Matter of Wilens v New York City Hous. Auth.

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Matter of Wilens v New York City Hous. Auth. 2012 NY Slip Op 31824(U) July 11, 2012 Supreme Court, New York County Docket Number: 100858/12 Judge: Donna M. Mills 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] EDON711312@12 Slll'l<EME C'OUli'l' O F T H E S'I'AI'EO F NICW YOKK-NEW YORK COUNTY PATU' PRESENT : DONNA M. MILLS 58 Justice I 'et i 1ioner, For a Judgment ~ L I ~ S U ;t~ I Article 78 of thc c'ivil Praclicc o I~ Law and liulcs, MOTION I L T>A -V- MOTIONSr:,y.No.00 I N E W Y O l i K C'I'J'Y HOUSING AUTHORITY, MOTION VAL No. I<esponde111. . - .- . _ Notice ol' MotioidOrdcr to Show Cause-A ffidavits Exhibits .... / Upon the foregoing papcrs, it is ordcred that this motion is: DIX'IDCT) I AC'C'OIIDANC'I: N Wl'll I ATTACHED MEMORANLIIJM UbX'lS#%. Ilatcd : Check o11c: ?/ F'TNAL I31SPOSI'I'ION __ N O N - F I N AI, I ) S POS 1'1'10N I [* 2] SI JPREME COURT OF 'I'J I E STATE 01; NEW YORK C'O1JN'I'Y OF N E W YOICK: TAS P A K I ' 5 8 Petitioner, For a .Iudgment pursuant to Articlc 78 of the Civil Practice Law and liulcs. Index No. 100858/12 -against- In this Articlc 78 proceeding, petitioner seeks a revcrsal of respondent's dcterniination to suspend its subsidy with respec1 to the premises located at Apartment PI-I, 2867 13riggs Avenue, Bronx, New York. Petitioner is tlic landlord ol' the al'oresaid prcniises. He entered into n written agreement with rcspondeiit wherein rcspondcnt was to subsidize n portion of the rent for petitioner's tenanl. For the period of February 1, 20 1 1 to May 3 1, 20 1 1 , respondent was supposed lo pay petitioner a subsidy in tlic amomt ol'$5,788.00. For thc period ol' July 1, 20 I 1 to Novciiibcr 30, 201 1 , respondent was supposed to pay petitioner a subsidy in [he amount of $7,235.00. Petitioner brought this proceeding to recover subsidies for the February to May period and the July to November period. 'I'hc parties have subsequently ngrccd that the subsidy for the b'ebruaiy to May period shall be paid, rendering that portion of the proceeding moot. The second period rcmains in disputc. Respoiidciit deiknds its detcrmination to deny peli tioncr the subsidy for that period, [* 3] claiming that pcli tioncr failed to meet Housing Quality Standards inspections of thc premises in April 201 1 and Septembcr 20 1 1. According to respondent, petitioncr s failure lo meet those standards prcvcntcd tlie payment of thc subsidy. Respoiideiit claims that the staircase at tlic prcmiscs was rotted and damagcd, a structural hazard. The nonpaymcnt of the subsidy lor the second pcriod was allegedly related to respondent s inspection of the staircase 011 September 1 4, 201 1, Respondent stated that it warned petitioner olthe negative results ofthis inspection. Thc subsidy was resumed afler a positive inspection in January 20 12. Respondent argues that its deteniiiiiatioii cannot be rcverscd by this court unless rcspondcnt had an irrational basis in making its dctcrniiiiation. Iicspondent asserts that it acted ratioiially i n denying the subsidy, based on petitioner s purported violation of housing standards. In an arncndcd reply, pctjtioncr disputes respondcnt s argumcnt, stating that he was riot inlornied ol thc results of the September 14 inspcction. Pctitioner also states that he was not ini oiined o l the April inspection until August 3 I 201 1. This apparently contradicts thc ~ statements in the original pcti tion, which stated that pelilioner received notice of that inspcctiori in April. Thereafkr, petitioner made the ricccssary repairs and notified respondent via a Certificatc of Completed R.epairs signed by petitioner. Moreover, petitioner disputes that the staircase was defkclive in Scptcniber 201 I . Pctitioner submits, as cvidcncc, photographs of the staircase provided by his marlaging agent. Pctitioncr also subiiiits an affidavit from his tenant, who avers that the staircase was repaircd in August 201 1 . Petitioner c l a i m that he was informcd via a tclephoiie call that tlie subsidy would bc rcinstatcd. A transmitted copy o l a pai-t of a telcphonc coiivcrsatioii is submittcd. Petitioner sccks a reversal of the delermination on the ground that it was arbitraiy arid capricious. 2 [* 4] In reply, rcspondeiit questions the evidentiary value of the phone transcript, claiming it is not daled. Respondent statcs that the transcript may be referring to the rcinstalenient oi a subsidy payment for May 201 1, prior to the h t inspection, and not related to tlic current disputc. Respondent argues that the photograplis arc not dated and therelore, arc inadequate proof.. Kcspondent also argiics that the alXdavit of tlic tcnarit is probably self-serving, when conipared with its inspector s lindings. It is settlccl that in tlicsc matters, CLL [tlhe courts cannot iiiterfere unless therc is 110rational basis lor the exercise o r discretion by tlic administrative agency. It is well setlled that a court may iiot substilute ils judgiiieiit for that of tlic board or body it reviews unless the decision uiidcr rcvicw is arbitraiy and uiircasoiiable and constitutes an abuse of discretion. Mdter of Arrochn 17 Bourd of Ediication of C ifyqj N Y , 93 NY2d 36 1, 363 ( 1999), quoting M d t w of Pel1 v Hoard qf Educutivn of linion Free ,Ychool District No. I of Towns of ,Scursdde & Mmicaoneck, Westchestcr C ozinty , 34 NY2d 222, 231-32 (1974). Ifan agciicy fails to lbllow its own rules and regulations in rcndcring a dctcrmination, a determination can hc dccmed arbitrary and capricious. See Mcxflcr o j brick v Ucrlioi4, 56 NY2d 777, 778 (1 982). The court mils1 uphold tlic dctcrniinatioii. Petitioner s prool attesting to the repaired condition of the subject staircase prior to the Scptcmbcr inspection is not suhstantiatcd. Whcrcas, if petitioner coiild demonstrate that rcspondciit failed to notify him of tlic results o l the Scpteriiber inspection, this could show that respondent kiiled to Jbllow its own rules with respcct to proper notice. However, in rcspoiisc to pctjtioner s asscrtion, respondent submits rccords h a t indicate its tiiiiely service to petitioner of that iiiformation. Without any other evideiicc to the contrary, rcspondcnt s actions were not irralional, and the cleterinination sliould not be reverscd. 3 [* 5] Accordingly, it is ADJUDGED that thc petition is denied and the proceeding is dismissed, with costs aid disburscmcnts to rcspondent. DATED 7 111 }I 7 4

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