instant motion. See Koch v. Christie’s Int’l PLC, 699 F.3d
141, 145 (2d Cir. 2012).
Section 8 is a federal housing subsidy program for low income tenants of privatelyowned buildings that is administered by the United States Department of Housing and Urban
Development (“HUD”). Compl. ¶ 10. Defendant NYCHA is a local Public Housing Authority
charged with the administration of a program governed by Section 8 of the United States
Housing Act of 1937. Id. ¶¶ 7, 10. In this capacity, NYCHA oversees the administration of
92,000 housing vouchers in the City of New York. Id. ¶ 7. According to the Complaint, one
such voucher was issued to Maria Silverio (“Ms. Silverio”), Plaintiff’s former tenant. Id.
Under the Section 8 program, NYCHA enters into Housing Assistance Payment (“HAP”)
contracts with participating landlords, pursuant to which NYCHA provides payments directly to
landlords to subsidize the cost of housing for low-income tenants. Id. ¶ 11. In order for an
apartment to qualify as suitable under the Section 8 program, it must meet certain Housing
Quality Standards (“HQS”). Id. ¶ 15. Though the tenant is required to fix any damage he or she
causes, the landlord is otherwise responsible for maintaining the habitability of a Section 8
apartment. Id. ¶ 17.
As a Public Housing Authority, NYCHA must follow certain guidelines implemented by
HUD. Id. ¶ 9. In particular, NYCHA is required to conduct initial and annual inspections of
Section 8 apartments, as well as special or “complaint” inspections. Id. ¶ 18. Public Housing
Authorities are required to terminate program assistance to property owners who fail to correct
2

HQS deficiencies within specified time periods. Id. ¶ 22. If an HQS violation is issued, the
landlord has 24 hours to correct life-threatening conditions, and 30 days to correct other
conditions. Id. ¶ 23. NYCHA must then verify that HQS violations have been corrected through
either a re-inspection or the submission of a Certification of Completed Repairs signed by the
landlord and tenant. Id. ¶ 24. HAP contracts are automatically terminated 180 days after the last
subsidy payment to the landlord. Id. ¶ 27.
According to the Complaint, NYCHA failed to make housing subsidy payments to
Davidson Heights for the apartment formerly occupied by Ms. Silverio (the “Apartment”), which
is located at 1285 Shakespeare Avenue, Bronx, New York. Id. ¶ 41. Ms. Silverio was a
recipient of monthly Section 8 rental subsidies from NYCHA in the amount of $1,031.86. Id. ¶¶
42, 43. Total rent for the Apartment was $1,396.86. Id. ¶ 43.
On December 1, 2011, NYCHA performed an inspection of the Apartment without prior
notice to Davidson Heights. 2 Id. ¶¶ 46, 47. On December 5, 2011, Plaintiff received an HQS
violation for the Apartment. Id. ¶ 47. After it corrected the violation, Plaintiff and Ms. Silverio
signed a NYCHA Certification of Completed Repairs, which was then faxed to NYCHA on

2

The parties disagree as to when Davidson Heights became the landlord of the building for relevant purposes. The
1285 Shakespeare Avenue property was formerly owned by Adegboyega Otufale (“Mr. Otufale”). See Compl., Ex.
D. Plaintiff contends that Mr. Otufale had no interests in the rents or building as of November 7, 2011, the date on
which Mr. Otufale entered into a stipulation with Davidson Heights whereby, according to Plaintiff, Mr. Otufale
agreed that Plaintiff was entitled to all rents from the property and consented to the entry of foreclosure in favor of
Davidson Heights. Pl. Opp. Mem. L. 2, 6. Defendants claim that the November 7, 2011 stipulation does not address
the HAP contract for the Apartment that Mr. Otufale entered into with NYCHA in 2002 or any Section 8 subsidies
owed to him thereunder, and that Davidson Heights did not acquire any rights in the property until it received a
Referee’s Deed on July 23, 2012, after foreclosure and sale. Defs. Reply Mem. L. 2, 4. Consistent with the
Defendants’ account of the foreclosure proceedings, the Referee’s Deed provides that the referee therein granted and
conveyed all right, title, and interest in the property to Davidson Heights. See Declaration of Matthew Dineen In
Support of Defendants’ Motion to Dismiss (“Dineen Decl.”), Ex. 3. Defendants also point to NYCHA’s guidelines
for Section 8 vendor change submissions, which requires that limited liability corporations seeking to become
vendors of properties subject to Section 8 subsidies submit a copy of the recorded deed for the property, or an
original letter from the buyer’s attorney if the deed is unrecorded. Defs. Reply Mem. L. 4; see Pl. Opp., Ex. L. For
the purposes of today’s decision, the Court will, in accordance with Rule 12(b)(6), assume that Davidson Heights
was the landlord for events occurring on or after November 7, 2011.

3

January 15, 2012. Id. ¶¶ 49, 50. Contrary to HUD Guidelines and NYCHA policy, however,
NYCHA did not reinstate Section 8 payments for the Apartment. Id. ¶ 51. Beginning in
February 2012, NYCHA withheld the monthly payments on the basis of the December 2011
HQS and subsequent violations. Id. ¶ 44.
On May 8, 2012, NYCHA re-inspected the Apartment and issued a new HQS violation.
Id. ¶ 52. After it corrected this violation, Davidson Heights and Ms. Silverio executed another
certification, which Plaintiff faxed to NYCHA on May 25, 2012. Id. ¶ 54. Again, NYCHA did
not reinstate Section 8 payments. Id. ¶ 55. Plaintiff alleges that NYCHA has not re-inspected
the Apartment since May 2012. Id. ¶ 56. 3
In August 2012, without notice to Davidson Heights, 4 NYCHA issued a voucher to Ms.
Silverio that would allow for the transfer of her Section 8 assistance to a new property upon her
relocation from the Apartment. Id. ¶ 57. Plaintiff claims that this transfer voucher—which was
due to expire approximately 120 days from its issuance—was extended or reissued multiple
times. Id. ¶ 58.
In September 2012, Davidson Heights called NYCHA to inquire about the status of the
Section 8 subsidy payments. Id. ¶ 60. A NYCHA representative told Plaintiff that Ms.
Silverio’s move was pending; however, the representative did not know when the past-due
payments would be made. Id.

3

According to Defendants, however, NYCHA re-inspected the Apartment on June 13, 2012, and the Apartment
again failed inspection. Defs. Mem. L. 6. Defendants further contend that in July 2012, NYCHA mailed a notice to
Mr. Otufale advising that NYCHA had terminated the subsidies for the Apartment, effective June 30, 2012, based on
the expiration of the 180-day period following the final subsidy payment in December 2011. Id.

4

Defendants contend that Section 8, its implementing regulations, and the HAP contract do not require that a Public
Housing Authority provide notice to a landlord of its inspection of an apartment. Defs. Mem. L. 5. However,
NYCHA’s Inspection Process Overview, which is attached as an exhibit to the Complaint, states that NYCHA will
notify the tenant and the landlord of an inspection appointment at least two weeks in advance of the inspection date.
See Compl., Ex. B.

4

In October 2012, Davidson Heights commenced an eviction proceeding against Ms.
Silverio in Bronx County Housing Court. Id. ¶ 62. On February 27, 2013, Ms. Silverio and a
NYCHA representative appeared in court in connection with this proceeding. Id. ¶ 63. On that
date, Plaintiff and Ms. Silverio entered into a Stipulation of Settlement. Id.; see Compl., Ex. J. 5
Also in February 2013, counsel for Ms. Silverio confirmed that her move from the
Apartment was pending. Compl. ¶ 67. According to the Complaint, this was the first time
Davidson Heights received confirmation that NYCHA had issued a transfer voucher to Ms.
Silverio. Id. ¶ 68.
In February, May, and July 2013, Plaintiff again contacted NYCHA concerning the status
of the past-due payments. Id. ¶¶ 70-72. On each occasion, a NYCHA representative confirmed
that a transfer voucher had been issued to Ms. Silverio, and that her move was pending, but the
representative did not know when the Section 8 payments would be made. Id.
Ms. Silverio surrendered the Apartment on August 5, 2013. Id. ¶ 76. Plaintiff alleges
that NYCHA owes it $19,605.34, which represents the monthly subsidy payments for the period
February 2012 through August 2013. Id. ¶ 78. According to the Complaint, NYCHA did not
provide Davidson Heights with written notice that (i) the Section 8 payments had been
suspended, (ii) a transfer voucher was issued to Ms. Silverio, or (iii) NYCHA terminated the
HAP contract for the Apartment. Id. ¶ 61.

5

Pursuant to the Stipulation of Settlement, Ms. Silverio agreed to pay Davidson Heights her share of rent for
January and February 2013 on the date of the court proceeding, and the parties agreed to adjourn the matter for
possible settlement. Compl., Ex. J.

5

b. Procedural Background 6
Plaintiff commenced this action on February 13, 2014. Doc. 2. The Complaint alleges
three due process violations, respectively relating to NYCHA’s failure to (i) comply with its
policy for the correction of HQS violations; (ii) comply with its policy for the reinstatement of
Section 8 subsidy payments following the correction of HQS violations; and (iii) provide
Plaintiff with notice of, inter alia, the abatement of the subsidy payments in connection with Ms.
Silverio’s apartment. Plaintiff also brings a claim for unjust enrichment under New York state
law.
Pending before the Court is Defendants’ motion to dismiss the Complaint under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Defendants contend that the Complaint fails to
state a claim because Plaintiff has not alleged that it was party to a HAP contract with NYCHA
for the Apartment, and that, even if Plaintiff were a party to such a contract, the contract would
not confer a right entitled to protection under the Due Process Clause. Defendants further argue
that even if Plaintiff did enjoy such a right, an Article 78 proceeding provided Plaintiff with
adequate post-deprivation process. 7 Defendants also claim that the instant lawsuit is barred by
the doctrine of res judicata because Plaintiff commenced two Article 78 proceedings against
Defendants arising out of the same transactions, alleging the same harm, and seeking the same

6

According to Defendants, Plaintiff previously commenced two Article 78 proceedings against NYCHA in New
York Supreme Court, Bronx County. Defs. Mem. L. 6-7. On November 25, 2013, Justice Mark Friedlander
dismissed the first action, which was filed in December 2012, on standing and statute of limitations grounds. Id. at
7. On December 3, 2013, Justice Lucindo Suarez dismissed the second action, which was filed on September 19,
2013, for failure to comply with the statute of limitations for Article 78 proceedings. Id.

7

Defendants contend that the Complaint fails to state a claim for the further reasons that Davidson Heights has not
alleged that Defendants acted under color of state law, as required of a Section 1983 cause of action, and because
there is no private right of action under Section 8 of the Federal Housing Act or related regulations.

6

relief as in this litigation. Defendants contend that each Article 78 proceeding was dismissed on
the merits. 8
II.

Standard of Review
When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all

factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s
favor. Koch, 699 F.3d at 145; see also, e.g., Ruotolo v. City of New York, 514 F.3d 184, 188 (2d
Cir. 2008). However, the Court is not required to credit “mere conclusory statements” or
“threadbare recitals of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also id. at 681 (citing
Twombly, 550 U.S. at 551). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting
Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff
must allege sufficient facts to show “more than a sheer possibility that a defendant has acted
unlawfully.” Id. Federal Rule of Civil Procedure 8 “marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. If the
plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the]
complaint must be dismissed.” Twombly, 550 U.S. at 570.

8

Because of the Court’s conclusion that Plaintiff was afforded sufficient process through the Article 78 proceedings,
the Court need not consider whether the dismissals of those actions bar the instant action on res judicata grounds.

7

III.

Discussion
a. Section 1983 Due Process Claims
To state a claim under 42 U.S.C. § 1983, a defendant must have been acting under the

color of state law when he deprived the plaintiff of a constitutional or federal statutory right.
West v. Atkins, 487 U.S. 42, 48 (1986). Section 1983 does not create any rights, but merely
provides “a procedure for redress for the deprivation of rights [already] established.” Sykes v.
James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted). The Second Circuit has held that it is
“well settled in this Circuit that personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under section 1983.” Farrell v. Burke, 449
F.3d 470, 484 (2d Cir. 2006) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)) (internal
quotation marks omitted).
“The two threshold questions in any § 1983 claim for denial of procedural due process
are whether the plaintiff possessed a liberty or property interest protected by [federal or state
law] and, if so, what process was due before the plaintiff could be deprived of that interest.”
Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) (citations omitted). To possess a federally
protected property interest, a person must have a legitimate claim of entitlement to it. Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Such a claim does not arise from the
Constitution, but rather from an independent source such as state or local law. Id.; see also
Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 629 (2d Cir. 1996). “An
abstract need, desire or unilateral expectation is not enough.” Abramson v. Pataki, 278 F.3d 93,
99 (2d Cir. 2002) (citing Roth, 408 U.S. at 577).
Davidson Heights argues in opposition to the instant motion that it had a right entitled to
protection under the Due Process Clause based on its automatic assumption of the HAP contract
8

for the Apartment upon Plaintiff’s ownership of the 1285 Shakespeare Avenue building. Pl.
Opp. Mem. L. 3. However, Section 14 of Part B of the HAP contract Mr. Otufale executed for
the Apartment specifically states that the owner may not assign the HAP contract to a new owner
without NYCHA’s prior written consent. Dineen Decl., Ex. 2; 9 cf. Urban Developers LLC v.
City of Jackson, 468 F.3d 281, 297 (5th Cir. 2006) (concluding that plaintiff developer could not
assert breach of contract claim against Public Housing Authority because minutes of a Public
Housing Authority board of commissioners meeting did not reflect the commissioners’ approval
of the assignment of the HAP contracts in questions, and there was therefore insufficient
evidence of the valid assignment of the contracts); see also One & Ken Valley Hous. Grp. v.
Maine State Hous. Auth., No. 09 Civ. 642 (DBH), 2012 WL 1458202, at *3 n.2 (D. Me. Apr. 17,
2012), adopted by, 2012 WL 2962914 (D. Me. July 20, 2012), aff’d, 716 F.3d 218 (1st Cir.
2013), cert. denied, 134 S. Ct. 986 (2014) (stating that the plaintiff landlords, who were not party
to the original HAP contracts, became successors-in-interest to rights arising from the contracts
based on assignments approved by HUD and the Public Housing Authority). In opposition to the
instant motion, Davidson Heights cites a 2009 version of the form HAP contract for Section 8
properties, which provides, in accordance with Section 703(2) of the Protecting Tenants at
Foreclosure Act of 2009, that the immediate successor in interest pursuant to the foreclosure of
any property subject to Section 8 subsidies shall assume such interest subject to the HAP

9

Davidson Heights did not attach the HAP contract to the Complaint. However, because the Complaint is premised
on Plaintiff’s contentions that NYCHA failed to make required housing subsidy payments to Davidson Heights
pursuant to the contract and that the contract was not terminated, the contract is integral to the Complaint and the
Court will consider it in deciding the instant motion. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d
Cir. 2002) (noting that, in resolving a motion to dismiss, a court may consider any written instrument attached to the
complaint as an exhibit or any statements or documents incorporated in it by reference, and any document not
incorporated by reference where the complaint relies heavily upon its terms and effect, rendering the document
integral to the complaint).

9

contract between the prior owner and the Public Housing Authority. 10 Pl. Opp. Mem. L. 3; see
Pl. Opp., Ex. K. 11 Defendants argue in response that there was no HAP contract for the
Apartment at the time Davidson Heights became successor in interest to the 1285 Shakespeare
Avenue property pursuant to the Referee’s Deed because the contract had already been
terminated on June 30, 2012, upon the expiration of the 180-day period following the final
subsidy payment. Defs. Reply Mem. L. 4-5. In light of today’s dismissal on other grounds,
however, the Court need not decide whether Plaintiff had a valid HAP contract with NYCHA
during the relevant time period, or otherwise became a successor to such contract as a matter of
law upon its purchase of the building.
The Complaint is properly dismissed because, even assuming that Davidson Heights
possessed a property interest protected under the Due Process Clause as landlord of the
Apartment, it had an adequate post-deprivation proceeding for the alleged denial of that right. In
Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Supreme Court set forth a three-factor
balancing test for evaluating a procedural due process claim: (1) the private interest, (2) the risk
of an erroneous deprivation (and the value of additional safeguards), and (3) the government’s
interest. Courts in this Circuit that have analyzed due process claims relating to public
contractual rights under this framework have generally regarded post-deprivation proceedings as
a sufficient remedy for the alleged denial of such rights. For example, in S & D Maintenance
10

Plaintiff references the 2009 version of the form HAP contract only in opposition to the instant motion and it
therefore is not integral to the Complaint. However, even if Plaintiff was correct that it assumed its interest in the
1285 Shakespeare Avenue property subject to the HAP contract for the Apartment, this would not change the
Court’s conclusion that due process was satisfied by the availability of Article 78 proceedings.

11

In the Article 78 proceeding before the Honorable Mark Friedlander of the New York Supreme Court, Bronx
County, the court determined that Davidson Heights did not have standing to bring the action against NYCHA based
on Davidson Heights’ failure to produce (i) a HAP contract for the Apartment to which it was party; (ii) NYCHA’s
written consent to the assignment of Mr. Otufale’s HAP contract—which the court stated was required in order for
NYCHA to permit such assignment; or (iii) a vendor number demonstrating Davidson Heights’ participation in the
Section 8 program. See Dineen Decl., ¶ 20.

10

Co. v. Goldin, 844 F.2d 962, 966 (2d Cir. 1988), the Second Circuit noted that even if all public
contract rights warranted the procedural protection of due process, there would be a substantial
argument that in most circumstances post-deprivation state court remedies—such as Article 78
proceedings—would provide all the process that is due. In that case, the court upheld the grant
of summary judgment against the plaintiff contractor holding that it did not have a
constitutionally protected right to the continuation of its contract with the City of New York for
the maintenance of parking meters. Id. at 967. In reaching its conclusion, the Second Circuit
distinguished cases where due process is invoked to protect an ordinary contractual right from
those where procedural protection is sought in connection with a state’s revocation of a status,
i.e., “an estate within the public sphere characterized by a quality of extreme dependence in the
case of welfare benefits, or permanence in the case of tenure, or sometimes both, as frequently
occurs in the case of social security benefits.” Id. at 966; cf. Costello v. Town of Fairfield, 811
F.2d 782, 784 (2d Cir. 1987) (“A contract dispute [with the State] does not give rise to a cause of
action under section 1983.”); A.F.C. Enters., Inc. v. New York City Sch. Constr. Auth., No. CV98-4534 (CPS), 1999 WL 1417210, at *10 (E.D.N.Y. June 29, 1999) (stating that the Second
Circuit has repeatedly rejected attempts to expand simple contract disputes into federal
constitutional claims).
In 35-41 Clarkson LLC v. New York City Housing Authority, No. 11 Civ. 6770 (PKC),
2012 WL 5992094, at *1 (S.D.N.Y. Nov. 30, 2012), the court dismissed a putative class action
brought by landlords participating in the Section 8 program against NYCHA. As in this case, the
plaintiffs in 35-41 Clarkson claimed that NYCHA failed to comply with, inter alia, regulations
governing the Section 8 program as well as its own policies, and that such noncompliance
constituted a denial of their Fourteenth Amendment due process rights. Id. And as here, the
11

plaintiffs sought compensatory damages as well as equitable relief to remedy the alleged denial
of due process. There, the court noted that it was perhaps a close question as to whether the
landlords (who had entered into HAP contracts with NYCHA) adequately asserted a property
right capable of protection under the Due Process Clause. Id. at *3. Regardless, the court held
that post-deprivation state court remedies provide a sufficient process for the denial of the
property interests conferred by the public contracts at issue there. Id. at *5 (“This proposition is
supported by the Mathews factors as well as relevant Supreme Court and Second Circuit case
law, and it is therefore adopted on the facts of this case.”). In reaching this conclusion, the court
found that review of the plaintiffs’ contentions pursuant to an Article 78 proceeding
encompassed the landlords’ claims, which included allegations that NYCHA failed to resume
subsidy payments following the identification of an HQS violation. Id. at *6; 12 cf. Campo v.
New York City Employees’ Ret. Sys., 843 F.2d 96, 103 (2d Cir. 1988), cert. denied, 488 U.S. 889
(1988) (holding that the widow of a former city employee was not entitled to pre-deprivation
hearing in connection with the pension fund defendant’s failure to pay survivor benefits); Sbarra
v. Port Auth., No. 10 Civ. 8580 (CM), 2011 WL 4344078, at *15 (S.D.N.Y. Sept. 9, 2011)
(granting motion to dismiss a due process claim brought by Port Authority Police Department
officers involving allegations that the Port Authority improperly altered the method by which
their compensation was calculated; the court noted that the plaintiffs at most alleged a breach of
their employment contract, and therefore the claim was “no more than a state law breach of
contract action dressed up in federal clothes”); Licopoli v. Mineola Union Free Sch. Dist., No. 09

12
In 35-41 Clarkson, the court also noted that the plaintiff landlords could also have brought a breach of contract
action, and therefore that their remedies in state court may not have been limited to an Article 78 proceeding. 2012
WL 5992094, at *7. The court did not take a position on the merits of such an action, however, and instead
concluded that due process was satisfied on the availability of the Article 78 proceeding alone. Id.

12

Civ. 3974 (DRH) (AKT), 2010 WL 4961667, at *12 (E.D.N.Y. Dec. 1, 2010) (granting motion
to dismiss on the basis that even if the school superintendent plaintiff had a protectable property
interest in an annual merit increase provided for by contract, post-deprivation remedies including
a state law contract claim and an Article 78 proceeding were adequate).
Davidson Heights has not identified any case law for the proposition that landlords who
enter HAP contracts with Public Housing Authorities such as NYCHA are entitled to anything
more than post-deprivation proceedings in connection with the alleged denial of rights relating to
Section 8 assistance. 13 Instead, Plaintiff claims that Article 78 proceedings do not satisfy due
process because landlords are “required to accept NYCHA Section 8 and may not opt out of
Section 8.” Pl. Opp. Mem. L. 8. Davidson Heights has not offered any support for this
argument, however. And as Defendants note, it is well-settled that the availability of an Article
78 proceeding to review, challenge, or compel agency actions fully satisfies due process
requirements in cases such as this. Defs. Mem. L. 14. Accordingly, as in 35-41 Clarkson—
again, where the existence of the landlords’ contracts with NYCHA was not in dispute—the
Court finds that the post-deprivation remedies afforded to Plaintiff were sufficient as a matter of
law. 14 Defendants’ motion to dismiss the due process claims is therefore GRANTED. 15

13

The only case Plaintiff cites involving a due process claim related to Section 8 assistance is McNeill v. New York
City Housing Authority, 719 F. Supp. 233 (S.D.N.Y. 1989). There, the court held that tenants had standing to assert
Section 1983 claims against NYCHA relating to its policies and practices concerning the suspension and termination
of assistance. Id. at 245. However, McNeill is not relevant here because it did not involve the landlord’s purported
property interest in receiving rental subsidies pursuant to a HAP contract, but instead the tenants’ interest in federal
housing benefits.

14

Defendants contend that Plaintiff’s federal causes of action are deficient for the further reason that there is no
private right of action under Section 8 of the Housing Act or its implementing regulations. Indeed, courts in this
Circuit have dismissed claims relating to Section 8 subsidy payments on this basis. See, e.g., 35-41 Clarkson, 2012
WL 5992094, at *8-9 (finding no express or implied private right of action for landlords to allege claims based upon
NYCHA’s alleged violations of 42 U.S.C. § 1437f and 24 C.F.R. Part 982); Renaissance Equity Holdings LLC v.
Donovan, No. 12-CV-1639 (FB) (SMG), 2013 WL 2237547, at *5 (E.D.N.Y. May 21, 2013) (dismissing complaint
involving allegations of untimely notification of HQS violations and related non-payment of Section 8 rental
subsidies to property owner plaintiffs because the Housing Act does not provide a private right of action). However,

13