Matter of John Fitzgerald v New York City Department of Housing Preservation and Development

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Matter of Fitzgerald v New York City Dept. of Hous. Preserv. & Dev. 2003 NY Slip Op 18904 [1 AD3d 285] November 25, 2003 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

In the Matter of John Fitzgerald, Appellant,
v
New York City Department of Housing Preservation and Development et al., Respondents.

— Order, Supreme Court, New York County (James Yates, J.), entered on or about September 27, 2002, dismissing the CPLR article 78 petition seeking to annul a determination of the Department of Housing Preservation and Development (HPD) which had issued to Tri-Faith Housing Company a certificate of eviction against petitioner, unanimously affirmed, without costs.

Petitioner's claim that the HPD hearing officer exceeded her authority and abused her discretion in issuing the certificate of eviction, thereby refusing to allow him the opportunity to cure his default, is unpersuasive. The record reflects substantial evidence supporting the finding that petitioner's historic and continuous refusal to grant the management company periodic access to his apartment, as required under 28 RCNY 3-16 (f) (14), and his persistent failure to pay maintenance in order to try to effect changes in management, constituted a nuisance warranting eviction, under 28 RCNY 3-18 (b). The hearing officer justifiably found that petitioner's past behavior demonstrated the futility of affording an opportunity to cure.

Petitioner's due process rights were adequately protected. The charges against him in the preliminary notice, coupled with the information provided in the final default notice, were reasonably calculated to apprise petitioner of the proceeding and his opportunity to be heard (see Kennedy v Mossafa, 100 NY2d 1, 9 [2003]). The hearing officer's consideration of hearsay evidence does not warrant a different outcome (Matter of Gelco Bldrs. v Holtzman, 168 AD2d 232, 233 [1990], lv denied 77 NY2d 810 [1991]). Nor is petitioner's invocation of RPAPL 753 (4) and its 10-day postadjudication cure period availing, because that statute does not apply to administrative proceedings (Matter of O'Quinn v New York City Dept. of Hous. Preservation & Dev., 284 AD2d 211, 212 [2001]). Concur—Mazzarelli, J.P., Saxe, Williams, Lerner and Marlow, JJ.