The following e-filed documents, listed by NYSCEF document number (Motion 004) 26, 56, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 74, 75, 76, 77 were read on this motion for SUMMARY JUDGMENT. Plaintiff, the New York City Housing Authority, sued defendants, Ahzad Ali and Merle Ramyard, for allegedly failing to reimburse NYCHA for an overpayment of Section 8 subsidy payments made to defendants between August 1, 2014, and April 30, 2016. NYCHA moves under CPLR 3212 for summary judgment against both defendants. Ali opposes the motion. Ramyard has neither appeared nor filed any papers in this action. BACKGROUND Ali and Ramyard own an apartment in a building located at 206 Cornelia Street in Brooklyn. Defendants agreed with NYCHA that they would rent the apartment to a woman named Latisha Howell and that NYCHA would make monthly Section 8 housing-assistance payments to defendants on Howell’s behalf. In December 2013, Ali filed a holdover petition in Housing Court and obtained a judgment of possession. Howell was evicted in June 2014. NYCHA then contemplated terminating housing-assistant payments to defendants as of August 1, 2014. Instead NYCHA continued to make payments to defendants through April 30, 2016, totaling $28,476. (See NYSCEF No. 62 at 3 16; NYSCEF No. 71.) NYCHA now seeks to recover the $28,476 in Section 8 subsidies that NYCHA claims it overpaid defendants between August 2014 and April 2016. DISCUSSION I. The Branch of NYCHA’s Motion Seeking Summary Judgment as to Ali NYCHA has established prima facie that it overpaid Ali between August 2014 and April 2016 by subsidizing the rent of a tenant who had been evicted from the premises, and thus that Ali must return the overpayment. To defeat NYCHA’s summary-judgment motion, Ali is required to introduce evidence creating a material dispute of fact — not merely provide “unsubstantiated allegations or assertions.” (Zuckerman v. City of New York, 29 NY2d 557, 562 [1980].) Ali has not done so here. Ali asserts “on information and belie[f]” that Howell “ was let back into [the] apartment and remained there after being evicted by the city marshal.” (NYSCEF No. 74 at 1.) But he does not identify the source of his information on this point or the basis for his belief that the information is correct. Nor does Ali provide any evidence or supporting details — for example, how, why, or when Howell re-entered the apartment after being evicted, or for how long she remained there. Even if Howell did illicitly reoccupy Ali’s apartment after being evicted, that still would not establish that Ali would once again be entitled to receive Section 8 housing-assistance payments from NYCHA on Howell’s behalf. To the contrary, the applicable federal regulations provide that NYCHA was required to cease payments to Ali once Howell had been evicted — with no provision made for re-entry by Howell thereafter. (See 24 CFR 982.311 [b].) Ali also claims that NYCHA’s “EFT payment records are not proof that the monies were received by any defendant,” and that an issue of fact exists about “how much money was paid by NYCHA” and “what months that money was applied to.” (Id. at 1, 2.) But Ali has not provided any evidence that might contradict NYCHA’s payment records. Additionally, NYCHA has introduced evidence that it sent defendants one or more invoices in 2018 seeking repayment of a $28,476 Section 8 overpayment. (See NYSCEF No. 71.) Ali did not bring a CPLR article 78 proceeding to challenge NYCHA’s 2018 determination that it had made that overpayment, and the limitations period to do so has long since expired. Finally, Ali submits a December 2015 letter from NYCHA’s leasing department stating that Howell “has been approved for a transfer and issued a [Section 8] voucher to move” (NYSCEF No. 76) — implicitly suggesting that Howell was still living in the apartment as of December 2015. But this letter does not say that Howell was living in the apartment at that time, merely that she had obtained a voucher to move from there to another Section 8-eligible apartment. Nor, as discussed above, would the mere fact that Howell had resumed living in Ali’s apartment after her eviction entitle Ali again to receive Section 8 payments from NYCHA. II. The Branch of NYCHA’s Motion Seeking Summary Judgment as to Ramyard NYCHA also moves under CPLR 3212 for summary judgment against defendant Ramyard. But Ramyard never filed an answer or opposed the motion, and issue was never joined as to him. NYCHA therefore could not bring a motion for summary judgment against him. (See CPLR 3212 [a].) NYCHA’s summary-judgment motion is denied as to Ramyard. In these circumstances, the proper procedural course would have been to move for a default judgment against Ramyard under CPLR 3215. NYCHA did not, however, “take proceedings for the entry of judgment” against Ramyard “within one year after the default.”1 (CPLR 3215 [c].) Although NYCHA did file a motion for default judgment in this case, it was brought only as to Ali, not Ramyard. (See NYSCEF No. 16.) NYCHA’s claim against Ramyard is therefore subject to dismissal as abandoned, “unless sufficient cause is shown why the complaint should not be dismissed.” (CPLR 3215 [c].) NYCHA has not attempted to provide such cause. Accordingly, it is hereby ORDERED that the branch of NYCHA’s motion seeking summary judgment under CPLR 3212 as against Ahzad Ali is granted; and it is further ADJUDGED AND DECREED that NYCHA shall have judgment against Ali in the amount of $28,476.00 together with costs, disbursements, and interest from April 30, 2016; and it is further ORDERED that the branch of plaintiff’s motion seeking summary judgment under CPLR 3212 as against Merle Ramyard is denied; and it is further ORDERED that plaintiff’s complaint is dismissed as against Ramyard under CPLR 3215 (c); and it is further ORDERED that plaintiff shall serve a copy of this order with notice of its entry on all parties, on the office of the General Clerk, and on the office of the County Clerk, which shall enter judgment accordingly. Dated: June 24, 2020
