Matter of Lowery v Rhea

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Matter of Lowery v Rhea 2012 NY Slip Op 31008(U) April 12, 2012 Sup Ct, New York County Docket Number: 400919/2011 Judge: Paul G. Feinman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: HON. PAUL G. FEINMAN PART 12 J.S.C. J U W r% 4aa INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. 1ow6)Ly d y/z 0, 1 00I E-FILED /d were read on this motlon tolfor The following papers, numbered 1 to Adkie 4-4' Papers Numbered Papers Notice of MotlonlOrder to Show Cause Affldavits - Exhlbits - LQ4 - Answerlng Affidavits Exhlbits Reply Affldavits /?'e Cross-Motion: dyes i M c $ de ~ i d Q - d 0 No Upon the foregoing papers, It Is ordered that this tmdemir UNFILED JUDGMENT This judgment has not been entered by the County C l e and notice of entry cannot be served based hereon, To obtain entry, counsel or authorized representative muJ appear in person at the Judgment Clerk's Desk (Ram 141B). "t @ Check One: Check if approprlate: J. S.C. ,&FINAL DISPOSITION fl NON-FINAL DISPOSITION 0 DO NOT POST 0 REFERENCE 0SETTLElSUBMlT ORDERIJUDG. [* 2] SUPREME COLJR l 01: I I W STATE 0 1 : NIXW Y O K K COUN I Y OF NEW YOKK: CIVII, 1 HliM: PAI< I 12 In thc Matter ol the Application ol JUANITA I.(-)WERY, Pctitioiier, Index Nuniber Mol. Scq. N o . 4009 19/20 1 1 0) 11 For Judgiiient P u l - s l m to Article 78 oftlic Civil Practice Law Rr Iiulcs, -against- For thc Yclilictner: South Brooklyri I .rgal Scrviccs, lnc. By: Miclincl Weisherg. Bsq. John c . Cirily, I 3 q . 105 COllrt st. I3rooklyii, N Y 1 170 1 (718) 237-5500 lzor NYCHA Rcspondents: S o n y i l M. Kaloynnidcs, E s ~ . (.;enerol Counscl, NYC I-IA lly: SUIh 1 Krarncr, Esq. .: 250 Ilroildwrly, 9 l f: New York, NY 10007 (2I?)116-5206 I upers considcrod in rcview o f h i s pctition to rcvci-sL:a r i d ;iiiiiiiI, For First Atlantic: Ciutinan. Mjnrz. I3ilkcr & Sonnenkldt. PC. By: Uanicl S;iketkhoii, I h + 8 13 Jcricho I urnpikc Ncw Hydc Piirk, NY I 1040 ( 5 16) 775-7007. x 2X() a n d CI-oss motion lo dismiss: N urnbcrcd 1,2 3 4 4 h - .- . . -- .. . . . In this Article 78 proceeding, by prrvioiis decisioll a i d ordcr datcd Scptciiibcr 1 , 201 1 [* 3] h i s court held [lic petition in abeyancc, clciiicd the rcspondent New York City Hoirsiiig Authority s (NYCHA or I lousing Authority) ct oss motion to dismiss, aiid directed it to serve and iile its mswcr. The branch ofthe petition scckiiig a pi:climiiiary stay B.S to any actions takcn by co-respondcnt Allantic I crminul Housing C orp., relating to a pending nonpayment proceeding commcnccd against pctitioner in Kings County Civil C h r t s Housing Court, was also granted. NYCIIA lias lilcd and servcd its vcrii-ied answer. Also, i n the i n h i i n , petitioner appeared at an appeal hearing before the NYCIIA Applicant Appeals Unit which, 011 Novcnibcr 22, 20I I , issucd its written dctcmniination sustaining the Housing Authority s determination lhat petitioneris irieligiblc for Section 8 beneilts. The niattcr has been rcstored lo the co~irt s calcndar for dccisioii on the rcmaining branches of die petition, which seek pursuant to CPLR 7803 (3) to reverse aiid aiuiul the determination by NYCI IA to deny petilioncr Scction 8 housing benelits, aiid atloniey s fces and costs. Hy so-ordercd stipulation signcd on December 14, 201 1, the parlies agreed that the notice of petition and petilion have bccn aiiiended to statc that pctitioiicr sought annulment and reversal of thc November 22, 201 1 determination denying her application for a Section 8 voucher, and that the court will deterniinc the pelition based on this arncridment. l hcreadcr is prcsuined to be familiar with the underlying lacts as set forth in the decision of Scpteinber I , 201 1. A brief rcvicw oftlie proceeding follows, as originally set forth in the court s Scptcniber 1 , 201 1 decision. Petitioner is ;I 65-ycar-old disabled tenant who has lived in the same apartinent s i i u 1976 when tlic building was operating as a M itclicll-I,ama cooperative with a iiiortgage subsidized by the fcdcral Housing and Urban Developrnenl agency (HI JD) (Ver. Pet. 17 1-2). 2 [* 4] During the years the building was j x i r ~ ol Mitchell-I,ama, pcti tioiicr receivcd ;1 1JIJD pro.ject- bascd rental subsidy established by the Hou4ng and C ommunity Dcvelopmcnt Act o l 1974 to make such housing iiiiits affordable to vciy low illcome tenants (Ver. Pet. 1 41). lllc building s 1 landlord is First Atlantic Terminal. In about 2005, 1:irst Atlantic l crmiiial pre-paid its 1 IIJD mortgage which teriiiinatcd the building s partlcipation i n the Mitchell-l,amu program. I Iowever, the tenants lheii bccarne eiititlcd to apply for enhanced Section 8 voucliers adiiiiiiistcrcd by NYCl IA pursuaiit to 42 USC $ 1437f (t). Section 8 housing assistarice is a redera1 program administered in New York City by scveral agencies including NYCHA, through which the g:overnmcnt provides rent subsidies to lowcr-inconic lmii lies to enable them to relit privatcly owned housing (Cross Mot. Kramcr A K fT 3) A previous Article 78 petition was brought by petitioner afler her application for Section 8 was deemed to have been dcnied, and her petition was granted to the extcnt that the denial was annulled arid NYCFJA was directed to complctc the full application process. Morc than a year afkr tlic dccision was issued, petitioncr rnovcd to compel NYCHA to cornply with the court s decision; this was sellled in 20 10 with the Housing Autliority agreeing to proccss her application retroactive to the datc that First Atlantic Terminal left the Mitchell-Lama program. Pelitioner submittcd the required documentation t u NYC I IA in December 201 0. I he documents concerned her pension and Workers Compensation iiicoinc, Social Security beiieijts, documentation I I.owiq/ 1 / / ~ r r i m i d400355/2008 (Sup C I New York County, Briiun, J.). ~~, 2 According to NYCHA, although pctitioncr srihriiittcd H n e w appliculion i n Fehrtrnry 2008 and ;ippearccd Ibr licr eligihilily iiitcrview, she d i d not provide dl thc iiccessui-y tlc7curnciilalioli; ovci- (he course of tlic n e s t ) car and ii hnlf, NYCHA periodically scnl leller recltlcsts to petilioncr requesting [tic additional i i i l ~ i - i ~ i i ~and i i ~ i o documcnlilliclti at issuc (VU. AIR 7 5 I . citing ex. E Ilctlci-s dalcd hoiri May 30. 2008 to Pcbruary 17, 20 I O ) . Thc Iiousirig iZr11hority conlends t1i;il LO pelilioiier s statcmcnl lliat NYCHA rcliised to process her nppliciition until she niovcd Lo conipo1;it had cunliniicd L ;ltlcl11pl lo o process her applicillion (Vcr. Rns. 7 53). 3 [* 5] concerning her grandson s incomc, and the documents shc had submittcd annually to licr Ian d 1o rd , Fi r st A t 1a I I 1i c , sh owin 2 hc r 11 o usclio 1d co m po s i 1i o 11. l heHousing h t l i o r i l y clciiicd her appl icatiori for Section 8 benellts on February 10, 201 1. The I lousing Authority found ~ni~isrcpresentation[s]~ e annual submissions to First in h Allantic I eniiinal that it collectcd for IiUD concerning her f d l iiicoiiie lor the years 2005 and 20 IO, as well as discrepancies i n the nmouiil of income reported as earned by her grandson, and his Social Security iiuinber (Vcr. Pet. Ex. I [Dciiial; Dasis of Ineligibilily, Section S ]). The 1lousing Authority concludcd that petitioner is ineligible because she committcd fraud or another corrupt or criminal act in connection with a governmental housing program, or misrcpresented information affcctiiig eligibility, preferences for admission, h n i l y composition, income, or allowance. TIcr iiieligibility is indehite (id.). Petitioiier was granted an appcal, the hearing of which occurrcd bcfore the NYCHA Applicant Appeals Unit on Novcmbcr 21, 201 I . Pctitioiier appeared with her atloriiey, m the d Housing Authority appearcd with its attorncy. According to the written decision, the hearing officer revicwed the many documents proffered by NYCTIA. I I C noted that while petitioner did not subnit any documcnts, she reportcd her various sources in income, namely Workers Compensation, Social Security disability beiief3s since 2005, and a pciisioii since March 2007 from the New York State Nurscs Associalion. It was pointed oul lo petitioner that the contents of the carlier annual foniis left out certain sourccs of income, but that by signing thc docutiicnts she had validated thc representatioiis made in thc forms, although they wcrc incon cct. LJpc711 3. I he documcnts are attaclicd L ~ S exhibit I I ofllic verified complaint (forms signed by pctitiorior foi- Fii-sl Atlantic Terminal, dated 05/01/05, 09/01/06; 07/01/07; 07/01/08; 03/01/09; and 710lilO). 4 [* 6] questioiling, she stated that she did not liersell ti I 1 out the I IUD forms, but that a representative Ihn? the landlord lills theni out and shc tlicii signs them, not necessarily in the presence of lhe rcprcsenlativc, and without reading them (Appcal 1117. 5-6). Petitioner staled she did riot Icnuw where tlic Social Security numher for hcr grandson camc from, and statccl tliat shc had providcd her grandson s Social Sccurity card to thc I lousing Authority in ordcr to vcrify Ihc correct number. TTcr attorney argucd that it was unclear how NYCI JA was calculating the amount to bc charged li)r her monthly rent but that she had nol rcceived any benefits to which slic was not entitlcd (Appeal pp. 5-6). Finally, pctjtioiier explained that she takes several different medications lor incdicul conditions arid h a t tlic side ellicts can make her sleepy or groggy at times, and hcr judgment when reading and filling o u t forms could be impaired (Appcal p. 6). On November 22, 201 1, the Hearing Offjcer suslained the determination that petitioner was incligible for Section 8 bencfits, based on petitioncr s failurc to submit sufficiciit nbjcctive evidcnce to provc shc did not misrepresent information alkcting eligibility preferences l or admission, faniily composition, or income. (Appeal p. 6). The matter has now been restored to the this court s calendar for a dctcrmination 011 thc merits of the petition. A I i ~ i l yis s In an Article 78 procccding, judicial r-cview oladrniiiistrative detcrininations is liiiiitcd to qf Aromky v B0m.d of E h c . , 7 5 NY2d 997 [ 19901). thc grounds invoked by the agency (MU//LJI~ The court may not substitute its judginent lor h a t of thc agency s determination but shall decide if the delerminalion can be supported on any reasoilable basis (Mcrtter of I lir~cy-C u11c.n Storagtl ( 0. v Borrrd of E1ucfion.sof thri C iry of Ncw~ o ~ +9s AD2d 635, 636 [ 1 Dept. 19831). The test Y k, of whethcr a decision is arbitrary or capricious is dctcrmincd largcly by whether a particular 5 [* 7] action should liavc been tahen o r is justijied . . and whether the adiiiiiiistrative action is wilhoul foundation in !.xi h l l ~ of f c~ll B o n ~ of llG tl1~ 34 NY2d 222,232 [ I974]), cpotiiig 1 (A r ~ , 17 N.Y. Adniiii. 1 ,aw, $ 184, p. 609). I hc burclcn is squarely on the pctitioncr Jur., 1,itz 7 k w 17 (A4ul/cr of C lie k i . 1 1 ~ 7 , 28 A133d 320, 321 11 Dept. 20061 [pertaining to thc mcrits ol the case]). I- ctitioiicrargues that NYC I IA s dctcrmination is arbitrary and capricious, affcctcd by error of law, arid an abuse of discrclion (CPI ,Ti7803 131). Slic brings this petition to rcvcrsc and aiiiiul NYCHA s dctcriiiinatioii dciiying her a Section 8 voucher, to order NYCHA to issue her n Section 8 voircher retroactivc to thc month whcn tlie building was first removed from thc Milchcll-lmia program, lor an award of costs and disburscnients, and a stay of thc nonpayment procccdiiig commenced by First Atlantic Icnniiial pending rcccipt of retroactive pclyiiiciit of tlic Section 8 voucher. Tlic pctitioii contends that NYC HA s decisioii to deny petitioner Section S benelits is arbitrary and irrational given that it docs not dispute thc accuracy of the inlbrmatioii slic has providcd as part oi her application for cnhanccd Scction 8 bciiefits (Ver. Pet. 7 S8). As to the records kept by First Atlantic, tlie petition notes that regardless of thc accuracy, it is Liiidisputed that pctitioiier oblained no subsidy or bcncfit as a rcsult of any inaccuracy. (Vcr. Pet. 7 58). It liirther argucs that the information kept by First Atlantic is complelelly] ix-rclcvant to her application lor Section 8 benefits, that thc itiforination [ ] collccted by First Atlantic mid potentially reported to 1 IUD Iwas] part of its agreement with HUT) to rcccive inlerest reduction payments a h it lcft the project-based subsidy program (Ver. Pet. 1 5 8 ) . 11 contends that the 1 inlimnation collcctcd by First Atlantic Terminal Lw;isriot used 10 calculatc any form ol government housing subsidy or benefits (Ver. Pet. 7 56). It also points out Ihal she has not bccri h [* 8] investigatcd, arrested, charged, or coiivicted of any crime rcgarding housing subsidies (Ver. Pct. 7 58). NYCHA argucs in sum that because Suction 8 parlicipants are rcquircd to pay 30 perccllt of tlicir houschold income f ur rent, and thc validity oi tlic prograin is dependent on thc NYC I IA s ability lo accurately asscss the I~ousehold income so as to avoid issuiiig largcr subsidics than warranted, pctitioner s history of under-reporting her income to another governmeiit agency niake her disclnsurcs intrinsically unreliable. It contcnds that rnisreprcsentalions by 12iemselves warrmt a finding of*ineligibil ity. It argucs that applicants have no right or entitlement" to Section 8 assistance, and such assistance will only be made available after a number olrequirements are met (Ver. Ans. 1 42, citing 24 C1;K 1 9: 9x2202 [c]). First, NYCHA inust determine whethcr an applicant is cligiblc for Section 8 assistance, and to do that, tlic applicant must providc information regarding, among other things, thcir income, fmiily composition, and citizenship status. (Ver Ans. 7 42, ciling 24 CFR 5 982.201 [a], [b], [ c ] ) . NYCTIA must then contact a landlord participating in thc Section 8 program, dcterniine whether thc proposed rent is reasonable, conduct an inspection of-the apartment to ciisure housing quality standards, and then approve tlic Section X lease betwecii the landlord and the participant, after which NYCHA then eiitcrs into a contract with the landlord providing that the Ilousing Authority will pay tlic landlord, ii-om funds allocated through HUD, monthly rent subsidy payments comprising the cIif ii.rc~ice betwcen h c total rcnt lor the apartnicnt and the amount of wit paid by the Section X participant (Vcr. Ans. 1 39, 43, 44, ciliiig 24 CHI 9 982.305 [a]; 305 1 1 121; 401 [a] [31). 4 Thus, in thc instant caxc, NYCl IA was only ablc to conmicnce the I ull j~rocess in 7 [* 9] December 20 1 0 when petitioner s counsel providcd certain iiicome atid family composition documciits and inforination that had bccn rcqucqtcd (Vcr. Ans. 1 53). As dcscribed by NYCHA, thc documentation provided in 20 I O diffcrcd fruiii 11x inl orinatioii she had reported bctwccn 2005 and 2009 on the I-TTJII forms submitted to First Atlanlic Terminal as part of its recordkccping to show complia~ice iiiaiiitainiiig all low-iiicoinc affordability restrictions (Ver. Ans. in 7 54). Wliile she reported t-ccciving bi-weekly Workcrs Compensation benelits totaling $14,560, h m 2005 - 2010 (Ver. Ans. 1 SS), her Social Sccurjty jncomc was not reported for the 1 years 2005 through 2009, totaling nearly $90,000 (Vcr. Ans. 1/ 1S S , 56). Nor were her peiisioii 1 beiieiits of $1 18.49 a monlh, lirst rcccivcd in 2007, reported (Vcr. Am. 1 56). In 2009, 1 pctitioiier also rcported income earncd by her grandsoii totaling $19,773 (Vcr. Ans. 7 55), but did no1 report his income in tlic years 2005 through 2008 (Ver. h i s . 7 57). For 2010, the foriii indicatcs that her grandson was unemployed, however, NYC HA providcs a lelter daled January 2 1, 20 IO, indicating that he had bccn employed at a bowling alley as of Octobcr 2009 (Vcr. Ans. 7 57; cx. L). There was also the discrepancy in hcr graiidsoii s Social Security number between the iiuiiiber providcd on the HUD forms and the form provided in 201 0 (Vcr. Ans. 1 57). 1 According to NYCHA, the amounts not reported by pctitioncr for the ycar 2009 would have excccded the threshold for a low-income family, a requirement for occupancy pursuant to the HUD intcrcst reduction payment program (Ver. h i s . 7 58). Thus, had petitioner bccn admitted to the Seclion 8 program in 2005, her subsidy would have sitbsequenlly been terminated because her tenant share would liavc exceeded the rent at least in that year (Ver. h i s . 7 59). NYCl IA s aiiswer includes several al lirmative defenses, including that any claim for retroactive subsidy paymcnts is bail-ed by res judicata and collateral estoppel, based on the 2008 court 8 [* 10] dccision (Ver. Ans. 711 63-67). Wherc a tenant has been found guilty of inisrcpresenting or concealing incomc h m NYCHA, termination of the tcnancy has been hcld to be an appropriate peiialty (Muttor- oj HIcrild v Neiv York C ifyI h h . Auth., 72 AD3d 528 [ I Dept 201 01 [docs not shock thc coiiscicnce to terminate public housing lease oi tenant and her son after Housing Authority discovers that tenant hiled to report cniployiiieiit income on occupancy afijdavits for five years resulting in a substantial undcrpayment of rent, shc had pleadcd guilty to a misdcmeanor charge arising oul ol the conduct, and admitted tlic factual basis for the chargcs at thc administrative hearing while asking for probation]; Mkttcr of Suzilh v New York City 110~s. Auth., 40 AU3d 235 [ 1 Ft Dept 20071, 111 denicu 9 NY3d 81 6 [ZOO71 [termination oi lcase issued to tenant and her 15-ycar-old son does not shock tlic conscience whcre tenant did not report her Iiusband s co-occupancy of the apartment ibr 13 years, concealing his iiiconie aiid thus producing a substantially lower rent]). However, where there cxist mitigating circunistanccs, such as a long-tcrni tenancy, a prcviously uiiblcmislicd tenancy record, Iiomelessness in the event of tennination, aiid payment of restitution, terminalion of the lease may shock one s scnse of fairness (,we Mutter of Wire v Mwales, 85 AD3d 571 [lsl Dept 201 11, Iv clenicd-NY3d-, 2012 N Y Slip Op. 64814 [2012] [termination of lease of 25-ycar tenant with three iiiinor cliildrcn, one of whom is disablcd, is shocking to the cnnscieiice wlicr-e tenant failed to rcport einployment incomc on her aflidavits of income]; Muller. of Perez v NY3d , Rhtlci, 87 AD3d 476 [lst Dept 201 11, lv grui?fed-- 2012 NY Slip Op 68599 120121 [reversing trial coud and reillailding to agency, tinding that altliougli 37 year old tciiant with tlrcc children, oiie 17 and with learning disabilitics and oiic 7 with leiiming disabilities and emotional problems, had under-rcported her employiiient 9 [* 11] income and pled guilty to pctit ltirceny, bccuuse shc had been ; nearly lifctimc rcsidcnt of I NYC TIA housing and hsd aii othcrwisc unblemished record, and xhc was repaying the aniouiits owed to NYCI IA, termiliation nl licr lease woiild shock thc conscience ;is it likely rcsult in homelcssness I or the hniily]; Adcxltcr o f D m i s 1) New York C ity Dept of1iom.s. PTCSCPV.I k v , CG 58 hD3d 418 Llst l k p t 20091 [remand IO agency whcrc tcniiiiintion of Icasc bascd on tenant s intentional failure to disclose son s SSI bcnciits, which had no e l l k t on thc amount of rent subsidy, is shocking to the conscience since it likely rcsult in hoiiielcssiicss of 25-year tenant with three minor childrcri one of whom is disabled]; Addler of Griiy v Donovan, 5 8 A l X d 488 11sl Dept 20091 [rcinanding to agency for dcterinination of lesser penally whcrc tcmiination of tenancy based on failurc to report eariicd incomc of tenant s two adult children would likely rcsult in honiclessncss of the tciiant and hcr 13-year-old son, and is shocking to tlic conscjence; no indication of the impact the non-disclosure liad on the amount of tenant s housing subsidy] ). Herc, respondent argucs that it is not teiininating petitioner s tenancy, but only f-inding her unqualified for Section 8 hcnefits bascd not on the total ol her currcnt annual income, but because she did not properly report all of her incoinc in the past. liespondent thus argues that the shock-the-conscieiIce standard docs not apply, since its determination to deny her a bciicfit is not an eviction. 1 1court finds this argument unpersuasive. ~ Petitioncr who is 65, has lived in the same apartiiient since I076 and there is no cvidcnce that she has ever been anything othcr than a model tenant before this incident. I hcrchas been no criminal proceeding. She has xio employrimit income and appears unlikcly to ever again h a w any employment income. 1 ler grandson, as statcd at the appeals licaring, is now unemploycd and no longer lives with her (Appcalp. 5). It has been established Ihat hci- total income is based on 10 [* 12] Social Security, Workers Compeiisation beiicfits, and her meager pension of $ I 18.49 a tnonlh. Rascd on the March 14, 201 1 letter from pctitioncr s doctor of25 ycars, petitioner has sevcral chronic and potcntially serious physical cuiiditions and, based on licr pychiatrist s M e r of March 16, 201 1, shc lias n diagnosis ofBipo]ar Disorder- l y p e 2, compliant with tiiedicatioii (Vcr. Pel. ex c [Hriggs MI) lellerJ; cx. I3 [Pcloquen MD letter]). Clearly, without Section 8 bcnciits, pctiiioiler will lose licr apnrtment 2s 1 she will not be able to pay the standard monthly rcnt. Shc stands to lose the apartmcnt anyway, givcn thc existence of the nonpayment proceeding, currently slaycd. Thus, even though the 1lonsiiig Authority would not havc terminated her tcnancy, its decision, if left undisturbed, achieves the saiiie result. Moreovcr, the dcuial will be based not 011 her current very rnodcst income figurcs, which appear not to be in dispute, but past oversights, injsreprcsentations, inaccuracies, or however they are dcfined. It seems bcyond peradventure to this court that without a Scctioii 8 subsidy, the petitioncr, a senior citiLcn sLifYcringphysical and emolional ills of sufiicicnt imagrnitudc to warrant her leaving the worklorcc, will lose the aparhient she has lived in for Inore than 30 years and become hoiiicless4 and a burden on the City s public shelter system. This is 110 lcss shocking to thc conscicnce than directly temniixiating her lcase. Respondent orlers no evidence that, barring the discrepancies i n thc 2005-2009 aiGdavi Is, pelitioiier would bc incligiblc for Section 8 bcncfits. As statcd in Muller of l ercz, when the circutnstanccs underlying the charges against a tcnant iio longcr exist, eviction of lhc:tenant coiistitutes a disproportionate penalty (87 AD3d at 479). Applying tlic Perez analysis here, bccause petitioner s current Gnancial status is not at issuc, and appears to meet the initial critcria [* 13] for proccsqing an application for Section 8 bciiclits, it is shockil~g the 1 lousing Authority has that not sccn lit lo craft ;I lesser penalty that M J O L I allow petitioner to remain in her homc, perhaps a ~~ monetary sanction or a probationary period, or somcthing other than ti nding her indeiinitely eligiblc li)r Section 8 bcncfits. As noted by so many courts, to losc one s public housing accommodation is a drastic pciialty since for many, il constitutcs a tcnancy ol last resort (Matter.(fHoZiu uy v. Frcxnco 268 AD2d 138, 142 [ 1 J k p l 20001). That is no less true jn lhc Section 8 contcst when the tenant is disqualified from a piiblic benclits program resulting in homelessncss. Accordingly, thc petition is graiitcd only to the cxtent that the matter is remanded to the Housing Aulhority to consider why processing petitioner s currcnt application for Section 8 bciiefits should not bc based on her current application materials, and that a penalty 01 Icsser severity than dcnial of tlie benefits be imposed to address her past failings. Tlic branch of her petition seeks to coiiipcl NYCJ J to provide Scclioii 8 benefits retroactively was previously A deiiicd in the carlier petition coninleiiced in 2008, and inay not be re-litigated here. The branch of her petition seeking costs and lkes is denied. It is ORDEKED and AJJJUDGED that h e petition is granted to the extcnt that the matter is remanded to the New York City I-lousing Authority l o fbr reconsideration iii accordancc with this dccisioii, order and judgment; and it is furthcr ORDERED that the reniaining branches of petitioner s motion not previously addressed are herby denied; and it is further ORDERED that tlic respondent First Atlantic Terminal I-Iousiiig C orp., its agents, 12 [* 14] scrvaiits, cmployees and dl other persons acting undcr the jurisdiction, wpervision and/or direction of First Atlantic, directly or through any attorney, agent, servant, employcc or otlicr pcrson mcler tlic supervision or control oi respondent or otherwise, are enjoined and rcslraincd from litigating in any riizliiiicr thc non-payment proceeding cuncntly pcnding in Kiiigs Counly Housing Court, Firsf Atlantic Term. HSK C ot-p v Lowery, Index. No. 82929/2007, until 60 driys aftcr the issuancc of a iinnl dctcnnination by the llousing Authority of the issues hcreby reinaiidcd for reconsidcration; and it is hrthcr ORDEKK13 that the above injunction is conditioncd on petitioner continuing to pay her portion of the monthly rcnt to the rcspondent Firs1 Atlantic l crminal in a tirllely fashion. ,a- Dated: April 12,2012 New York, New York UNFILED JUDGMENT This judgment has not bwn entered by the Counly ccerk: and notice of entry cannot be sewed based hereon. To obtain entry, cwnsel M authorized representative Musf appear in person at the Judgment C W s l k k (Room 1416)- 13

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