291 Pleasant, LLC v Reinert, 2009 NY Slip Op 32790[U] [Sup
Ct, NY County 2009].)
In the one case where the plaintiffs specifically challenged the
timeliness of the NE-1 notice concerning HQS violations, the
Southern District found that the plaintiff could raise its due
process arguments re notice in an article 78 proceeding as op-
posed to a 42 USC § 1983 proceeding. (35-41 Clarkson LLC.)
The court acknowledged that plaintiff might also have a breach
of contract claim in state court, citing Abiele, but expressed no
opinion as to the merits of such a contract claim or whether
plaintiffs claims ‘‘are more appropriately addressed by an Article
78 proceeding or a plenary action for breach of contract.’’ (2012
WL 5992094 at *7, 2012 US Dist LEXIS 170555 at *21.) All the
other reported cases involving the ambiguity or timeliness of an
93 RALPH v NYCHA LAW DEPT. [41 Misc 3d 692] 699
NE-1 notice have centered around when the four-month statute
of limitations contained in article 78 begins to run. These courts
have therefore implicitly found that a challenge to an NE-1 no-
tice rests in an article 78 proceeding and not a breach of contract
action. (See Matter of 193 Realty LLC v Rhea, 37 Misc 3d
1203[A], 2012 NY Slip Op 51865[U] [Sup Ct, NY County 2012];
Matter of Bramble Weilders, Inc. v New York City Hous. Auth.,
2012 NY Slip Op 32181[U] [Sup Ct, NY County 2012]; Matter of
731 Gerard Watson, LLC v Rhea, 2013 NY Slip Op 31349[U]
[Sup Ct, NY County 2013].)
Plaintiff in essence contends that the Authority acted in an
arbitrary and capricious manner by sending out an untimely
notice of the defects so that it had no time to cure the defects
and avoid suspension of housing assistance payments. Alterna-
tively, plaintiff contends that a document, which it fails to at-