Matter of Hodges v Division of Hous. & Community Renewal
Annotate this CaseDecided on August 18, 2011
Supreme Court, Queens County
In the Matter of the Application of Nicole Hodges, Petitioner,
against
The Division of Housing and Community Renewal et al., Respondent.
24972011
Petitioner Pro Se Nicole Hodges
Attorneys for Respondent New York State Division of Housing and Community Renewal: Eric T. Schneiderman, 120 Broadway, New York, New York 10271, (212) 416-6696, By: Roberta L. Martin, Esq.
Attorneys for Respondent Rochdale Villlage Inc.: Baker Greenspan & Bernstein, Esqs., 2099 Bellmore Avenue, Bellmore, New York 11710, 516-783-3300, By: William R. Greenspan, Esq.
David Elliot, J.
In this Article 78 proceeding, petitioner Nicole Hodges challenges the determination of respondent the DHCR, which denied the appeal of her request for succession rights to the subject apartment. The subject apartment is located in the housing complex known as Rochdale Village. Respondent Rochdale Village Inc., which holds title to the building, is a state-supervised, limited-profit housing company organized under Article II of the Private Housing Financing Law, commonly known as the Mitchell-Lama Law.
On January 10, 1970, Willie Hodges applied for an apartment in Rochdale Village, and, sometime thereafter, moved into the subject apartment with his wife, Laraine Hodges. Mr. Hodges executed an occupancy agreement for the subject apartment, dated April 1, 1972, and became the tenant-of-record. It is undisputed that Nicole Hodges, the daughter of Willie and Laraine Hodges, was born on September 8, 1977, and, thereafter, resided in the apartment with her parents and sister, Lisa Hodges. The records for the subject apartment, on file with the DHCR, begin with an annual income affidavit for the calendar year 1988, which lists Willie and Laraine Hodges as the occupants. The annual income affidavits for the years 1989 through 1997 list Willie, Laraine, Lisa and Nicole Hodges as the occupants. All four members of the Hodges family executed the annual income affidavits on June 3, 1999, May 24, 2000, and June 21, 2001, for calendar years 1998, 1999 and 2000, respectively.
Nicole Hodges asserts that, after her parents and sister moved out of the subject apartment in 2001, she continued to occupy the apartment as her primary residence. Nicole Hodges executed annual income affidavits on June 25, 2002, May 1, 2003, and April 29, 2004, for the calendar years 2001, 2002 and 2003, respectively, all of which list her as the sole occupant of the subject apartment.
By letter to Nicole Hodges, dated April 30, 2004, Darius George, Comptroller for Rochdale Village, stated that the annual income affidavit for 2003 was incomplete and would not be processed unless the head of the household, Willie Hodges, "came in" and [*2]transferred the apartment to Nicole Hodges. According to Nicole Hodges, her father completed the requested form, in person, at a meeting held on July 12, 2004, which she attended, along with Elizabeth Herold, a representative of Rochdale Village. Rochdale Village prepared a form letter, dated July 12, 2004, whereby the "member lessee" requested that all of the shares of stock and the occupancy agreement be issued to Nicole Hodges, the daughter of the "member lessee." A partially executed copy of this form letter appears in the administrative record and is attached to the petition. Petitioner asserts that she remained in contact with Ms. Herold for two years regarding the status of her succession.
On April 29, 2005, Nicole Hodges executed the annual income affidavit for the subject apartment for calendar year 2004, and listed herself as the only occupant. Nicole Hodges states that she and her father met with Elizabeth Herold on March 21, 2006, at which time the housing company acknowledged that it had lost the transfer forms Mr. Hodges had completed in 2004, and stated that he would have to resubmit the forms. Nicole Hodges, at the request of Ms. Herold, provided copies of the 2003 and 2004 affidavits, as these documents had also been lost by Rochdale Village. Rochdale Village prepared another form letter dated March 21, 2006, that was again executed by Mr. Hodges, in which he requested that the shares of stock and occupancy agreement be transferred to his daughter, Nicole Hodges. This form was executed and approved by Ms. Herold. Thereafter, Nicole Hodges executed annual income affidavits for the subject apartment on May 1, 2006, April 26, 2007 and April 30, 2008, for the calendar years 2005, 2006 and 2007 respectively, and listed herself as the sole occupant.
Nicole Hodges submitted an application to Rochdale Village dated April 14, 2009, which sought succession rights to the subject apartment. On May 6, 2009, Rochdale Village found her to be eligible for succession rights, and submitted her request to the DHCR for review. On May 20, 2009, the DHCR directed Rochdale Village to resubmit the application "with original approved application for current apt. Please provide evidence that the tenant of record has permanently vacated the apt. and when vacated. According to request to issue stock dated 3/21/06, it does not demonstrate when tenant of record vacated. None of the documents submitted specifically indicate the exact date the tenant of record permanently vacated the apartment."
Nicole Hodges states that Ms. Herold contacted her on August 15, 2009, and informed her that, in order for succession to be granted, the tenant-of-record had to sign an affidavit stating that he had not vacated the apartment until 2006, so that Ms. Herold's records would match and so that Nicole Hodges would not lose her succession rights. Mr. Hodges, in response to this request, executed and submitted a notarized letter, dated September 15, 2009, in which he stated he had vacated the subject apartment on March 5, [*3]2006; that he has since resided at 9 Linden Lane, Old Westbury, New York; and that he had turned over the apartment to his daughter, Nicole Hodges, on the day he vacated.
Rochdale Village resubmitted Nicole Hodges' application to the DHCR on October 6, 2009, along with a copy of the March 21, 2006 transfer form; the annual income affidavits for calendar years 1998, 1999, and 2000 which listed Willie, Laraine, Lisa and Nicole Hodges as occupying the subject apartment; the annual income affidavit for calendar years 2001 through 2007, which lists Nicole Hodges as the sole occupant of the subject apartment; Willie Hodges' 1970 application for an apartment; Nicole Hodges' 2007 W-2 statement and 2007 federal tax form which lists her address as 9 Linden Lane, Old Westbury, New York; a copy of Nicole Hodges' birth certificate and social security card; and a copy of Mr. Hodges' notarized letter dated September 15, 2009.
The DHCR, in a decision dated December 14, 2009, disapproved the application, stating that:
"In order to obtain succession rights, the applicant was required to have resided in the subject apartment with the tenant of record for a minimum of two years immediately prior to the date tenant of record vacated the apartment. This period of co-residency must be documented by three income affidavits or a Notice of Change to Tenant's Family' and two subsequent Income Affidavits. It appears that there is insufficient documentation to verify that the succession applicant has resided in the apartment for the requisite three years. As per 9 NYCRR 1727-8.3(a). The applicant would have had to appear with the tenant of record on the 2004, 2005, and 2006 Income Affidavit as would be required."
Rochdale Village, in a letter dated December 22, 2009 which was sent to Nicole Hodges at the subject apartment, informed her that her application for succession had been denied by the DHCR. Although Rochdale Village set forth the reasons for the denial, and requested that it be contacted within five days, it failed to inform Nicole Hodges of her right to appeal the DHCR's determination, the applicable time frame, and the necessary basis for an appeal, as required by 9 NYCRR 1727-8.4(b) and (c).
Nicole Hodges, however, in a letter dated January 11, 2010, requested an appeal of the DHCR's denial of her application for succession rights to the subject apartment, without stating the reasons for the appeal. The DHCR, in a letter dated January 21, 2010, informed Rochdale Village of the appeal, and requested that it submit an answer. Rochdale Village, in a letter dated February 16, 2010, restated the history of Nicole Hodges' 2009 succession application, and submitted copies of the DHCR's request for further information dated May 20, 2009; the DHCR's denial of December 14, 2009; and Ms. Hodges annual income affidavits for calendar years 2001 through 2007. [*4]
The DHCR, in letters dated March 4, 2010, requested further documents from Rochdale Village and Nicole Hodges. Rochdale Village responded by submitting copies of the original 1972 occupancy agreement and copies of the 2003 and 2006 annual affidavits. Nicole Hodges and her father, Willie Hodges, submitted affidavits in which they recounted the attempts to transfer the apartment and Rochdale Village's mishandling of their paperwork. In her affidavit, Nicole Hodges stated that she is the current tenant of the subject apartment; that her father is the original occupant; that she resided with him for the required two-year period before he vacated in 2001; that she and her father were listed on the annual affidavits during the relevant period; that she never concealed the fact that her father vacated the apartment in 2001; and that the management of Rochdale Village sought to conceal its errors and thus insisted that her father state that he had vacated the apartment in 2006. Mr. Hodges' affidavit is substantially similar to his daughter's and he also states that, against his better judgment, he executed the 2009 letter, stating that he had vacated the apartment in 2006, at the urging of Ms. Herold. Nicole Hodges also submitted a copy of her birth certificate, and annual affidavits for calendar years 1977 and 1998 through 2004; the letter of April 4, 2004 requesting that Willie Hodges effectuate the transfer, and the April 2004 and March 2006 transfer forms.
In a later dated May 9, 2009, the DHCR requested that Rochdale Village specifically respond to Nicole Hodges' assertion that Rochdale Village instructed the tenant-of-record to state 2006 as the year her father vacated the apartment, and to address Mr. Hodges' assertion that he actually vacated the apartment in 2001. Rochdale Village's General Manager, in a response dated June 1, 2010, claimed that Ms. Herold was not involved in sales or succession matters until the end of 2007, and stated that it was unable to state, with certainty, what Nicole Hodges had been instructed to do by Rochdale Village. It was also asserted that, although Rochdale Village had used the 2006 date with respect to the succession request, it acknowledged that this date contradicted the information it had on file, and claimed that its failure to seek clarification of the discrepancy was an oversight. Rochdale Village acknowledged that Nicole Hodges had completed requests to transfer the stock in 2004 and 2006. Finally, the general manager stated that the information contained in the tenant's file shows that Nicole Hodges had used the Old Westbury address on her current driver's license, 2007 W-2 form, 2007 Federal Tax Return Recap, and on her vehicle registration, which expired on October 30, 2005. Copies of these documents were submitted to the DHCR.
The DHCR also sent a letter to Nicole Hodges on May 19, 2010, requesting the latter to specify, as near as possible, the date the tenant-of-record vacated the apartment; to submit copies of documentary evidence showing that she and her father both occupied the apartment as their primary residence during the two-year period before he vacated the unit; to submit documentary evidence that she currently occupies the apartment as her [*5]primary residence; and, in particular, to submit copies of her current driver's license, automobile registration, and voter registration documents. On June 11, 2010, Nicole Hodges responded by submitting copies of monthly payments made by Willie Hodges to Rochdale Village in November and December 2000; a copy of her current vehicle registration which expired on March 16, 2011, bearing the Rochdale Village address; a copy of her current driver's license bearing the Rochdale Village address; a copy of a notice pertaining to a state issued benefit identification card bearing the Rochdale Village address; the 1998-2000 annual affidavits; and a copy of her prior vehicle registration and prior driver's license bearing the Old Westbury address.
Richmond McCurnin, Assistant Commissioner of the DHCR, upon receipt of the documents submitted by Nicole Hodges and Rochdale Village in connection with the appeal, proceeded to conduct an internet search of public records pertaining to Nicole Hodges. Printed copies of the Lexis/Nexis searches dated February 19, 2010 and August 31, 2010 were then incorporated into the administrative record, without notice to either Nicole Hodges or Rochdale Village.
On October 6, 2010, Assistant Commissioner McCurnin issued an order denying the appeal. He determined that Nicole Hodges had established that she was the daughter of Willie Hodges, the tenant-of-record; that Nicole Hodges had resided with her father for the required minimum of two years prior to his vacating the apartment in 2001; and that the housing company was on notice of the 2001 change in family composition, crediting Nicole Hodges' account as to Rochdale Village's processing of her succession claim in 2004 and 2006, and determining that Mr. Hodges had vacated the apartment in 2001, and not 2006. The Assistant Commissioner, however, found that the various documents in the record "cast significant doubt on her actual residency in the Apartment, both during and after the relevant qualification period." He then integrated into his order information he obtained through his internet search and used this information in order to conclude that Nicole Hodges had left the apartment along with her family, and that she does not maintain her primary residence at the subject apartment.
It is well settled that judicial review of an administrative determination is limited to a review of the record before the agency and whether the agency's determination was arbitrary or capricious, was an abuse of discretion, or lacks a rational basis in the law or the record (see CPLR 7803 [3]; Gilman v NY State Div. of Hous. & Community Renewal, 99 NY2d 144 [2002]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]; Matter of Colton, 21 NY2d 322 [1967]). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken "without sound basis in reason and without regard to the facts" (Matter of Pell, 34 NY2d at 231). "[A]n agency has great [*6]discretion in deciding which evidence to accept and how much weight should be accorded particular documents or testimonial statements, and its determination in that respect is subject only to the legal requirement that the administrative finding be rationally based (see Kogan v Popolizio, 141 AD2d 339 [1988]).
The DHCR, in determining an appeal pursuant 9 NYCRR 1727-8.4, acts as an adjudicatory body. It is required to consider the documentary evidence submitted by the appellant and the housing authority, and to make its determination based upon the parties' submissions, the applicable law, and governing regulations. However, neither the Private Housing Finance Law, the Public Housing Law, nor the governing regulations, authorize the DHCR to act as an investigating magistrate. Assistant Commissioner McCurnin's conduct in initiating his own independent investigation into the facts, and his incorporation of the internet search, has no basis in law. In conducting his own independent factual research, the Assistant Commissioner improperly went outside the record, and improperly supplemented the record, in order to arrive at his conclusions, depriving the parties an opportunity to respond to his factual findings. In effect, he usurped the role of appellant and respondent, and went beyond the DHCR's mandate of impartiality.
Even if it is assumed that the Assistant Commissioner was entitled to take "judicial notice" of the facts, there is no showing that the internet sites consulted were of undisputed reliability; further, the parties had no opportunity to be heard as to the propriety of taking judicial notice in the particular instance (see Prince, Richardson on Evidence § 2-202 [Farrell 11th ed]; see also NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d Dept 2004]).
It is noted that the first internet search result is dated February 19, 2010, just days after Nicole Hodges filed her appeal and Rochdale Village submitted its initial response. The second internet search result dated August 31, 2010, was conducted after the DHCR had received requested documentary evidence from Ms. Hodges and Rochdale Village. Furthermore, the second search results contains the following disclaimer: "Important: The Public Records and commercially available data sources used on reports have errors. Data is sometimes entered poorly, processed incorrectly and is generally not free from defect. This system should not be relied upon as definitely accurate. Before relying on any date this system supplies, it should be independently verified. For Secretary of State documents, the following data is for information purposes only and is not an official record. Certified copies may be obtained from that individual's state's Department of State."[*7]
This disclaimer highlights the inherently unreliable nature of an internet search. Since the results of the internet search directly affected the outcome of Nicole Hodges' appeal, the court finds that the DHCR's determination of October 6, 2010 was arbitrary and capricious, and an abuse of discretion.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED that the petition to vacate the DHCR's determination of October 6, 2010 is granted, and it is further
ORDERED, ADJUDGED, and DECREED that respondent's cross motion to dismiss is denied, and it is further
ORDERED, ADJUDGED, and DECREED that the October 6, 2010 determination is hereby vacated, and the matter is remanded to DHCR for reconsideration in accordance with this decision.
Dated: August 18, 2011
J.S.C.
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