Hayes v Housing Auth.

[*1] Hayes v Housing Auth. 2006 NY Slip Op 51011(U) [12 Misc 3d 1163(A)] Decided on April 4, 2006 Supreme Court, New York County Shafer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 4, 2006
Supreme Court, New York County

Juwanna Hayes, Petitioner,

against

Housing Authority, Respondent.



403309/05

Marilyn Shafer, J.

Introduction

Juwanna Hayes (Hayes) brings this petition under CPLR Article 78 seeking reversal of the final determination of respondent NYCHA (NYCHA) that Hayes, her husband and co-tenant Willie Greene (Greene), and their three young children should be evicted from their apartment in the Samuel Gompers Houses at 100 Pitt Street in lower Manhattan. Hayes, who is unrepresented, explains that she was never warned of the consequences of excessive noise from her household, and asks for a "second chance" (Notice of Petition, p 3). Hayes also states that the satellite dish on her window ledge, another violation that formed the basis for the final determination that the family be evicted, was removed and the problem rectified by the date of her hearing. Hayes and Greene have been tenants of apartment 17D since August 2001 and were, at the time of the final determination, the parents of children ages 4, 3, and 1.

By letter dated February 22, 2005, Hayes and Greene were notified of a hearing date and charged with 1. "non-desirability" based on excessive noise; 2. "non-verifiable income" based on their alleged failure to provide proof of income; 3. "breach of rules and regulations" by their alleged failure to provide income on other members of the family and household; 4. installation of a satellite dish on the window sill; and 5. failure to obey rules and regulations concerning the care of their apartment and the Development, pursuant to ¶12 (bb) of the lease (Verified Answer, Exhibit 5). After a hearing on May 5, 2005 (the hearing), Hearing Officer Stuart Laurence determined that charges one through four had been "admitted and deemed proven," and recommended the family be evicted ( Verified Answer, Exhibit 7). NYCHA terminated the tenancy of Hayes and Greene by letter of May 25, 2005.

Having exhausted her administrative remedies, Hayes asks for an opportunity to cure rather than removing her children to a shelter. She states in her petition that she is being evicted without fair warning because the children are too noisy, but that they are quiet between 10 pm and 10 am as required by the lease.

NYCHA answers, in salient part, that Hayes and Greene were notifed on December 22, 2003, and a week later on December 30, to appear for an interview concerning their alleged "breach of rules and regulations - satellite dish," and did not appear. Hayes and Greene were notified to appear for an interview concerning their alleged non-verifiable income on April 26, [*2]2004, and a week later on May 3, according to NYCHA, and did not appear (Verified Answer, ¶¶ 14,15). NYCHA also claims that Hayes admitted all charges against her at the hearing (Verified Answer, ¶19), and justifies the penalty of eviction based on the Hearing Officer's conclusion that since Hayes would not "acknowledge a problem, let alone offer a cure, there is no basis upon which to mitigate the disposition" (Verified Answer ¶22, quoting final determination, Exhibit 7). NYCHA denies that the determination is arbitrary or capricious and asserts that eviction of the Hughes family is rationally based on the facts of their "outrageous" conduct (Verified Answer, ¶ 28).

Discussion

It is well settled that judicial review in an Article 78 proceeding is limited to a determination of whether the administrative action complained of is "arbitrary and capricious, or lacks a rational basis" (In re Application of Chelrae Estates, Inc. v State Division of Housing and Community Renewal, Office of Rent Administration, 225 AD2d 387, 389 [1st Dept. 1996]). "An Article 78 proceeding is limited to consideration of the evidence and arguments raised before the agency when the administrative determination was rendered and [t]he function of the court . . . is to determine . . whether the determination had a rational basis in the record'" (In re Application of HLV Associates v Aponte, 223 AD2d 362, 363 [1st Dept. 1996]; citing Matter of Fanelli v New York City Conciliation & Appeals Bd., 90 AD2d 756, 757 [1st Dept. 1982]). The Court of Appeals has defined arbitrary and capricious action as "action without sound basis in reason and generally taken without regard to the facts" (Pell v Board of Education of Union Free School District, 34 NY2d 222, 231 [1974]).

Pursuant to CPLR 7803 (3), the only questions that may be raised in a proceeding under Article 78 are "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed. . ." Where a punishment has been imposed, the test is "whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness" (Pell, supra at 233, internal citations omitted). It is by now well settled that a sanction will not be upheld if it "shocks the judicial conscience and, therefore, constitute an abuse of discretion as a matter of law" (Featherstone v Franco, 95 NY2d 550 [2000]).

According to NYCHA's Termination of Tenancy Procedures (the Procedures) a family is "non-desirable" if their behavor constitutes ". . . (4) a source of danger to the peaceful occupation of other tenants, or (5) a common law nuisance" (Verified Answer Exhibit 1, p 1). The Procedures also provide that in the event a charge is found proven, the Hearing Officer may make a disposition of termination or probation (Verified Answer Exhibit 1, p 2 at ¶ 10 ). Paragraph 14 states that " . . .where any substantial charge of non-desirability has been proven, a tenant may be given probation for a specified term not to exceed a year when the conditions set forth in subparagraph (a) exist. . ." Subparagraph (a) states "there is reason to believe that the conduct or condition which led to the charge of nondesirability may not recur or may have been cured, or that the tenant is taking or is prepared to take steps to correct or cure such conduct or condition." In addition, the Procedures provide clearly that "[t]he project manager or his representative will interview the tenant in order to discuss the problem which may lead to termination of tenancy, seek to ascertain the facts involved, and, when appropriate, seek to assist the tenant by securing outside help" (Verified Answer Exhibit 1, p 1, at §2 ). The court notes [*3]that the language of this section is mandatory, not permissive.

As a matter of due process, while an indigent tenant does not have a constitutional right to be assigned an attorney, she or he may not be "deprived of continued tenancy in a public housing project, without affording him or her adequate procedural safeguards" (Brown v Popolizio, 166 AD2d 44 [1st Dept 1991], citing Escalera v New York City Hous. Auth., 425 F2d 853, 861, cert denied 400 US 853]). Where NYCHA fails to follow its own procedures in terminating a public housing tenant, the termination must be annulled (Garner v TuckahoeHousing Auth., 81 AD2d 915 [2nd Dept 1981],cited in Brown v Popolizio, 166 AD2d 44 [1st Dept 1991]).

Termination on Grounds of Non-Verifiable Income and Breach of Rules (Satellite Dish)

Contrary to NYCHA's claim that Hayes admitted all charges at the hearing, Hayes clearly denied the allegation that she failed to verify her income, and a Housing Assistant for NYCHA, on questioning, admitted to receipt of the verification (Exhibit 6, p 6). Hayes, who states that she and her family are on public assistance, went on to testify that verification of public assistance is mailed to recipients only once per year, accounting for her delayed response to NYCHA's request. Hayes also admits to having had a satellite dish on her window ledge, but it is not disputed that this condition was also cured prior to the hearing:

Hearing Officer: And do you admit that even though you were asked to, you have still not verified your income, and family occupants the occupants of your household?

Ms. Hayes: No, I gave it to him.

Hearing Officer: When did you do that?

Ms Hayes: Yesterday.

Hearing Officer: Are you satisfied?

Mr. Ling (Housing Assistant, NYCHA): We just received the paper . . .

Mr. Kwasnik (Of Counsel, NYCHA): . . .if the paperwork is complete, then we are satisfied, but since we just received it yesterday, my Housing Assistant cannot make a

Hearing Officer: No, you are the one to do it.

So you admit that it was late, is that

Ms. Hayes: Right. . .

Hearing Officer: . . . do you admit having a satellite dish?

Ms. Hayes: Right.

Hearing Officer: Has it been removed?

Ms. Hayes: Yes.

Hearing Officer: All right.

And [charge] five seems to be gratuitous.

The final determination that charges two, three, and four were admitted and deemed proven is flatly belied by the foregoing transcript testimony. Accordingly, these charges cannot be upheld and are arbitrary and capricious and without any rational basis in the record.

Termination on grounds of Non-Desirability

We next consider termination of the Hayes family's tenancy on grounds of non-desirability. In hearing testimony, Hayes does not contest the allegation that there was excessive noise coming from her apartment. However, there is no evidence for the claim by NYCHA that the manager of Gompers Houses repeatedly sought to meet with Hayes and Greene "to discuss [*4]complaints made about Petitioner by her neighbors" (Memo of Law, p 6). NYCHA submits no more than the letter from NYCHA to Hayes of February 22, 2005, informing Hayes of a hearing date on five charges including excessive noise (Verified Answer, Exhibit 5).

NYCHA also submits a letter of December 17, 2003 to Hayes and Greene advising them that termination of their lease was being considered due to the satellite dish and instructing them to attend a meeting at the management office on December 22nd, followed one week later by a letter threatening legal action. A letter of April 19, 2004 advises Hayes and Greene that NYCHA was considering termination of their lease due to non-verifiable income; this letter is also followed one week later by a letter threatening legal action. None of these notices, however, allege non-desirability based on excessive noise. Moreover, it is established that Hayes cured both these conditions prior to the hearing.

Additionally, nothing in the record demonstrates that the project manager or his or her representative interviewed, or even attempted to interview, Hayes and Greene to discuss the problem of noise and to ascertain the facts, as explicitly required by the Procedures at ¶2. No remedial action was taken by the manager prior to the notification of hearing by letter of February 22, 2005. In fact, Hayes' first and final opportunity to address NYCHA's charges of non-desirability based on noise complaints was at the hearing, where she appeared without counsel, without a representative, and was the sole witness for herself. There Hayes was unprepared for a confrontation with four neighbors in the building who testified for NYCHA to impermissible noise.

Under the particular circumstances of this case, the court finds the imposition of the maximum penalty of eviction to be excessive and in violation of NYCHA's established Procedures requiring that the project manager interview the tenant to discuss the problem that could, and did, lead to termination. "The minimal procedural requirements of due process under the Fourteenth Amendment must reflect the balance between the government's interest in efficient administration and the nature of the individual's interest being affected by governmental action" (Escalera, supra at 867). Since NYCHA failed to follow its own procedures in terminating Hayes, the termination must be annulled.

Furthermore, NYCHA's penalty of evicting Hayes, Greene and their children on the basis of noise complaints, without any warning let alone probation, in violation of NYCHA's own procedural safeguards, is so disproportionate to the offense and so shocking to one's sense of fairness as to constitute an abuse of discretion (CPLR 7803 (3)). NYCHA's conclusion that there was no basis for mitigatation is unconvincing, given that Hayes was never given an opportunity to take steps to correct or cure the conduct prior to termination.

Conclusion

For the aforementioned reasons, it is hereby

ORDERED that Hayes' petition is granted and NYCHA's determination to terminate Hayes' tenancy is annulled and the matter remitted to NYCHA for imposition of a penalty consistent herewith.

This reflects the decision and order of this court. [*5]