Matter of Dubose v New York City Hous. Auth.
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Matter of Dubose v New York City Hous. Auth. 2012 NY Slip Op 32421(U) September 20, 2012 Supreme Court, New York County Docket Number: 402798/11 Judge: Arlene P. Bluth 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. lNEDON912112012 [* 1] I Dated: , , , Check one: qID/p , ,;, FINAL DlSPO$lTlON Check if appropriate; 0 DO NOT PQST , ' ~ , , J. $ C. . NON-FINAL DISPO$lTION REFERENCE [* 2] SUPREME COUKT OF T H E STATE OF N Y COUNTY OF NEW YOKK: PART 4 In the Matter of the Application of Allen Dubose, Petitioner, Index No.: 402798/1 I DECISION, ORDER AND JUDGMENT Preseut: HON. ARLENE P. BLlJTH -against- N~~ york City Housing Authority, UNFILED JUDGMENT This judgment has not been entered by the County Clerk Respond4nd notice of entry cannot be served based hereon. ,To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk s k k (Room 141B). It is OIWEIIED and ADJUDGED the petition is denicd and tlic proceeding is dismissed. Petitioner seeks to rcversc rcspondeiit New York City Housing Authority s (NYCllA s) June 29, 20 1 1 Detcrniination of Status which upheld the hearing officcr s June 14, 201 1 decision to terminale his tcnancy on the grounds that the penalty of temi inationwas excessive. Specifically, petitioner contcnds that the hearing ollicer s decision contains assumptions and conclusions unsupported by the record and is scciningly motivated by bias . Respondent NYCHA opposcs tlic petition and contcnds that it actcd rcasonably, lawfully and properly in terminating petitioner s tenancy bascd on petitioner s undesirability, and that the penalty of tcrniination should not be disturbed. Becausc this petition seeks to review only the penalty imposed, and does not raise issues of substantial cvidcnce, this Court shall address the issues raised and need not trariskr the matter to the Appellate Division. See Mutter ofKerney 17 Hemundez, 60 AD3d 544, 874 NYS2d 804 (1 st Dept 2009). Page 1 of 6 [* 3] Applicable law and procedurcs regardiiiE criminal activity Until his tenancy was terminated, petitioner was the tenant of rccord of apartment IC at 65 East 99t Strcet in Manhattan, which is part of a NYCHA development. Because NYCHA rcccivcs federal funds, it inlist cornply with the federal rules and regulations disscmiiiatcd through the US Departmcnt of Housing and Urban Development. I hcsc federal regulations are incorporated into the terms and conditions of NYCI IA s leases, and speciiically pctitioner s lease, under the heading Tenant Obligations . The lease prohibits tenants, members of the tcnant s household, guests, or other pcrsons under tenant s control from engaging in crimjnal activity that thrcateiis the health, safcty or right l o peaccful enjoyment of tlic Developmcnt by other residcnts or [alny violent or d r u g d a t e d criminal activity on or off tlic Ideased Prcniiscs or the Devclopment , and rcquircs tenants to act in a manner condiicive to maintaining the Development in a dcccnt, safe and sanitary condition (see exh A to answcr, para. 12). Fedcral regulations empower NYCI IA to terminate a tenancy if it deterrnincs that a tenant, any member of a tenant s household, a guest or another person under the tenant s coiitrol has crigaged in criminal behavior, rcgardless of wliethcr the person was amested or convicted for such activity and without satisfying the standard of proof used for a criminal co~iviction. 24 CFR 5 966.4( 1)(5)(ii i). Page 2 of 6 [* 4] C h a r p aminst petitioner The police cxcculed a search warrant in petitioner s apartment on March 4, 2010, arrcsted petitioiicr and recovered, anioiig other things, one gun, one box of bullets, two bags of cocaine, two bags of marijuana, onc scale, lactose cutting agent, one strainer and $887 in cash. A hearing was held bcforc hearing officer Ester l omicic-Hines on April 7, 201 1 and May 12, 201 1 on the cliarges of pctitioner s non-desirability based on criminal activity in his apartment relating to the March 4, 20 10 arrest. The hearing of licer hcard tcstirnony and reviewed docurnentaiy cvidence from N Y PD Detectivc McBrearty which showed that cocaine and marijuana were found on petitioncr s bed, along with a loadcd firearm which was later determined to be inoperable (although nothing about . the appearance ofthe gun would indicate that it was in fact inoperable). Petitioncr admittcd the charges and requestcd a mitigated sanction based on the fact hc is a whcclchair-bound paraplegic who needs a handicapped-accessi ble apartment in close proximity to the hospitals where he receives treatment. Thc hearing officer considercd petitioner s personal circumstances and the testimony he presented that he has a low likelihood of reoffending, but concluded that his criminal conduct poses a serious threat to the othcr tenants, as petitioner, a lornier mcniber ol the tenant patrol, should be have known. The hearing ofiicer also found that petitioner did not voluntarily participate in a drug trcatinent program, and that it was premature to coiiclude that hc would not reoffend as petitioner had, at the tinic of the hearing, had been probation only six months of a five-year term imposed by the Criminal Court. Page 3 of 6 011 I [* 5] Standard of rcview In reviewing an administrative agency s determination as to whether it is arbitrary and capricious under CPLR Article 78, the test is whether the determination is without sound basis in rcason and ... without regard to the facts (Matter oJ Pell v Board of Educulion, 34 NY2d 222,231 [ 1 9741). Moreover, the determination of an administrative agency, acting pursuant to its authority and within the orbit of its expertise, is entitled lo deference, and cven ildil ferent conclusio~is could bc reached as a result of conflicting evidence, ; court may not substitute its 1 judgment for that of lhe agency when the agency s determination is supported by the record (Mutter qf Purtncrshiy 92 LP & Mdg. Mgt. Co., h n c . v Slate qf New York Div. of Hous.& C onmuni/y Rencwul, 46 AD3d 425,429 [lsl Dept20071, u f d 1 1 NY3d 859 120081). The Appellate Division, First Deparlrnent routinely has upheld determinatioiis to terminate tenancies for illegal drug activity when the charges are supported by substantial evidence. See Rodriguez v N e w York L ity Hous. Auth., 84 AD3d 630 (1st Dept 201 1). Based on its review of the rccord, and petitioner s admitting to the charges, the Court finds that a rational basis exists for NYCIIA s decision to tcrniinatc petitioner s tenancy, and thus that decision cannot be disturbed by this Court. Contrary to being arbitrary and capricious, hcrc, since the illegal drug activity in the apartinelit was admitted by pelilioner s plea, NYCI-IA s decision to terminate petitioner s tenancy is in kceping with its statutory obligation to adhere to its proccdurcs for the safety and well-being of all public housing tenants. Contrary to petitioner s argument, thc licaring olficer did not improperly substituted her Page 4 of 6 [* 6] own opinion for that of a trial expert simply bccause the hearing officer made a iinding that differs from tlic expert s testimony; a trier of fact may accept or reject the opinion of an expert just as he or she may that of-a layperson. See Currie v Town oj Duvenport, 37 NY2d 472, 476 (1975). Moreover, pctitioner, although conclusorily alleging bias, has hiled to support that claim with anything but apparently [the hcaring off?cer] made thc assumption that a criminal [will not bc rchabilitated until his probation is over] suggests pcrsonal bias played a role in her decision . Tlic mcre f x t that the hearing officcr ruled against petitioner does not, standing alone, establish bias, and petitioner has not sct forth any evidence of bias. See Poyster v Gourd, 26 AD3d 503, 505 (2006); Zruke v New Yurk Cily Dep t ojEduc,, 41 AD3d I 1 8 (1 Dept 2007). Finding a tenanl who admitted to crirncs involving drugs and guns on NYCl 1A property undesirable and being unwilling to impose probation does not equal bias. Finally, for a reviewing court to overturn a pcnalty imposed by an adiiiiiiistrative agency, the punishment must be so disproportionate to the offcnse as to be shocking to one s sense of fairness . Matter qf PeIl v Hoard qf Education, 34 NY2d 222,211 (1 974). Here, where the prcsence o l drugs and a weapon poscs a threat to conmiunity health and safcty, termination of petitioncr s tenancy is not so disproportionatc to his offense as to shock one s sense of fairness. See Matter qfZirnmerrnnn v New Y w k (- ity Hous. Auth., 84 A.D.3d 526 (1st Dept 201 1) (tcrnmination o1 tenancy not shocking to one s sense of fairncss where drugs, drug paraphernalia, and ammunition found in petitioner s apartment and petitioner violated lease ternis by permitting such activity to occur there); Harris v Hernandez, 30 A.D.3d 269 (1st Dept 2006) (termination of petitioncr s teiiancy on basis of non-desirability rationally supported by evidencc of controlled buys oMlegal drugs from petitioncr, execution of search warrant on basis of controlled buys, and Page 5 of 6 [* 7] discoveiy of illegal drugs and paraphernalia in apartmcnt and docs not shock conscience). NYCHA has a statutory obligation to protect its tenants from illegal drug activity in the public housing community. Contrary to being arbitrary and capricious, NYCHA's decision to terminate petitioner's tciiaiicy is in kcepiiig with its statutorily mandated obligation to protect NYCHA's law-abiding rcsidents. Accordingly, it is ORDERED and AUJUDGED that this 'Article 78 petition is dcnied and the proceeding is dismissed. Any stays are hereby vacated. This is the Decision, Order and Judgment of thc Court. Dated: Scptem hcr 20,20 12 New York, New York HON. ARLENE P. BLUTH, JSC Page 6 of 6
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