In determining a motion to dismiss pursuant to CPLR 3211,
the court accepts the facts alleged in the complaint as true, and
the plaintiff is accorded the benefit of every favorable inference.
(Leon v Martinez, 84 NY2d 83 [1994].) The court solely
determines whether ‘‘the facts as alleged fit within any cogniz-
able legal theory.’’ (Id. at 87-88; see 511 W. 232nd Owners Corp.
v Jennifer Realty Co., 98 NY2d 144 [2002].)
Defendant moves to dismiss this proceeding because plaintiff
is challenging an administrative determination of the Housing
Authority to suspend or withhold Section 8 subsidy payments,
which can only be brought pursuant to CPLR article 78. It also
asserts that plaintiff cannot cast its action as one resting in
* As set forth previously, neither side has produced a memo which defines
the time line in which the Authority must notify a landlord of HQS violations.
93 RALPH v NYCHA LAW DEPT. [41 Misc 3d 692] 697
contract simply because there is a HAP contract, because
plaintiff’s claims inextricably arise from the Housing Authority’s
administration of the Section 8 program and its alleged failure
to comply with regulations and procedures governing said
program. Finally, defendant asserts that the Supreme Court has
exclusive jurisdiction over article 78 proceedings.
Plaintiff counters that Civil Court is the proper forum as its
complaint is based in contract law since defendant breached the
HAP contract by suspending the Section 8 payments without
following the notice and time to cure procedures laid out in
subsection 3 (f) of the contract. Plaintiff elaborates that the
‘‘essence’’ of its claim is breach of an express contractual right
and that the Housing Authority ‘‘clarified the process’’ set forth