Matter of Nolan v New York City Human Resources Admin.
Annotate this CaseDecided on July 31, 2009
Supreme Court, New York County
In the Matter of the Application of Barbara Nolan, by her proposed guardian ad litem Maurice Gray, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law & Rules,
against
The New York City Human Resources Administration, Robert Doar, as Commissioner of the New York City Human Resources Administration; and The New York City Housing Authority, Respondents.
400720/09
Attorneys for Petitioner, Maurice Gray
South Brooklyn Legal Services
105 Court Street
Brooklyn, New York 11201
John C. Gray, Jr., Esq., Counsel
By: Michael Grinthal, of counsel
Barbara Nolan, pro se
Attorneys for Respondents
New York City Housing Authority
250 Broadway
New York, New York 10007
New York City Corporation Counsel
100 Church Street
New York, New York 10007
Joan B. Lobis, J.
Barbara Nolan, by her proposed guardian ad litem Maurice Gray,
brings this Article 78 proceeding to challenge Ms. Nolan's proposed eviction from her New York
City Housing Authority [*2]("NYCHA" or the "Authority")
apartment. Petitioner seeks to declare the New York City Human Resources Administration
("HRA") to be in violation of New York Social Service Law and various regulations and
directives concerning protective services for adults. Petitioner seeks to have HRA appoint a
guardian for Ms. Nolan, pursuant to Article 81 of the Mental Hygiene Law, and seeks to stay her
eviction. Petitioner asks that he be appointed as guardian ad litem in this proceeding; Mr.
Gray was appointed by a NYCHA hearing officer as guardian ad litem for Ms. Nolan for
the purpose of her NYCHA administrative hearing. HRA cross-moves to dismiss, pursuant to
C.P.L.R. Rules 3211(a)(5), (a)(7), and (a) (10), on the ground that Ms. Nolan is barred by the
four-month statute of limitations; that Ms. Nolan failed to exhaust her administrative remedies
by seeking a fair hearing to challenge the closing of her case; that the petition fails to state a
claim for which relief can be granted; and, that the petition fails to join a necessary party.
NYCHA served and filed an answer to the petition. The court granted a temporary restraining
order with respect to the eviction proceeding, which was scheduled for March 31, 2009..
Since 1982, Ms. Nolan has resided in an apartment in Sheepshead
Houses, a public housing project in Brooklyn. Ms. Nolan is described in the papers as a "55 year
old single woman suffering from severe depression, an anxiety disorder, and Collyers'
Syndrome, caused by a likely but undiagnosed personality disorder and obsessive compulsive
disorder, as well as a variety of physical disabilities." According to the papers, the unsanitary
conditions that are alleged to exist in her apartment include "severe clutter, foul odors, vermin,
and urine leaking through to the apartment below." While Mr. Gray's counsel claims that Ms.
Nolan has no one who is available and willing to assist her, it is alleged that she lives in the
two-bedroom apartment with a grandson; she also lists her daughter on the income affidavit. The
income affidavit states that Ms. Nolan last worked in 2004, for Triborough Bridge and Tunnel
Authority, and that she receives Social Security Disability benefits.
NYCHA started eviction proceedings against Ms. Nolan the first time in November 2004, for chronic rent delinquency, which is set forth as fourteen late rent payments in as many months. Ms. Nolan failed to appear at the March 30, 2005 hearing, allegedly because of her disabilities. A default judgment was entered against her. In April 2005, South Brooklyn Legal Services received a referral from the pro se attorney at Kings County Civil Court regarding Ms. Nolan.
As a result of an August 2, 2005 inspection of the apartment, the charges were amended, by notice dated November 10, 2005, to include "nondesirability" on the ground that the apartment was unsafe and unsanitary. The hearing was adjourned numerous times due to Ms. Nolan's unavailability. In February 2007, the NYCHA hearing officer appointed Maurice Gray as Ms. Nolan's guardian ad litem. The petition states that Ms. Nolan "repeatedly refused to allow either Mr. Gray or an attorney from South Brooklyn Legal Services to visit her apartment." Mr. Gray visited the apartment, but there was no answer; he visited the apartment below Ms. Nolan's, and spoke to the tenant. The tenant reported a leak of urine from the ceiling.
Mr. Gray referred Ms. Nolan to Adult Protective Services ("APS") in May 2007. A caseworker attempted to visit Ms. Nolan twice in May, but was unable to find her and closed the [*3]case. In July 2007, Ms. Nolan appeared at a NYCHA conference, and told her attorney that she needed help to start cleaning. The APS case was reopened. For months, caseworkers attempted to visit Ms. Nolan, but were never able to meet with her. The case was closed in September 2007, with the notation, "[a]dult cannot be located."There are additional notes on a log entry by an APS caseworker that seem to indicate a conversation with Ms. Nolan in which she stated that she would clean herself, because she is afraid that valuables and important documents would be lost or stolen during cleaning.
In or about late December 2007 or early January 2008, Ms. Nolan's APS case was reopened, following a NYCHA conference in November 2007 when Ms. Nolan admitted that she could not clean her apartment on her own. A representative from APS met with Ms. Nolan at the Kings County Civil Court, Housing Part, on or about March 4, 2008. The APS History Sheet, which is annexed to the petition, reflects that on March 18, 2008, the caseworker was able to make an assessment of Ms. Nolan and the apartment. The caseworker noted that Ms. Nolan lives in a two-bedroom apartment with her grandson. The casework observed that the apartment is in very poor condition, and is "in need of heavy duty cleaning." The notes reflect that there were large amounts of belongings all over, and that the apartment was "cluttered with clothes, paper, plastic bag[s]." But, the caseworker also noted that Ms. Nolan was dressed appropriately, well-groomed, and appeared mentally stable. Notes dated March 20, 2008 reflect that the caseworker recommended that this case be transferred to the Undercare Unit because Ms. Nolan suffers from asthma, nerve damage in her back and neck, and is depressed. She further notes that Ms. Nolan is at risk of eviction for failing to maintain her apartment in a sanitary condition. It is further noted that Ms. Nolan has two dogs and a cat, and that the kitchen is infested with roaches. The caseworker recommended that Ms. Nolan receive help with housekeeping, and recommended heavy duty cleaning and home care services. The case was transferred for undercare services on March 28, 2008.
Ms. Nolan refused to allow the cleaning crew into her apartment. HRA then requested a psychological evaluation. On May 29, 2008, Robert Spain, M.D., a psychiatrist employed by HRA's customized Assistance Services, went to Ms. Nolan's apartment with her caseworker. Dr. Spain stated that she needed a guardian ad litem for her housing court hearing, and contacted the attorney at South Brooklyn Legal Services to report that he was recommending that APS file an Article 81 proceeding.
A fair hearing was scheduled for May 30, 2008. Ms. Nolan failed to appear and was in default.Beginning June 9, 2008, Ms. Nolan's caseworker made numerous attempts to visit Ms. Nolan, but she did not return telephone messages, and did not answer the door on June 12, when the caseworker made a visit. After leaving telephone messages, the caseworker again visited the apartment on July 8, 2008. The notes reflect that the caseworker heard dogs barking but there was no answer. The management office was closed that day due to a flood, so the case worker was unable to make any further inquiries.
According to the petition, in June 2008, an attorney for APS, Robert Drapkin, Esq., began [*4]the process of filing an Article 81 proceeding for Ms. Nolan. (Respondent HRA states that on or about August 8, 2008, the caseworker referred the matter to HRA to have an Article 81 guardian appointed for Ms. Nolan.) Meanwhile, the NYCHA administrative hearing continued to be adjourned in two-month intervals to allow APS to provide services.
Notes in the HRA case file, dated October 13, 2008, reflect that the Office of Legal Affairs of APS rejected the recommendation for an Article 81 guardianship for Ms. Nolan because the attorney assigned to evaluate the case determined that Ms. Nolan understands the nature and consequences of her actions and what she is doing. Ms. Nolan was described as intelligent and having enough income to cover her rent and expenses. She was described as having a "character disorder but not mentally sick and/or psychotic." She rejects assistance from APS, including cleaning services and/or legal services. In fact, the file notes that Ms. Nolan represented that she had her own attorney, Norman Langer, Esq., who she claimed to have retained at some point. The APS case was closed. The petition refers to the APS Office of Legal Administration as having reversed the recommendation by Mr. Drapkin based on the fact that Ms. Nolan has her own attorney; it is unclear whether the reference to her own attorney refers to South Brooklyn Legal Services or Norman Langer, Esq.
According to HRA, a Notice of Intent to Discontinue Protective Services was sent to Ms.
Nolan on October 23, 2008, informing her that the APS case had been closed, and that if she
disagreed with the APS determination, she had a right to file for an administrative fair hearing to
challenge the determination. She failed to file any request for a fair hearing. According to the
petition, APS did not serve a written notice of the closure of the case on either Ms. Nolan or her
guardian ad litem. This petition was brought by Maurice Gray on March 27, 2009
Mr. Gray seeks appointment as a guardian ad litem pursuant to C.P.L.R.
§ 1202. A guardian ad litem may be appointed to appear on behalf of someone who
is "incapable of adequately prosecuting or defending his [or her] rights." C.P.L.R. § 1201.
Counsel for Mr. Gray, the proposed guardian ad litem, states that Ms. Nolan's
"psychiatric disorders render her unable to advocate on her own behalf." Irrespective of whether
the factual circumstances here warrant appointment of a guardian pursuant to Article 81,
C.P.L.R. §1202 provides for appointment of a guardian ad litem. Even if no one
brings the application, the court has the inherent power to appoint a guardian ad litem
"upon its own initiative." C.P.L.R. § 1202(a).
The need for appointment of guardians ad litem to protect certain tenants was recognized by the NYCHA in the class action settlement of the federal court case, Blatch v. Hernandez, 360 F. Supp. 595 (S.D.NY 2005), and 2008 WL 4826178 (S.D.NY Nov. 3, 2008) (approval of class action settlement), which concerned protecting the due process rights of mentally disabled tenants. The settlement requires the appointment of guardians ad litem for mentally incompetent individuals in proceedings concerning termination of tenancy, inter alia, together with the communication of information relevant to mental status in connection with Housing Court proceedings against residential tenants. The settlement also requires that the NYCHA follow certain enumerated procedures for investigating mental status and making determinations regarding mental [*5]incompetency. The need for a guardian ad litem for Ms. Nolan was recognized by the NYCHA hearing officer in December 2006, and Mr. Gray was appointed in February 2007. The fact that the NYCHA already recognized Ms. Nolan's fragility—while not binding on this court—confirms a need to safeguard Ms. Nolan's rights. It is incumbent upon this court to safeguard the due process rights of those individuals that may suffer from mental or psychological disabilities.
Ms. Nolan's inability to clean her apartment and her repeated refusal to allow management company officials in for an inspection have led to the commencement of eviction proceedings. While on some level she appears to understand the severity of this situation, she has not managed on her own to remedy the condition of the apartment. The court notes that Ms. Nolan has indicated that she does not want a guardian appointed for her. While her feelings are a factor to be considered, it appears to this court from the papers and an in camera review of Dr. Spain's report, that appointment of a guardian ad litem is warranted under these circumstances to protect and assist Ms. Nolan. Ms. Nolan's present condition impedes her ability to protect her rights; for these reasons, appoint of a guardian ad litem is warranted. See, New York Life Insurance Co. v. V.K., 184 Misc 2d 727 (Civ. Ct. NY Co. 1999). The court hereby appoints Maurice Gray, Esq., as guardian ad litem to appear for and to assert and protect Ms. Nolan's rights in this proceeding. Mr. Gray is on the list of candidates established by the Chief Administrator of the Courts, pursuant to 22 N.Y.C.R.R. § 36.1, et seq.
In addition to his appointment of a guardian in this proceeding, Mr. Gray also seeks to have the court require respondents to have a guardian appointed for Ms. Nolan pursuant to Article 81 of the Mental Hygiene Law. Respondents raise numerous defenses to this request for relief. First, respondents argue that appointment of a guardian is not a ministerial act, but is an act that is discretionary, and that an Article 78 or a mandamus does not lie to perform a discretionary act. Grillo v. Cuevas, 151 AD2d 359 (1st Dep't 1989). Second, respondents assert that Ms. Nolan has failed to exhaust the required administrative remedies before commencing this Article 78 proceeding. Respondents assert that Ms. Nolan was required to seek a fair hearing to challenge the closing of her APS case. Third, respondent HRA argues that the petition is untimely. HRA states that on October 23, 2008, Ms. Nolan was notified that her APS case was being closed, and that if she disagreed with this determination, she could request a fair hearing. The Order to Show Cause was not filed and this action was not commenced until March 27, 2009, approximately one month after the expiration of the four-month statute of limitations period. C.P.L.R. § 217(1). Respondents argue that the determination became binding on Ms. Nolan in October, since that is when she was "aggrieved" by it. See, Rocco v. Kelly, 20 AD3d 364, 365-66 (1st Dep't 2005).
The fourth ground is not asserted in the papers, but was pointed out by HRA on June 9, 2009, on the adjourn date of this application. At the prior conference, the court specifically directed HRA to look into this matter and see whether there was any possibility of resolving this matter without further litigation. On June 9, counsel for HRA advised the court that Ms. Nolan's case had been referred to APS' central intake, and was accepted. The case was then referred to Kings County. Counsel for HRA represented to the court that visits were attempted, but caseworkers were unable to gain access to Ms. Nolan's apartment. Ms. Nolan advised the court that a visit was attempted that [*6]very morning, but she was busy getting ready to come to court and did not let the caseworker into her apartment. Since there has been a new referral to APS, HRA's counsel argued to the court that the portion of the petition seeking to challenge HRA's determination is moot.
The re-referral of this case for a fresh look renders the earlier determination to close Ms. Nolan's case and HRA's refusal to bring an Article 81 proceeding moot. It is possible that upon a second review, HRA will determine that it is appropriate to commence an Article 81 proceeding.
The request to direct the government respondents to provide Ms. Nolan with services is premature, since her case is now under review. The requests to stay the NYCHA administrative termination of the tenancy proceeding pending against Ms. Nolan, and to stay the summary proceeding against Ms. Nolan that is now pending in the Civil Court of the City of New York, County of Kings, are hereby granted, and these proceedings are hereby stayed until twenty (20) days after a determination is made by HRA with respect to Ms. Nolan's case. In the event that a further stay is needed, Mr. Gray may bring an application for a further stay.
HRA's argument that the failure to join the New York State Office of Temporary and Disability Assistance ("OTDA") as a necessary party requires dismissal of this proceeding, pursuant to C.P.L.R. Rule 3211(a)(10), is denied. Pursuant to C.P.L.R. § 1001(a), persons or entities who ought to be parties if complete relief is to be accorded "shall be made plaintiffs or defendants." The failure to name these entities is not a separate ground for dismissal. The court may always order a party who should be joined as a party. C.P.L.R. § 1001(b).
The petition is decided in accordance with the foregoing. The cross motion is denied. The guardian ad litem, Maurice Gray, Esq., is directed to submit the necessary forms to accept the appointment, pursuant to C.P.L.R. § 1202(c) and 22 N.Y.C.R.R. § 36.2(d) and 36.4(a). In the event that he is unable to accept this appointment, Mr. Gray is directed to contact Chambers immediately. This case is dismissed, without prejudice to the bringing of a new petition, by the guardian ad litem, under this Index Number and without the payment of a new filing fee, in the event that HRA renders a determination that does not protect the interests of Ms. Nolan..
This constitutes the decision and order of the court.
Dated: July, 2009
______________________________
JOAN B. LOBIS, J.S.C.
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