Matter of Blake v Rhea

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Matter of Blake v Rhea 2012 NY Slip Op 31079(U) April 18, 2012 Supreme Court, New York County Docket Number: 400121/2012 Judge: Joan B. Lobis 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. lNED ON412312012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: A. Lo&> PART 6 Jwtlcr Index Number : 400121/2012 INDEX NO. BIAKEKENNETH vs. RHEA, JOHN 6 . SEQUENCE NUMBER : 001 ARTICLE 78 YOrnN D A MOTION SCQ. NO. -, ware mad on thll motlon@for ndwhun j\r(&t% d&i d IMlm l ., INo(m1. 1- 10 Notlcr of MotlonlOrdmr to Show Cauao - Affldavlta - Exhlblta Pe4 Ih M [No(@). I / - zq Anrwmrlng Affldavlta - Exhlblta The following papera, numbwed 1 to INO(#). Replying Affldivltr Upon t h m foregoing papon, It Ir ordmrsd that thls motlon I8 c J.S.C. I . CHECK ONE: ..................................................................... d CASE DISPOSED 0QRANTED c DENIED ] 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: ...........................MOTION IS: aDO NOT POST aGRANTED IN PART OTHER 0SUBMIT ORDER FlDUCl,\RY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: IAS PART 6 Index No. 400121/12 Petitioner. FOR A JUDGMENT PURSUANT TO ARTICLE 78 OF THE CIVIL PRACTICE LAW AND RULES on find Order -against- FILED JOHN B. RHEA, as CHAIRMAN OF THE NEW YORK CITY HOUSING AUTHORITY, ____-- Respondent. ___I_________________r____f__ll_________- ------------- X 20 2012 JOAN B. LOBIS, J.S.C.: NEW YORK COUNTY CLERfS OFFICE By this Article 7& proceeding, petitioner Kenneth Blake seeks to vacate t e decision of respondent New York City Housing Authority ( NYCHA ) denying his application to vacate his default in appearing at a hearing held on August 2,201 1 at NYCHA s office. The hearing resulted in a finding against Mr. Blake in his absence and led to a determination that his tenancy be terminated. Mr. Blake has lived at 3 1 1 Osborn Street, Apt. 6E, Brooklyn, New York, also known as the Brownsville Houses, since 2007. He resides at the premises with his two children, who are 22 and 15 years old. By notice dated June 30,201 1, he was notified that charges had been brought against him for chronic delinquency in the payment of rent. The charges specified that over a twelve-month period beginning May 1,201 0, Mr. Blake was late with his rent payment twelve times. He was also informed that a recommendation had been made to terminate his tenancy. A hearing on the charges was scheduled for August 2,201 1, at NYCHA s ofices at 250 Broadway, New York, I [* 3] I New York. Petitioner failed to appear for the hearing. The hearing officer sustained the charges on default and recommended that Mr. Blake stenancy be terminated. Petitioner requested a new hearing date of August 4, 201 1, on a form provided by NYCHA. As the reason for missing the hearing, he wrote that he mistakenly thought the date ofthe hearing was August 12. In Section F, entitled Defense , petitioner wrote that he spoke to Ms. Washington, that he called the number she gave him, and that he was sent to this office for a reopening of the case[;] here make a rent grievance. Petitioner did not state any other defense to the underlying charges. In support of the petition, petitioner does not deny the charges of chronic delinquency, f but says that he should be given an opportunity to present mitigating circumstances which led to his failure to pay rent. He believes that before his tenancy is terminated, NYCHA should consider his claim that he was providing financial assistance to his son. He also sets forth his plan to become J current in his rent payments, in that he has applied for assistance from the New York City Department of Social Services and that he is anticipating a substantial tax refund. He argues that NYCHA s determination not to reopen his hearing was an abuse of discretion, as was its failure to consider his testimony on mitigation. He asserts that terminating his tenancy is disproportionate to the offense of chronic rent delinquency and is shocking to one s sense of fairness. In answering the petition, NYCHA argues that this court must deny the petition. It also argues that this court is limited to reviewing the issue of vacating the default in appearing at the -2- [* 4] hearing, citing Io re Yarbounh v. Franm, 264 A.D.2d 740 (2d Dep t 1999), m,95 N.Y.2d 342 (2000). In that regard, NYCHA maintains that it properly denied petitioner s request for a new hearing because he failed to allege both an excusable default and a meritorious defense on his application to vacate his default. I NYCHA is correct in arguing that this court s role is limited to the issue of vacating the default. The standard of review is whether the administrative decision on the issue was made in violation of lawful procedures, whether it was arbitrary or capricious, or whether it was affected by an error of law. re Pel1 v. Bd, ofEdwLof Union Free Sch. Dist, No. 1 of Towns of Sc- & MamElmneck. Westchester County, 34 N.Y.2d 222,231 (1974). A determination is considered arbitrary and capricious when it is made without sound basis in reason or regard to fact. Peckham v. G a l o w, 12 N.Y.3d 424,43 1 (2009), Gitinn Pell, 34 N.Y.2d at 23 1 . If the agency s determination is rationally supported, the court must sustain the determination even if the court concluded that it would have reached a different result than the one reached by the agency. w, N.Y.3d at 43 1 (citation omitted). 12 I Here, it cannot be said that the hearing officer s determination to deny the request to reopen the hearing WEE arbitrary, capricious, or otherwise irrational. NYCHA has been repeatedly upheld in requiring a tenant to establish both m excusable default and a meritorious defense in seeking to vacate a default. Petitioner s application to vacate the default in appearing at the hearing failed to set forth a meritorious defense to the underlying charges. The supporting affidavit herein similarly falls short of setting forth o meritorious defense. Since this court is not reviewing the -3 - [* 5] c underlying determination to terminate the tenancy, any argument that the penalty in light of all the circumstances is shocking to one s sense of fairness cannot be reviewed. u,N.Y. at 233. 34 This court is limited to a review of the denial of the request to reopen the hearing. In re Y a r b o u v, Franco, 264 A.D.2d 740 (2d Dep t 1999). Accordingly, it is hereby ORDERED that the petition is denied and the proceeding is dismissed. Dated: April 1% , 2012 ENTER: L B. LO IS, J.S.C. FILED APR 28 2012 NEW YORK COUNTY CLERK S OFFICE -4-

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