author: Stein, J. Fahey, J.

text:
    [33 NE3d 471, 11 NYS3d 515]
    In the Matter of Tayinha Banos, Respondent, v John Rhea, as Chairperson of the New York City Housing Authority, et al., Appellants, et al., Respondent. In the Matter of Viola Dial, Respondent, v John Rhea, as Chairman of the New York City Housing Authority, Appellant, and 690 Gates, LP, Respondent.
    Argued March 24, 2015;
    decided May 12, 2015

      POINTS OF COUNSEL

      David I. Farber, General Counsel, New York City Housing Authority, New York City (Melissa R. Renwick, Kelly D. Mac-Neal, Nancy M. Harnett, Corina L. Leske, Maria Termini and Andrew M. Lupin of counsel), for appellants in the first above-entitled proceeding.
    I. The majority erred in failing to dismiss this proceeding as barred by the statute of limitations. (Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30; New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194; Solnick v Whalen, 49 NY2d 224; United States v International Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 998 F2d 1101; Equal Empl. Opportunity Commn. v New York Times Co., 196 F3d 72; United States v Local 359, United Seafood Workers, 55 F3d 64; Consedine v Portville Cent. School Dist., 12 NY3d 286; Matter of Parks v New York City Hous. Auth., 100 AD3d 407; Matter of Lopez v New York City Hous. Auth., 30 Misc 3d 1237[A], 2011 NY Slip Op 50390[U], 93 AD3d 448; Matter of Fernández v NYCHA Law Dept., 284 AD2d 202.) II. The majority erred in considering the merits of a time-barred claim. (Zumpano v Quinn, 6 NY3d 666; Matter of Thorton v New York City Hous. Auth., 100 AD3d 556; Matter of Saunders v Rhea, 92 AD3d 602; Matter of M & D Contrs. v New York City Dept. of Health, 233 AD2d 230; Matter of Fair v Finkel, 284 AD2d 126; Matter of Robinson v Martinez, 308 AD2d 355.)

      Seymour W. James, Jr., The Legal Aid Society, Brooklyn (Kathleen Brennan, Ferdinand Ubozoh and Stephen Myers of counsel), for Tayinha Banos, respondent in the first above-entitled proceeding.
    I. Service of the warning notice and the notice of termination (T-l) are mandatory conditions precedent to service of the notice of default (T-3) and the statute of limitations cannot begin to run unless the New York City Housing Authority has made proper service of all three notices. (Doe v Pataki, 481 F3d 69; United States ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v Westchester County, N.Y., 712 F3d 761; Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446; Alshawhati v Zandani, 82 AD3d 805; Sutton v East Riv. Sav. Bank, 55 NY2d 550; Indovision Enterprizes v Cardinal Export Corp., 44 AD2d 228, 36 NY2d 811; Tougher Heating & Plumbing Co. v State of New York, 73 AD2d 732; Matter of Fox Ridge Motor Inn, Inc. v Town of Southeast, N.Y., 85 AD3d 785; Williams v New York City Hous. Auth., 975 F Supp 317; Matter of Fair v Finkel, 284 AD2d 126.) II. The Appellate Division could have affirmed the denial of the motion to dismiss on the ground that the New York City Housing Authority failed to establish that it made proper service of the T-3 even if the Court had not held that the statute of limitations was not triggered due to the Authority’s failure to satisfy the condition precedent. (Swift v New York Med. Coll., 25 AD3d 686; Fleetwood Agency, Inc. v Verde Elec. Corp., 85 AD3d 850; Cimino v Dembeck, 61 AD3d 802; Sabadie v Burke, 47 AD3d 913; Cron v Hargro Fabrics, 91 NY2d 362; Benn v Benn, 82 AD3d 548; Engel v Lichterman, 95 AD2d 536, 62 NY2d 943; Azriliant v Eagle Chase Assoc., 213 AD2d 573; Matter of Colyar [New York Tel. Co.—Roberts], 129 AD2d 946; Nassau Ins. Co. v Murray, 46 NY2d 828.) III. The Appellate Division, Second Department, correctly refused to follow the holding of the Appellate Division, First Department, in Matter of Lopez v New York City Hous. Auth. (93 AD3d 448 [2012]), as well as those cases that hold that the statute of limitations begins to run when a party knew or should have known of the administrative determination. (Matter of ISCA Enters. v City of New York, 77 NY2d 688, 78 NY2d 952, 503 US 906; 90-92 Wadsworth Ave. Tenants Assn. v City of N.Y. Dept. of Hous. Preserv. & Dev., 227 AD2d 331; McComb v Town of Greenville, 163 AD2d 369; Matter of Riverkeeper, Inc. v Crotty, 28 AD3d 957; Matter of Shamblee v Rhea, 110 AD3d 443; Matter of Kaufman v Anker, 66 AD2d 851; Matter of Munice v Board of Examiners of Bd. of Educ. of City of N.Y., 31 NY2d 683; Matter of Goldstein v Niagara Falls Mem. Med. Ctr., 143 AD2d 515; Matter of Castaways Motel v Schuyler, 24 NY2d 120; Matter of Reynolds v Dustman, 1 NY3d 559.) IV. Contrary to appellant’s assertion, the court below denied appellant’s motion to dismiss on the ground that the proceeding is time-barred and did not make a determination on the merits. (Matter of Dial v Rhea, 111 AD3d 720; Azriliant v Eagle Chase Assoc., 213 AD2d 573; People v Ortega, 15 NY3d 610.)

      David I. Farber, General Counsel, New York City Housing Authority, New York City (Melissa R. Renwick, Kelly D. Mac-Neal, Nancy M. Harnett and Corina L. Leske of counsel), for appellant in the second above-entitled proceeding.
    I. The Second Department erred in failing to dismiss this proceeding as barred by the statute of limitations. (Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30; New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194; Solnick v Whalen, 49 NY2d 224; United States v International Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 998 F2d 1101; Equal Empl. Opportunity Commn. v New York Times Co., 196 F3d 72; United States v Local 359, United Seafood Workers, 55 F3d 64; Consedine v Portville Cent. School Dist., 12 NY3d 286; Nassau Ins. Co. v Murray, 46 NY2d 828; Northern v Hernandez, 17 AD3d 285; Matter of Rodriguez v Wing, 251 AD2d 335.) II. The Second Department erred in considering the merits of a time-barred claim. (Zumpano v Quinn, 6 NY3d 666; Matter of Thorton v New York City Hous. Auth., 100 AD3d 556; Matter of Saunders v Rhea, 92 AD3d 602; Matter of M & D Contrs. v New York City Dept. of Health, 233 AD2d 230; Matter of Quesada v Hernandez, 5 Misc 3d 1028[A], 2004 NY Slip Op 51597[U]; Matter of Parks v New York City Hous. Auth., 100 AD3d 407; Matter of Lopez v New York City Hous. Auth., 93 AD3d 448; Matter of Fernández v NYCHA Law Dept., 284 AD2d 202.) III. The Second Department erred in not affording the New York City Housing Authority an opportunity to answer. (Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100; Matter of Wood v Glass, 226 AD2d 387; Matter of Charter Private Line v Board of Educ. of City of N.Y., 182 AD2d 758; Matter of Parks v New York City Hous. Auth., 100 AD3d 407; Matter of Lopez v New York City Hous. Auth., 93 AD3d 448; Matter of Fernández v NYCHA Law Dept., 284 AD2d 202.) IV. The Second Department erred in ordering the New York City Housing Authority to make retroactive subsidy payments.

      South Brooklyn Legal Services, Inc., Brooklyn (.Michael Weisberg of counsel), for Viola Dial, respondent in the second above-entitled proceeding.
    I. The statute of limitations to challenge termination of the Section 8 subsidy does not begin to run until New York City Housing Authority complies with each of the conditions precedent required by the Williams consent judgment. (Matter of Fox Ridge Motor Inn, Inc. v Town of Southeast, N.Y., 85 AD3d 785; Indovision Enterprizes v Cardinal Export Corp., 44 AD2d 228, 36 NY2d 811; Williams v New York City Hous. Auth., 975 F Supp 317; Matter of Fair v Finkel, 284 AD2d 126; Anderson v Yungkau, 329 US 482; Matter of Quesada v Hernandez, 5 Misc 3d 1028[A], 2004 NY Slip Op 51597[U]; Matter of Reynolds v Dustman, 1 NY3d 559; Funk v Barry, 89 NY2d 364; Redeemed Christian Church of God Tabernacle of Restoration v Green, 62 AD3d 601; Citibank v Velazquez, 284 AD2d 364.) II. The Appellate Division correctly refused to follow the line of cases holding that the statute of limitations begins to run when a party knew or should have known of the decision being appealed; those cases are distinguishable. (Matter of ISCA Enters, v City of New York, 77 NY2d 688, 78 NY2d 952, 503 US 906; 90-92 Wadsworth Ave. Tenants Assn. v City of N.Y. Dept. of Hous. Preserv. & Dev., 227 AD2d 331; McComb v Town of Greenville, 163 AD2d 369; Matter of Riverkeeper, Inc. v Crotty, 28 AD3d 957; Matter of Shamblee v Rhea, 110 AD3d 443; Matter of Kaufman v Anker, 66 AD2d 851; Matter of Mu-nice v Board of Examiners of Bd. of Educ. of City of N.Y., 31 NY2d 683; Matter of Goldstein v Niagara Falls Mem. Med. Ctr., 143 AD2d 515; Matter of Castaways Motel v Schuyler, 24 NY2d 120.) III. The Appellate Division did not improperly deny New York City Housing Authority an opportunity to answer because the procedural aspects of this matter are inextricably intertwined with the issue to be decided. (Matter of Crooms v Corriero, 206 AD2d 275; Rivers v Rhea, 2010 NY Slip Op 31894[U]; Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100; Matter of Banos v Rhea, 111 AD3d 707.)

      Robert H. Gordon, New York City, for 690 Gates, LP, respondent in the second above-entitled proceeding.
    I. The statute of limitations did not run because New York City Housing Authority failed to prove it served the T-3 notice. (Williams v New York City Hous. Auth., 975 F Supp 317; City of New York v State of New York, 40 NY2d 659; Gardam & Son v Batterson, 198 NY 175; L.Z.R. Raphaely Galleries v Lumbermens Mut. Cas. Co., 191 AD2d 680; Nassau Ins. Co. v Murray, 46 NY2d 828; Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373; Matter of Government Empls. Ins. Co. [Hartford Ins. Co.], 112 AD2d 226; Sea Ins. Co. v Kopsky, 137 AD2d 804; Matter of Colyar [New York Tel. Co.—Roberts], 129 AD2d 946; Matter of Szaro v New York State Div. of Hous. & Community Renewal, 13 AD3d 93.) II. The courts below correctly found that the statute of limitations runs when New York City Housing Authority satisfies the conditions precedent for a final and binding determination. (Consedine v Portville Cent. School Dist., 12 NY3d 286; South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272; Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63 NY2d 396; Matter of Green v Hernandez, 6 Misc 3d 1041 [A], 2005 NY Slip Op 50388 [U]; Matter of Matos v Hernandez, 10 Misc 3d 1068[A], 2005 NY Slip Op 52188[U]; Matter of Lopez v New York City Hous. Auth., 93 AD3d 448; Matter of Parks v New York City Hous. Auth., 100 AD3d 407; Matter of Cole v New York City Hous. Auth., 2013 NY Slip Op 33284[U].) III. New York City Housing Authority’s argument that the statute of limitations runs when a tenant knows of a determination is a direct violation of the Williams first partial consent judgment. (Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62; Matter of Bianca v Frank, 43 NY2d 168; Raschel v Risk, 69 NY2d 694.) IV. New York City Housing Authority’s other arguments are without merit. V. The courts properly exercised their discretion to not allow New York City Housing Authority to file an answer under the facts of this case. (Matter of Adamag Realty Corp. v Diamante, 254 AD2d 413; Matter of Crooms v Corriero, 206 AD2d 275.)
   OPINION OF THE COURT

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 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 proved 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.

L

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., US 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 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-l 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-l 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-l 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 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 NY-CHA and its then-Chair, John Rhea (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-l 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 [2d Dept 2013]). Agreeing that the record failed to show that NYCHA mailed the warning letter and the T-l 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 (2014 NY Slip Op 67900 [U] [2d Dept 2014]).

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-l letter or T-3 letter. However, Dial’s landlord, respondent 690 Gates, LP, 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 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-l 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 [2d Dept 2013]). Finding that NYCHA failed to show that it mailed two of the three notices (the warning letter and T-l letter), the 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 (2014 NY Slip Op 70575[U] [2d Dept 2014]).

IL

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 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 [2d 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.

NYCHA contends that the plain language of paragraph 22 (f) states that a determination is final and binding upon the tenant’s receipt of the T-3 letter, without any mention of the warning letter or T-l 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 para 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-l letter] shall be sent to the participant by certified mail with a copy by regular mail.” Paragraph 3 (b) also sets forth the information that must be included in the T-l 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 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 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 NY-CHA 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 of limitations purposes. 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.

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 Fernández v NYCHA Law Dept., 284 AD2d 202, 202 [1st Dept 2001]). While this rule may result in the dismissal of petitions for some 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.

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 day 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 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, 1084-1085 [2d 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-l 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.

Accordingly, in each case, the order of the Appellate Division should be reversed, without costs, and NYCHA’s motion to dismiss the petition as time-barred granted. In Matter of Ba-nos, we answer the certified question in the negative and, in Matter of Dial, it is unnecessary for us to answer the certified question.

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. (US 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 Rhea 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 Court granting the petition and remitting to that court for further proceedings, and otherwise affirm.

L

“Under the Section 8 program, 42 U.S.C. § 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. The 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, 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-l 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]).

IL

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 NY-CHA 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-l 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 Ba-nos’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 NY-CHA breached the consent judgment inasmuch as it failed to send Banos a warning letter and a T-l letter and thus did not trigger the applicable statute of limitations. On appeal, with one Justice 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 NY-CHA 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 NY-CHA leave to appeal and certified the question whether its order was properly made (2014 NY Slip Op 67900 [U] [2d Dept 2014]).

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. 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 October 2007. Again in lieu of answering, NYCHA “cross-moved” for an order dismissing the petition as time-barred (see CPLR 217 [1]; 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 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 (2014 NY Slip Op 70575[U] [2d Dept 2014]).

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 [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-l, 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] 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 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 (US 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-l 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-l letters, triggers the 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 consent judgment para 3 [b], [e]; cf. para 1). 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 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 IV2 years (Banos) and approximately 3V2 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 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 NY-CHA 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-l 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 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.

In Matter of Banos v Rhea: 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 AbdusSalaam concur; Judge Fahey dissents in an opinion in which Chief Judge Lippman and Judge Rivera concur.

In Matter of Dial v Rhea: 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 AbdusSalaam concur; Judge Fahey dissents in an opinion in which Chief Judge Lippman and Judge Rivera concur.

      . Rhea is NYCHA’s former Chair; Shola Olatoye is the current Chair.

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

      . 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]).

      . 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 281). 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.

      . 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.

      . 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.

      . Rhea was sued in both proceedings in his capacity as Chairman of NY-CHA. 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.

      . 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).


source: Caselaw Access Project

author: Fahey, J. Chief Judge Lippman

license: Public Domain

text:
    [33 NE3d 485, 11 NYS3d 529]
    In the Matter of Luther Dempsey, Appellant, v New York City Department of Education et al., Respondents.
    Argued March 24, 2015;
    decided May 12, 2015

      POINTS OF COUNSEL

      South Brooklyn Legal Services, Brooklyn (.Nicole Salk of counsel), for appellant.
    I. The Appellate Division majority opinion misinterprets Matter of Acosta v New York City Dept. of Educ. (16 NY3d 309 [2011]) and conflicts with its other recent decisions interpreting Correction Law § 753. (Matter of Dellaporte v New York City Dept. of Bldgs., 106 AD3d 446; Matter of Marra v City of White Plains, 96 AD2d 17; Matter of Donovan v LiMandri, 107 AD3d 590; Matter of Robles v LiMandri, 107 AD3d 592; Matter of Nuziale v LiMandri, 107 AD3d 593; Matter of Gil v New York City Dept. of Bldgs., 107 AD3d 632.) II. The New York City Department of Education’s denial of petitioner’s certification was arbitrary and capricious because it considered only petitioner’s criminal record. (Matter of Acosta v New York City Dept. of Educ., 62 AD3d 455, 16 NY3d 309; Matter of Marra v City of White Plains, 96 AD2d 17; Peluso v

      Smith, 142 Misc 2d 642; Matter of Bonacorsa v Van Lindt, 71 NY2d 605; Matter of Soto v New York State Off. of Mental Retardation & Dev. Disabilities, 26 Misc 3d 1215[A], 2010 NY Slip Op 50103 [U]; Matter of City of New York v New York City Civ. Serv. Commn., 30 AD3d 227; Matter of City of New York v City Civ. Serv. Commn., 141 Misc 2d 276; Matter of Greenberg v Wrynn, 86 AD3d 437; Matter of AAA Carting & Rubbish Removal, Inc. v Town of Southeast, 17 NY3d 136; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588.) III. Respondent New York City Department of Education’s decision to reject petitioner Luther Dempsey’s application was arbitrary and capricious and violated Executive Law § 296 (15) and Administrative Code of the City of New York § 8-107 (10).

      Zachary W. Carter, Corporation Counsel, New York City (Karen M. Griffin, Richard Dearing and Francis F. Caputo of counsel), for respondents.
    I. The New York City Department of Education (DOE) reasonably denied Luther Dempsey’s application for certification to drive a DOE school bus based on his long history of drug-related criminal activity. (Matter of Bonacorsa v Van Lindt, 71 NY2d 605; Matter of Arrocha v Board of Educ. of City of N.Y., 93 NY2d 361; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Acosta v New York City Dept. of Educ., 16 NY3d 309; Matter of Soto v New York State Off. of Mental Retardation & Dev. Disabilities, 26 Misc 3d 1215[A], 2010 NY Slip Op 50103[U]; Matter of Dellaporte v New York City Dept. of Bldgs., 106 AD3d 446, 22 NY3d 1121; Matter of Donovan v LiMandri, 107 AD3d 590.) II. Luther Dempsey’s Human Rights Law claims fail because they are not properly preserved and, in any event, the New York City Department of Education did not violate the State or City Human Rights Laws. (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Mixon v TBV, Inc., 76 AD3d 144; Hecht v City of New York, 60 NY2d 57; Sega v State of New York, 60 NY2d 183.)

      Judith M. Whiting, General Counsel, Community Service Society of New York, New York City (Paul Keefe of counsel), for Community Service Society of New York and others, amici curiae.
    I. Agencies bear the burden of demonstrating that an adverse employment action based on a criminal conviction meets an exception to Correction Law article 23-A. (Matter of Bonacorsa v Van Lindt, 71 NY2d 605; Matter of Soto v New York State Off. of Mental Retardation & Dev. Disabilities, 26 Misc 3d 1215[A], 2010 NY Slip Op 50103[U]; Matter of Marra v City of White Plains, 96 AD2d 17; Matter of Exum v New York City Health & Hosps. Corp., 37 Misc 3d 1218[A], 2012 NY Slip Op 52078 [U]; Matter of Al Turi Landfill v New York State Dept. of Envtl. Conservation, 98 NY2d 758; Matter of Malverty v Waterfront Commn. of N.Y. Harbor, 71 NY2d 977; Matter of El v New York City Dept. of Educ., 23 Misc 3d 1121 [A], 2009 NY Slip Op 50883 [U]; Matter of Acosta v New York City Dept. of Educ., 16 NY3d 309; Matter of AAA Carting & Rubbish Removal, Inc. v Town of Southeast, 17 NY3d 136; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588.) II. Criminology research provides a way to judge the rationality of an agency’s decision and shows that Luther Dempsey poses a low risk of recidivism.
   OPINION OF THE COURT

Fahey, J.

In this CPLR article 78 proceeding, we hold that the respondent agency’s denial of petitioner’s application for certification as a school bus driver was not arbitrary and capricious. We conclude that Matter of Acosta v New York City Dept. of Educ. (16 NY3d 309 [2011]), on which petitioner relies, is distinguishable.

L

Petitioner Luther Dempsey applied to the New York City Department of Education (DOE) in 2006 for certification as a school bus driver. He indicated that he had been employed for about two years by a private bus company, transporting preschool children. On his application, petitioner disclosed that he had been convicted of crimes. In all, he had been convicted of two drug-related felonies (criminal possession of a controlled substance in the fifth degree and attempted criminal sale of a controlled substance in the third degree) in 1990, as well as three theft-related misdemeanors, the most recent in 1993, when petitioner was 41 years old. Petitioner explained that his criminal history was related to a past drug addiction, which he had overcome in the mid-1990s through a drug treatment program.

In July 2006, the DOE denied petitioner’s application. In a letter to the bus company employing petitioner, a DOE executive stated that the reason for the denial was that petitioner had been “convicted of an offense that rendered] [him] unsuitable to perform duties associated with the transportation of school age children.” As a result of petitioner’s failure to receive certification, the bus company terminated petitioner’s employment.

Petitioner and other individuals who had been denied certification by the DOE based on criminal convictions commenced a proceeding pursuant to CPLR article 78 challenging the denials. Supreme Court dismissed the proceeding. However, the Appellate Division modified Supreme Court’s judgment, granted the petition to the extent of annulling the DOE’s determinations, and remitted to the DOE, “to give petitioners an opportunity to review the information upon which DOE’s determinations were based and to submit statements and documents pursuant to Chancellor’s Regulation C-105” (Matter of Hasberry v New York City Dept. of Educ., 78 AD3d 609, 609 [1st Dept 2010]). That DOE regulation provides, in pertinent part, that

“[i]f, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with [DOE’s Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information” (New York City Department of Education, Regulation of the Chancellor C-105 § 2 at 4).

Petitioner then submitted various documents to the DOE. He sent several letters from representatives of bus companies for which he had worked, including his most recent employer, as well as a letter from a manager at a facility where he had worked as a security officer; all of the letters described him as a reliable and responsible employee. He also submitted a certificate of relief from disabilities with respect to his felonies, which had been issued by Supreme Court in 2002.

In March 2011, after interviewing petitioner, the DOE again denied his application. Petitioner sought a “[w]ritten statement upon denial of license or employment,” pursuant to Correction Law § 754. The Executive Director of the DOE’s Office of Pupil Transportation (OPT), in a May 4, 2011 letter setting forth the reasons for the denial, explained that petitioner was “unsuitable for [DOE] certification of approval for school bus service and the resultant close supervision of school children in the relative [sic] unsupervised environment of a school bus,” in light of certain factors, including “the bearing that the particular criminal offense (s) for which the person was previously convicted will have on his/her fitness and/or ability to perform school bus duties and responsibilities safe[l]y and reliably,” “the mature age of the person at the time of some of the offenses,” “the seriousness of the particular offense(s),” and “the interests and direct role of the [DOE] to protect the safety and welfare of school children, parents and school employees.”

IL

Petitioner commenced this CPLR article 78 proceeding against the DOE and its Chancellor in July 2011, contending that the DOE’s determination denying his application for certification was arbitrary and capricious. Petitioner alleged that DOE had violated Correction Law §§ 752 and 753, Executive Law § 296 (15), and Administrative Code of the City of New York § 8-107 (10). He sought annulment of the determination, declaratory judgment, and an order directing the DOE to approve his application, as well as damages.

In its answer, the DOE denied petitioner’s allegations, and explained its denial of petitioner’s application with reference to his “very long record of criminal behavior.” In an affidavit, the OPT’s Executive Director detailed the reasons for the decision to deny petitioner’s renewed application, including petitioner’s criminal convictions, a gap in his employment history, and his age at the time of his last conviction. The Executive Director stated that he had concluded that “ [petitioner would pose an unreasonable risk to the safety and welfare of the young children with whom he would come into contact.” For his part, the DOE executive who had denied petitioner’s original application stated in an affidavit that it had been “of great concern” to him that petitioner had committed the drug-related felonies and the 1993 misdemeanor “as a mature adult,” explaining that while “[s]uch a serious error in judgment could possibly be excused were it the result of a youthful indiscretion,” it was of greater significance that petitioner had shown “such poor judgment and control at the age of 41.”

Supreme Court granted the petition to the extent of annulling DOE’s determination, ordered the DOE to approve petitioner’s application, and remanded. Supreme Court concluded that the DOE had

“failed to consider all eight factors as set forth in section 753 of the Correction Law. . . . Respondent only considered petitioner’s criminal history when reviewing his application and failed to consider his extensive evidence of rehabilitation. Petitioner’s last conviction was eighteen years ago and he obtained a certificate of relief from disabilities” (2012 NY Slip Op 30552[U], *4 [Sup Ct, NY County 2012]).

The Appellate Division reversed Supreme Court’s judgment, denied the petition, and dismissed the proceeding (108 AD3d 454 [1st Dept 2013]). The Appellate Division held that

“[t]he DOE’s May 4, 2011 determination that petitioner’s prior drug-related convictions as an adult bore on his fitness and/or ability to perform his school bus duties was rationally based, and it shows DOE gave due consideration to the relevant factors under Correction Law § 753 before denying his application. Although petitioner avers he has been drug free since 1994, and his crimes were directly related to his drug addiction at the time, the offenses were not youthful indiscretions (he was 41 years old), but were of a serious nature since each involved narcotics” (id. at 456).

The Appellate Division concluded that Supreme Court had “improperly reweighed the factors set forth in the Correction Law and substituted its own judgment. The nature of the criminal conduct for which petitioner was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities” of a school bus driver (id. [citations omitted]).

One Justice dissented, noting that the DOE’s May 4, 2011 letter

“made no reference to the time that had elapsed since the last conviction (now 20 years), petitioner’s lengthy experience successfully driving school buses with the very same children or type of children he would be driving and supervising were the license granted, or the extensive evidence of complete rehabilitation that petitioner furnished” (108 AD3d at 460 [Freedman, J., dissenting]).

The dissenting Justice would have held that DOE’s determination was arbitrary and capricious.

The Appellate Division granted petitioner leave to appeal to this Court, certifying the question whether its order was properly made. We now affirm.

IIL

Article 23-A of the Correction Law protects persons who seek employment, after having been convicted of one or more criminal offenses, from unfair discrimination. It is impermissible for a public agency or private employer to deny a license or employment application “by reason of the individual’s having been previously convicted of one or more criminal offenses” (Correction Law § 752), unless one of two exceptions applies. An application for a license or employment may be denied on the ground of past criminal history if

“(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or
“(2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public” (Correction Law § 752).

The Correction Law sets out eight factors that a public agency or private employer must consider when deciding whether one of the section 752 exceptions applies:

“(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
“(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.
“(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his [or her] fitness or ability to perform one or more such duties or responsibilities.
“(d) The time which has elapsed since the occurrence of the criminal offense or offenses.
“(e) The age of the person at the time of occurrence of the criminal offense or offenses.
“(f) The seriousness of the offense or offenses.
“(g) Any information produced by the person, or produced on his [or her] behalf, in regard to his [or her] rehabilitation and good conduct.
“(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.” (Correction Law § 753 [1].)

We have held that “[a] failure to take into consideration each of these factors results in a failure to comply with the Correction Law’s mandatory directive” (Matter of Acosta v New York City Dept. of Educ., 16 NY3d 309, 316 [2011]).

In Acosta, we reviewed the DOE’s denial of an application for a security clearance, filed by an individual who had been convicted of first-degree robbery when she was 17 years old. The DOE contended that issuance of the security clearance would pose “an unreasonable risk to property or to the safety or welfare of specific individuals or the general public” (Correction Law § 752 [2]). We held that the DOE acted arbitrarily because the agency failed to consider each of the factors specified in Correction Law § 753. In particular, we concluded that the DOE did not take into consideration all of the documentation that Acosta submitted in support of her application, and therefore violated Correction Law § 753 (1) (g). The DOE had failed to consider a letter of reference from Acosta’s employer, indicating that she had been hired, in part, on the basis of her “ ‘model references from past employers’ ” (.Acosta, 16 NY3d at 319). DOE’s review, we concluded, amounted to no “more than a pro forma denial of petitioner’s application on the basis of her prior criminal conviction” (id. at 320).

Petitioner relies on Acosta, contending that the DOE has, once again, failed to review anything other than an applicant’s criminal record. We disagree.

Petitioner principally argues that the DOE “ignored the overwhelming and undisputed evidence that [he] had safely and successfully driven young children on school buses for 15 years without incident.” A failure to review evidence provided by an applicant tending to show that he or she had reliably carried out duties similar to those contemplated in the license or employment in question would constitute a violation of section 753 (1) (b) and (g). However, in this case, petitioner adduces no evidence demonstrating that the DOE failed to consider the information he provided concerning his relevant employment history.

In Acosta, it was “plain that, other than her personal statement, the DOE did not consider the documentation that petitioner submitted in support of her application” (Acosta, 16 NY3d at 319), but the same cannot be said here. Rather, the record indicates that the DOE may simply have given “greater weight to . . . the fact and circumstances of [petitioner’s] conviction[s] than to . . . his subsequent accomplishments,” and in these circumstances the DOE’s determination cannot be overturned without “engaging in essentially a re-weighing of the factors, which is beyond the power of judicial review” (Matter of Arrocha v Board of Educ. of City of N.Y., 93 NY2d 361, 366-367 [1999]). Moreover, the DOE is not obliged “to point to any contemporaneously created record that demonstrates that it considered each of the eight factors in reviewing petitioner’s application” (Acosta, 16 NY3d at 319). Contrary to the dissent’s theory, the burden remains on petitioner to show that the denial of his application was arbitrary and capricious.

Petitioner also relies on Correction Law § 753 (2), which provides that, in reaching a determination under section 752, “the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.” Here, petitioner received a certificate of relief from disabilities, issued in 2002.

However, Correction Law § 753 (2) does not

“establish a prima facie entitlement to the license or employment. It creates only a presumption of rehabilitation, and although rehabilitation is an important factor to be considered by the agency or employer in determining whether the license or employment should be granted (see, Correction Law 753 [1] [g]), it is only 1 of 8 factors to be considered” (Matter of Bonacorsa v Van Lindt, 71 NY2d 605, 614 [1988]).

Other Correction Law § 753 (1) factors, including criteria applicable here, “such as severity of the criminal offenses, the age of the offender at the time of the offenses, . . . and the nature of the license or employment sought,” may justify denial of petitioner’s application, “notwithstanding the absence of new evidence specifically addressed at overcoming the presumption of rehabilitation” (id.).

Notably, petitioner, who sought a certification that would authorize him to drive a school bus and have supervisory responsibility over school children in an otherwise unmonitored environment, had two felony convictions, as well as multiple misdemeanor convictions. Moreover, as the DOE noted, at the time of his more recent offenses, he was of “mature age,” rather than an age at which an individual’s moral values are typically still developing. In addition, his felony convictions were for possession and attempted sale of a controlled substance, a salient factor to the DOE, which is required by its regulations to take into account the particular concern of the New York City Public School System with offenses involving “possessing, distributing or selling controlled substances” (New York City Department of Education, Regulation of the Chancellor C-105 § 4 at 5). In these circumstances, we cannot conclude that the DOE’s determination, declining to grant the certification despite the certificate of relief from disabilities, was arbitrary and capricious.

Petitioner’s remaining contentions do not afford a basis for relief.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question not answered as unnecessary.

Chief Judge Lippman

(dissenting). The majority overlooks the policy animating Correction Law article 23-A — that people who have been convicted of crimes can be rehabilitated and that employment is critical in that effort. The entire purpose of the eight factors under Correction Law § 753 (1) is to ensure that employers act in furtherance of this policy and assist the reintegration of rehabilitated individuals into society. Because I believe the record makes it evident that the DOE failed to consider all eight factors, I would hold that its determination was arbitrary and capricious.

In enacting article 23-A, the legislature intended to recognize job-seeking individuals exactly like petitioner who, having engaged in past criminal activity, decide to lead a law-abiding life. It is clear that petitioner, now 62 years old, has presented overwhelming evidence of his rehabilitation and his move beyond criminal activity. He has been drug-free for 20 years, and continues to serve as an active member of the Bowery Mission Transitional Center. At the time that his application was reviewed, 18 years had passed since his last conviction and he had been working as a school bus driver for 15 years. He submitted to the DOE numerous references from friends, a minister, and employers who described his excellent relationships with the children, parents and schools he encountered as a bus driver. His employer described him as “upstanding,” “very dependable” and “a great asset to the company.” Despite all of this, and the Appellate Division’s remand for reconsideration due to the DOE’s initial error (Matter of Hasberry v New York City Dept. of Educ., 78 AD3d 609 [1st Dept 2010]), the DOE denied petitioner’s application by terse letter dated March 17, 2011 (“The New York City Department of Education’s Office of Pupil Transportation [OPT] has reevaluated your application for the position of school bus driver/escort. It is the opinion of the OPT that its original findings are correct and your application has been denied”). Then upon petitioner’s request under section 754 of the Correction Law, the DOE sent him another letter which found that his application must be denied because of the “direct relationship” between his criminal past and the job for which he seeks certification.

In fact, the DOE’s May 4, 2011 letter ignores the extensive evidence of rehabilitation submitted and the fact that petitioner had been doing essentially the same job as that for which the license was sought. In it, the Executive Director of the OPT states:

“The nature of the criminal offenses committed by the applicant lead me to have grave doubt about his moral character and reliability. Moreover, it appears to OPT that the applicant failed to be completely truthful in his application for NYCDOE certification of approval. As a consequence of the for [e] going certification of approval for NYCDOE school bus service is hereby denied.”

As Justice Freedman stated:

“The letter’s reference to [petitioner’s] ‘untruthfulness’ is totally unsupported by any evidence . . . [and] [t]he conclusion reached by the executive director of OPT that he had ‘grave doubt about his [petitioner’s] moral character and reliability’ is belied by petitioner’s impeccable record of steady employment since 1994, and his employment as a school bus driver for public and private school pupils for 12 years without incident, his certificate of relief from disabilities, and his significant record of community service” (Matter of Dempsey v New York City Dept. of Educ., 108 AD3d 454, 460 [1st Dept 2013, Freedman, J., dissenting]).

Also very significant is the content of petitioner’s 15-minute interview by OPT personnel in February 2011, which shows what the DOE actually considered. During the interview, OPT investigators asked petitioner questions about where he used to sell drugs, the quantity of the drugs sold and how much he spent on his daily “habit.” Yet, they failed to ask questions about petitioner’s life in the 18 years since his last conviction in 1993. In fact, OPT asked no questions about petitioner’s recovery from addiction or about the documents he presented regarding his rehabilitation.

In Matter of Acosta v New York City Dept. of Educ. (16 NY3d 309, 315-316 [2011]), we specified that “ ‘[i]n making a determination’ as to whether either the ‘direct relationship’ exception or the ‘unreasonable risk’ exception applies,” “[a] failure to take into consideration each of these factors results in a failure to comply with the Correction Law’s mandatory directive” (citing Matter of Arrocha v Board of Educ. of City of N.Y., 93 NY2d 361, 364 [1999]). While the majority is correct that it is improper for courts to “engagfe] in essentially a re-weighing” of the section 753 (1) factors (Arrocha, 93 NY2d at 367), it is clear that the DOE simply failed to consider petitioner’s rehabilitation and work experience in making its determination.

The majority cites Acosta (16 NY3d at 319) for the proposition that “the DOE is not obliged ‘to point to any contemporaneously created record that demonstrates that it considered each of the eight factors in reviewing petitioner’s application.’ ” However, the majority fails to note that unlike here, the petitioner in Acosta did not make a section 754 request for an explanation of the DOE’s denial of her application. In fact, in that same paragraph in Acosta, we cited Correction Law § 754, distinguishing letters notifying the applicant of the decision from agency responses explaining such denials upon a petitioner’s request (16 NY3d at 319 [“but see Correction Law § 754 (providing that, if requested, a public agency or private employer that denies a person’s application for a license or employment on the basis of that person’s prior criminal conviction ‘shall provide, within thirty days of a request, a written statement setting forth the reasons for such denial’ ”)]). This is the second time in less than five years that a DOE hiring case like this has come before us and this is the second time the DOE considered this petitioner’s application. Yet, in each of these circumstances, the DOE’s response has been to completely avoid any mention of the petitioner’s rehabilitation after the petitioner’s section 754 request for an explanation as to why the application was denied. This is unacceptable.

“Although the Court cannot substitute its judgment for that of the agency, it has a duty to insure that the law is properly applied and that the decision is not based upon ‘speculative inferences unsupported by the record’ ” (Matter of El v New York City Dept. of Educ., 23 Misc 3d 1121 [A], 2009 NY Slip Op 50883 [U], *6 [Sup Ct, NY County 2009], quoting Matter of Sled Hill Cafe v Hostetter, 22 NY2d 607, 612-613 [1968]).

“[The] denial letter is particularly problematic here in that petitioner’s criminal history is the only evidence detailed in any meaningful respect. Thus, the decision on the whole, as drafted, suggests that it was based primarily, if not entirely, on petitioner’s criminal history, with little consideration of the other evidence and statutory factors” {id.).

Additionally, the majority states that “petitioner adduces no evidence demonstrating that the DOE failed to consider the information he provided concerning his relevant employment history” (majority op at 300). While I do not suggest that we can order the DOE to grant petitioner’s application, the majority wrongly places the burden on petitioner to show that the DOE failed to consider each of the eight factors. Rather, the burden is on the DOE to show that petitioner’s conviction warrants a denial in this case.

The majority continues: “the record indicates that the DOE may simply have given ‘greater weight to . . . the fact and circumstances of [petitioner’s] conviction [s] than to . . . his subsequent accomplishments” (id. at 300). Contrary to the majority’s suggestion, I do not propose a re-weighing of the factors here — the problem is not that the DOE did not give enough weight to petitioner’s rehabilitation, but that it did not consider it at all.

Furthermore, implicit in its determination is that the DOE has created a bright-line rule that anyone with an adult drug felony conviction, no matter the circumstances, is unfit to be a school bus driver. However, the legislature has already addressed the issue of prior convictions, and decided exactly which criminal convictions bar one from becoming a school bus driver in New York (see Vehicle and Traffic Law § 509-cc [4] [a], [b]). Those convicted of violent and sexual offenses are prohibited from being school bus drivers, but not those convicted of drug offenses. The DOE has essentially created a permanent disqualification to employment where none exists under New York law. This analysis is particularly troubling where, as here, the convictions occurred more than 20 years before petitioner was granted a certificate of relief from disabilities — which specifically removes any barriers to driving a school bus — and has in fact driven a school bus in an exemplary manner for over 15 years. While the age of the individual at the time the crime was committed is a factor that may be considered, 20 years of rehabilitation would seem dispositive by any standard. “Petitioner’s age [at the time of the crime] ‘will never change — and if determinative, would bar Petitioner forever,’ and undermine the purpose of Article 23-A of the Correction Law” (Matter of Soto v New York State Off. of Mental Retardation & Dev. Disabilities, 26 Misc 3d 1215[A], 2010 NY Slip Op 50103[U], *7 [Sup Ct, Kangs County 2010], quoting Matter of Camulaire v New York City Bd. of Educ., NYLJ, Sept. 9, 1998 at 22, col 1 [Sup Ct, NY County]).

Among criminologists, the main factors that predict whether a previous offender will cease criminal activity and reintegrate into society are the passage of time and employment. These factors are consistent across types of crime and the individual’s age when the crime occurred. “At all ages and potential turning points, those who fail to secure satisfying employment or create bonds with conventional others often return to their former lifestyles and the risk of criminal involvement that brings” (Neal Shover, Great Pretenders: Pursuits and Careers of Persistent Thieves 129 [1996]). Accordingly, in passing article 23-A, the legislature realized that unemployment is the greatest barrier to rehabilitation.

“Observers of our criminal justice system agree that the key to reducing crime is a reduction in recidivism (i.e. repeated criminal conduct by the same individuals). The great expense and time involved in successfully prosecuting and incarcerating the criminal offender is largely wasted if upon the individual’s return to society his willingness to assume a law-abiding and productive role is frustrated by senseless discrimination.
“Providing a former offender a fair opportunity for a job is a matter of basic human fairness, as well as one of the surest ways to reduce crime” (Governor’s Approval Mem, Bill Jacket, L 1976, ch 931, 1976 NY Legis Ann at 418).

“This bill represents a major advance in public policy; its vigorous enforcement can remove the second class status to which former offenders have been relegated regardless of their efforts to be lawabiding citizens” (Letter from Community Service Society, July 6, 1976, Bill Jacket, L 1976, ch 931). The actions of the DOE here represent the type of senseless discrimination article 23-A was enacted to prevent, and petitioner is one of the class of intended beneficiaries of this statute.

For these reasons, I would reverse the order of the Appellate Division and remand to the agency for further proceedings.

Judges Read, Pigott, Abdus-Salaam and Stein concur; Chief Judge Lippman dissents in an opinion in which Judge Rivera concurs.

Order affirmed, with costs, and certified question not answered as unnecessary.

      . The DOE also submitted various exhibits, including notes from three DOE investigators who reviewed petitioner’s application after he sought the reasons for its denial, in which the investigators indicated concern about a lack of community recommendations on behalf of petitioner, his arrest history, and a gap in his employment profile.

      . It is not clear which exception was the basis for the DOE’s denial in this case. In his affidavit in support of DOE’s answer, OPT’s Executive Director stated his conclusion that “[pletitioner would pose an unreasonable risk to the safety and welfare of the young children with whom he would come into contact,” suggesting that the DOE invoked the second exception. The better practice is to articulate which Correction Law § 752 exception justifies an adverse employment action at the time the adverse action occurs.