Matter of Green v Hernandez
Annotate this CaseDecided on February 1, 2005
Supreme Court, New York County
In the Matter of Sandra Green
against
Tino Hernandez, et al.
402984/04
Sheila Abdus-Salaam, J.
In this Article 78 proceeding petitioner seeks a judgment reversing and annulling respondents' determination to terminate her participation in the Section 8 program, alleging that petitioner was not afforded adequate notice of the termination proceedings and that the determination was arbitrary and capricious.
Regarding the issue of alleged inadequate notice, petitioner claims that she never received the "T-3" notice required to be sent 45 days prior to termination pursuant to Paragraph 3 (b) of the First Partial Consent Judgment in Williams et al v. New York City Housing Authority. In answer to this petition, respondents have submitted a copy of a certified mail receipt and an entry in their "Accountable Mail Log" as proof that the T-3 Notice was mailed to Ms. Green by certified mail. However, as is pointed out by petitioner in reply, the tenant file maintained by NYCHA contains the envelope in which the T-3 Notice was mailed to petitioner, the envelope having been returned as "unclaimed", and the tracking record for the [*2]letter as indicated on the UPS website indicates that the letter was returned to Corona on June 14, 2004, which petitioner believes is the Queens Office of the NYCHA's Leased Housing Division. Thus, petitioner has come forward with proof that she did not receive the T-3 Notice that was mailed to her by certified mail, and that respondents knew that she had not received this letter.
Furthermore, as is alleged by petitioner, respondent NYCHA has a procedure by which termination notices are to also be mailed by regular mail, the purpose of this double mailing process to ensure compliance with the Williams consent decree and to increase the likelihood that the tenant will actually receive the notice
(LHD 01-10 Memorandum). In their answer, respondents assert that "[a]s here happened, it is the Housing Authority's practice to send the T-1 and T-3 letters by regular and accountable mail, a form of certified mail."(Answer, ¶ 24). However, there is no proof submitted by respondents that the T-3 Notice was mailed to tenant petitioner by regular mail. Moreover, petitioner has also noted that NYCHA also has a procedure regarding attempts to contact a tenant prior to terminating a Section 8 subsidy on the ground of missing documentation. The staff must attempt to contact tenants by telephone during the 45 day period for each T-3 Notice sent to the tenant, and the calls are to be made during regular office hours. If the calls are unsuccessful then follow up calls are to be made on evenings and weekends (LHD 01-13).. Petitioner has shown that respondent NYCHA failed to follow this procedure. The notations contained in Ms. Green's file indicate that the case worker made only one attempt to reach the tenant by telephone, that the attempt was unsuccessful, and that the call was made after the 45 day period had expired, and two days prior to the termination of Ms. Green's subsidy.
Based upon the foregoing, the court concludes that respondents failed to follow their own procedures for notification to petitioner, and that the determination should therefore be vacated. Here, as in Robinson v. Martinez (308 AD2d 355), "*** the record fails to demonstrate that the Housing Authority, in reaching its determination, followed its own *** [p]rocedures, adopted to assure compliance with federal due process requirements (see CPLR 7803 [3]; Matter of Fair v. Finkel, 284 AD2d 126 [2001]; Matter of Garner v. Tuckahoe Hous. Auth., 81 AD2d 915 [1981])." (Id.).
Additionally, aside from the failure of respondents to follow their own procedures with respect to notice of termination proceedings, petitioner has raised a serious issue regarding the basis of her termination, which was that NYCHA had not received her annual income recertification. According, to petitioner, at the time of recertification, she was unemployed and was in the process of looking for work. She obtained a "budget letter" from the New York City Human Resource Administration and submitted that to her case worker in April 2004. Subsequent to receiving her first notice of termination due to failure to submit annual recertification documents, Ms. Green obtained a position as a seasonal employee and informed her case worker about this job. However, petitioner alleges that her [*3]case worker told her that NYCHA would not accept seasonal work records as proof of income. Respondents' answer states that it lacks knowledge or information sufficient to form a belief as to the truth of this allegation.
Petitioner alleges that upon learning of the termination of her Section 8 subsidy from her landlord, she contacted her case worker who told her to submit her work records for her seasonal job, the same records that had been previously rejected. Respondents have denied this allegation in their answer, except to admit that petitioner's tenant folder indicates that she contacted the NYCHA on July 29, 2004 to inquire about the termination of her subsidy. However, it is significant that petitioner's request for restoration to the Section 8 program was rejected by NYCHA on the ground that "you bought [sic] up your completed paperwork on July 30, 2004, past the expiration of the T-3."(Petition, Ex. C). There is no indication in this letter that petitioner's paperwork was inadequate or insufficient, just that it was untimely. Thus, there is evidence in this record that petitioner has submitted adequate documentation of her annual income sufficient for recertification.
Based upon the foregoing, the petition is granted.
ADJUDGED that the determination is annulled and respondents are directed to reinstate petitioner to her Section 8 subsidy retroactive to July 23, 2004.
Dated:
J.S.C.
Check one: FINAL DISPOSITION NON-FINAL DISPOSITION
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