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 COLJRâlâ01: â I I W STATE 0 1 : NIXW Y O K K
COUNâIâY OF NEW YOKK: CIVII, 1âHliM: PAI<âI 12
In thc Matter olâthe Application olâ
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 câ. 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, NYCâI-IA
lly: SUIh 1 Krarncr, Esq.
.:
250 Ilroildwrly, 9âl f:
New York, NY 10007
(2I?)116-5206
Iâupers 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 Iâurnpikc
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
Authorityâs (NYCHA or I lousing Authority) ctâoss motion to dismiss, aiid directed it to serve and
iile its mswcr. âThe branch ofthe petition scckiiig a pi:climiiiary stay B.S to any actions takcn by
co-respondcnt Allantic âIâcrminul Housing Câorp., relating to a pending nonpayment proceeding
commcnccd against pctitioner in Kings County Civil C h r t â 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 Authorityâs determination lhat petitioneris irieligiblc for Section 8 beneilts.
The niattcr has been rcstored lo the co~irtâs
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 atlonieyâs 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.
âlâhcreadcr 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
courtâs 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 ~
olâMitchell-I,ama, pcti tioiicr receivcd
;1
1JIJD pro.ject-
bascd rental subsidy established by the Hou4ng and Câommunity Dcvelopmcnt Act o l 1974 to
make such housing iiiiits affordable to vciy low illcome tenants (Ver. Pet. 1 41). lllc buildingâs
1
âlandlordâ is First Atlantic Terminal. In about 2005, 1:irst Atlantic âlâcrmiiial pre-paid its 1 IIJD
mortgage which teriiiinatcd the buildingâs partlcipation i n the Mitchell-l,amu program.
I Iowever, the tenants lheii bccarne eiititlcd to apply for âenhancedâ 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.â Morc than a year
afkr tlic dccision was issued, petitioncr rnovcd to compel NYCHA to cornply with the courtâs
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.â Pelitioner
submittcd the required documentation t u NYCâI IA in December 201 0. Iâhe documents concerned
her pension and Workersâ Compensation iiicoinc, Social Security beiieijts, documentation
I
I.owiq/
1â /
/ ~ r r i m i d400355/2008 (Sup CâI 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 )âcar 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 ) . âThc Iiousirig iZr11hority conlends t1i;il
LO
pelilioiierâs 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 grandsonâs 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.
âlâheHousing 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 â~ni~isrcpresentation[s]~â e annual submissions to First
in h
Allantic âIâeniiinal 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; âDasis of Ineligibilily, Section Sâ]).â
The
1lousing Authority concludcd that petitioner âis 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.â TIcr iiieligibility is âindehiteâ (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 Workersâ
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 inconâcct. LJpc711
3.
Iâhe 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 liersellâ ti I 1 out the âI IUDâ 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
âwhereâ tlic Social Security numher for hcr grandson camc from, and statccl tliat shc had
providcd her grandsonâs 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 petitioncrâs failurc to submit âsufficiciit nbjcctive
evidcnce to provc shc did not misrepresent information alkcting eligibility preferences lâor
admission, faniily composition, or income.â (Appeal p. 6). The matter has now been restored to
the this courtâs 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 agencyâs determination but shall decide
if the delerminalion can be supported on any reasoilable basis (Mcrtter of Iâlir~cy-Câu11c.n
Storagtl
(â0.
v Borrrd of E1ucfion.sof thri Câiry ofâNcw~ o ~ +9s AD2d 635, 636 [ 1â Dept. 19831). âThe test
Y
k,
of whethcr a decision is arbitrary or capricious is ââdctcrmincd 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 !.xiââ h l l ~ ofâfâc~ll B o n ~ of llGâtl1~ 34 NY2d 222,232 [ I974]), cpotiiig 1
(A
r
~
,
17
N.Y. Adniiii. 1 ,aw, $ 184, p. 609). I hc burclcn is âsquarely on the pctitioncrâ
Jur.,
1,itz 7 k w
17
(A4ul/cr of Câlie
k i . 1 1 ~ 7 , 28 A133d 320, 321 11ââ Dept. 20061 [pertaining to thc mcrits olâthe case]).
I-âctitioiicrargues that NYCâI IAâs 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 NYCHAâs 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 ofâcosts and disburscnients, and a stay of thc nonpayment
procccdiiig commenced by First Atlantic âIcnniiial pending rcccipt of retroactive pclyiiiciit of tlic
Section 8 voucher.
Tlic pctitioii contends that NYCâHAâs 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 oiâher application for cnhanccd Scction 8 bciiefits (Ver. Pet. 7 S8). As to the
records kept by First Atlantic, tlie petition notes that âregardless of thc accuracy,â it is Liiidisputed
that pctitioiier âoblained no subsidy or bcncfit as a rcsult of any inaccuracy.â (Vcr. Pet. 7 58). It
liirther argucs that the information kept by First Atlantic is âcomplelelly] ix-rclcvant toâ her
application lor Section 8 benefits, that thc âitiforination [ ] 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 programâ (Ver. Pet. 1 5 8 ) . 11 contends that the
1
inlimnation collcctcd by First Atlantic Terminal âLw;isriot used 10 calculatc any form olâ
government housing subsidy or benefitsâ (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 fâur rent, and thc validity oiâtlic prograin is dependent on thc
NYCâI IAâs ability lo accurately asscss the I~ousehold
income so as to avoid issuiiig largcr
subsidics than warranted, pctitionerâs 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 âright or entitlement" to Section 8 assistance, and such assistance will only be made available
after a ânumber olrequirementsâ 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, âamong other things, thcir income, fmiily
composition, and citizenship status.â (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 cIifâii.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 Iâull j~rocess
in
7
[* 9]
December 20 1 0 when petitionerâs counsel providcd âcertain iiicome atid family composition
documciits and inforinationâ that had bccn rcqucqtcd (Vcr. Ans.
1 53).
As dcscribed by NYCHA,
thc documentation provided in 20 I O diffcrcd fruiii 11x inlâorinatioii 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 âall low-iiicoinc affordability restrictionsâ (Ver. Ans.
in
7 54).
Wliile she reported t-ccciving bi-weekly Workcrsâ 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, NYCâHA 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 graiidsoiiâs 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 âexcccded the threshold for a low-income family, a requirement for occupancy pursuant to
the HUD intcrcst reduction payment programâ (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 IAâs aiiswer includes several alâlirmative 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- ojâHIcrild
v Neiv York CâifyI
h h .
Auth., 72 AD3d 528 [ I
ââ Dept 201 01 [docs not shock thc coiiscicnce to
terminate public housing lease oiâtenant 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 olâ
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 denicuâ 9 NY3d 81 6 [ZOO71 [termination oiâlcase issued to tenant and her 15-ycar-old
son does not shock tlic conscience whcre tenant did not report her Iiusbandâs 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 oneâs 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
NYCâTIA housing and hsd
aii
othcrwisc unblemished record, and xhc was repaying the aniouiits
owed to NYCI IA, termiliation nlâlicr lease woiild shock thc conscience ;is it likely rcsult in
homelcssness Iâor the hniily]; Adcxltcr o f D m i s 1) New York Câity 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 tenantâs
intentional failure to disclose sonâs 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 tenantâs 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 tenantâs housing subsidy] ).
Herc, respondent argucs that it is not teiininating petitionerâs tenancy, but only f-inding
her unqualified for Section 8 hcnefits bascd not on the total olâher currcnt annual income, but
because she did not properly report all of her incoinc in the past. liespondent thus argues that the
âshock-the-conscieiIceâ standard docs not apply, since its determination to deny her a bciicfit is
not an eviction. 1 â 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. âIâhcrchas 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, Workersâ Compeiisation beiicfits, and her meager pension of $ I 18.49 a tnonlh.
Rascd on the March 14, 201 1 letter from pctitioncrâs doctor of25 ycars, petitioner has sevcral
chronic and potcntially serious physical cuiiditions and, based on licr pychiatristâs 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 câ [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, ifâleft 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 Cityâs 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 ofâlâercz, when âthe
circutnstanccs underlying the charges against a tcnant iio longcr exist, eviction of lhc:tenant
coiistitutes a disproportionate penaltyâ (87 AD3d at 479). Applying tlic Perez analysis here,
bccause petitionerâs 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 oneâs public housing
accommodation is aâ drastic pciialtyâ since for many, âil constitutcs a tcnancy ol last resortâ
(Matter.(fHoZiuâuy v. Frcxnco 268 AD2d 138, 142 [ 1â 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 petitionerâs currcnt application for Section 8
bciiefits should not bc based on her current application materials, and that a penalty 01â 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. âThe 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 petitionerâs motion not previously addressed
are herby denied; and it is further
ORDERED that tlic respondent First Atlantic Terminal I-Iousiiig Câorp., 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 oiâ 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 Câot-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 âlâcrminal 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
