Matter of Frederick v New York City Dept. of Hous.
Preserv. & Dev. Hope Community
2012 NY Slip Op 31086(U)
April 24, 2012
Sup Ct, New York County
Docket Number: 402918/2011
Judge: Paul G. Feinman
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
Sequence Number : 001
MOTION SEQ. NO.
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COUNTY CLERK'S OFFICE
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................................................ 0SETTLE ORDER
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GRANTED IN PART
0FIDUCIARY APPOINTMENT 0REFERENCE
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : CIVIL TERM: PART 12
In the Matter of the Application of
Index No.: 402818/20
Mot. Seq. No.: QQl
For a Judgment Pursuant to Article 78 of the CPLR
For the Respondent:
Michael A. Cordozo, Esq.
Corporation Counsel of the City of N e & w r u
By: Edan Burkett,Esq.
100 Church St., r .5-164
New York NY 10007
For the Petitloner:
Terrance Frederick, pro se
159 E. 103d St. apt. #2B
New York, NY 10029
(646) 53 1-6293
Papers considered in connection with this Article 78 petition:
Notice of petition, verified petition and annexed exhibit
Verified answer, Respondentâs memorandum of law and Porter affidavit
and annexed exhibits A J
PAUL . FEINMAN,
By notice of petition dated October 28,201 1, pro se petitioner brings this Article 78
proceeding seeking an order annulling respondentâs decision to terminate his Section 8 subsidy
and granting him a new informal hearing. In its verified answer dated January 11,2012,
respondent New York City Department of Housing Preservation and Development (HPD) argues
that its determination to terminate petitionerâs Section 8 rent subsidy was reasonable and rational
and in conformance with the applicable statutes, laws and regulations (Verified answer, 146).
For the reasons that follow, the petition is denied.
Pursuant to the rules and regulations governing the Section 8 program, HPD mailed
petitioner his 201 1 annual recertification application on March 3 1, 201 1, which was due back to
HPD by May 3,201 1 (Verified answer 1 36,49). Petitioner did not complete the recertification
application or otherwise respond in writing by the deadline (id.at 7 37). On May 24,201 1, HPD
sent petitioner a âPre-Termination Notice of Section 8 Non-Complianceâ and âRequest for a
Conferenceâ by first class certified mail to petitionerâs address of record (ex. F, Pre-Termination
package). Respondent submits the certified mail receipt showing proof of such mailing (id.).The
Pre-Termination Notice informed Petitioner that his âSection 8 rent subsidy may be terminatedâ
for failing to provide the required documentation previously requested by HPD. Further, in bold
print in all capital letters, the notice advised petitioner that he had fifteen (1 5 ) calendar days from
the date of the notice to request a hearing to challenge the proposed termination of benefits.
On July 8,201 1, HPD sent petitioner a âNotice of Section 8 Rent Subsidy Terminationâ
by first class certified mail to petitionerâs address of record (ex. G, Termination notice). The
Termination Notice informed petitioner that his Section 8 subsidy would be terminated effective
August 3 1, 20 1 1 because he failed to provide the required documents to complete his recertification package (Verified answer 7 40). The Termination Notice also informed petitioner
that he could appeal HPDâs decision by requesting an informal hearing in writing by submitting
the âAppeal of Section 8 Rent Subsidy Terminationâ form, which was included with the
Termination Notice (id,).
Respondent submits an affidavit of service and certified mail receipt as
proof that the Termination Notice had been sent to petitioner (ex, G., Termination notice).
On July 12,201 1, HPD received a completed âAppeal of Section 8 Rent Subsidy
Terminationâ form from petitioner requesting an informal hearing to contest the termination of
his rent subsidy on the basis that he had not received the re-certification package (Verified
answer 7 41, ex. G, Appeal request). Respondent approved petitionerâs request for an informal
hearing and on August 4,201 1, HPD sent petitioner a âDate of Informal Hearing - Section 8â by
first class certified mail to petitionerâs address of record (ex. I, Notice of informal hearing). The
Notice of Informal Hearing advised petitioner that his informal hearing would be held on
September 6, 201 1. It further warned petitioner in bold capital letters that failure to appear at the
informal hearing or to reschedule would render a final determination o f a termination by default.
Respondent submitted an affidavit from Barbara Porter, a Senior Hearing Representative at HPD,
attesting that she had properly mailed a Notice of Informal Hearing by first class and certified
mail to petitioner at his address of record (Porter affid.).
However, petitioner did not appear at the informal hearing on September 6,201 1.
Consequently, HPD sent petitioner a âNotice of Determination After Informal Hearing Section 8
Rent Subsidy Terminatedâ dated September 26,20 11, and mailed via first class, certified mail to
petitionerâs address of record (ex. J, Notice of determination). The Notice of Determination
informed petitioner that he would be terminated from the Section 8 program effective October
3 1,2011, because he had âfailed to appear at the scheduled informal hearing and did not contact
HPD concerning [his] absence from the informal hearingââ (id).Respondent submitted an
affidavit of service by Jamar Sass attesting that the notice was delivered by overnight mail to
petitioner (ex. J, Sass affid.). Now that petitionerâs housing assistance has been terminated, he
will be required to pay the entire contract rent on his apartment.
Petitioner has raised several points in support of his petition. His first contention is that
he never received the re-certification papers mailed to him by respondent (Verified petition at 7
3). His second claim is that he never received notice that a date for the informal hearing had
been set ( i d ) . His third point is that when he spoke to a representative f o HPD on the phone,
he was told that the ânotesâ on HPDâs system said that he had been re-certified (id.).
Judicial review of an administrative agencyâs decision is limited to whether the decision
âwas made in violation of lawful procedure, was affected by an error of law or was arbitrary or
capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of
penalty or discipline imposedâ (CPLR 7803 ). In evaluating whether an administrative
agencyâs determination is arbitrary or capricious, courts consider whether the determination âis
without sound basis in reason and ... without regard to the factsâ (Mutter of Kenton Assoc. v
Division of Hous. & Community Renewal, 225 AD2d 349,349 [ 1st Dept 19961 citing Matter
of Pel1 v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,
Westchester Counv, 34 NY2d 222,231 [ 19741). Furthermore, the court may only consider
evidence that was before the administrative agency at the time of its determination (Mutter of
Weill v New York Ct Dept, ofEduc., 61 AD3d 407,408 [lSt
Dept 20091; Matter ofHLVAssocs.
v Aponte, 223 AD2d 362, 363 [ 1â Dept 19961). A termination entered on default cannot be
reviewed absent an application to the HPD to vacate it (see Matter ofYarbough v Franco,95
NY2d 342, 347 ). âA request to vacate a default affords the defaulting party an
opportunity to develop a factual record setting forth the reasons for the non-appearance and any
meritorious defenses that would justify re-opening the defaultâ (id. citing Gray v B. R. Trucking
Co., 59 NY2d 649, 650 [1983 I). Because judicial review is confined to the âfacts and record
adduced before the agency, absent an application to vacate, the court has no record upon which to
weigh the defaulting partyâs excuse and potential defenses (id.at 347).
HPD is authorized by federal law to administer the Section 8 voucher program and
therefore, is bound to âcomply with HUD [Department of Housing and Urban Development]
regulations and other HUD requirements for the programâ (24 CFR 982.52). The Code of
Federal Regulations and HPDâs Administrative Plan [covering the Section 8 voucher progam]
require that applicants must supply true and complete information in response to any request that
HPD determines is necessary in the administration of the program, including any requested
certification, release, or other documentation (24 CFR 982.55 1[b]; Verified answer 7 48; ex. B,
Administrative plan, ch. 7.1.2). Failure to comply with this rule is grounds for termination (id.).
Petitioner has failed to establish that HPDâs termination of the Section 8 subsidy w s
arbitrary and capricious. The affidavits and documentary evidence submitted by HPD show that
each required notice was sent to petitioner at the correct address. This proof of mailing is
suffxcientto create a rebuttable presumption of proper delivery and receipt, and petitionerâs
conclusory denial of receipt does not, in itself, rebut the presumption (see Northern v Hernandez,
17 AD3d 285,286 [ 1st Dept 20051; Stephanie R. Cooper, PC v Robert, 78 AD3d 572,573 [ lat
Dept 20101). Petitioner acknowledges that he received the termination notice and the notice of
HPDâs termination of his Section 8 rent subsidies after an informal hearing. The telephone
conversations mentioned in the petition between petitioner and HPD have not been described
with particularity as to when they took place, and in any case, they cannot be considered by this
court because they were not before the administrative agency when the determination to
terminate petitionerâs Section 8 rent subsidies was made (see Matter of Weill, 61 AD3d at 408).
The agency did consider his appeal request form, in which he claimed that he did not receive his
re-certification papers, and petitionerâs default in appearing at his informal hearing. Based on the
record adduced at the agency level, the court concludes that HPDâs determination to terminate
petitionerâs Section 8 rent subsidies was not arbitrary and capricious.
Accordingly, it is
ORDERED and ADJUDGED that the petition is denied in all respects and is dismissed in
This constitutes the decision, order and judgment of the court.
Dated: April 18, 2012
New York, New York
APR 2 4 2012
COUNTY CLERKS OFFICE