Matter of Delvalle v New York City Hous. Auth.
Annotate this CaseDecided on November 4, 2004
Supreme Court, New York County
In the Matter of the Application of OLIMPIA SANTOS DELVALLE, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules
against
The New York City Housing Authority, Respondent.
113664/04
Lewis Bart Stone, J.
This is a proceeding commenced pro se by Olimpia Santos Delvalle ("Delvalle") pursuant to Article 78 of the Civil Practice Law and Rules ("Article 78") against the New York City Housing Authority ("NYCHA") to challenge a determination of NYCHA to terminate Delvalle's tenancy of her apartment, Apartment 2F (the "Apartment") at 426 West 27th Street, New York, NY, a building owned and operated by NYCHA.
NYCHA, following notice to Delvalle, giving Delvalle an opportunity to be heard, held a hearing to terminate Delvalle's tenancy on the grounds of "Non-desirability, Breach of Rules and Regulations, and Violation of Rule 2 (v) and Section 2(e) of the Tenant Rules and Regulations." At the hearing, held on December 16, 2003, Delvalle appeared and was represented by counsel. Following the hearing, the hearing officer issued a written decision on February 12, 2004, sustaining the charges against Delvalle, by reason of her drug dealing (which had resulted in a plea of guilty and a sentence of three to six years) and other reasons, and finding an absence of mitigating factors On March 3, 2004, having adopted the findings of the hearing examiner, NYCHA terminated Delvalle's tenancy. It is this termination which this Article 78 proceeding seeks to review.
This Article 78 proceeding, in addition, comes with substantial procedural baggage, which NYCHA urges presents grounds for its dismissal before the merits need be considered. The first of these grounds is that Delvalle had submitted an earlier petition under Article 78 which had been dismissed. A second ground is that of inadequate service of papers in this proceeding upon NYCHA.
In considering this petition, the Court is aware that as a pro se petitioner, the Court has an obligation to consider Delvalle's claims and supposed failures to comply with complex litigation rules in a fair and favorable light to her. The res judicata claim, for instance, is based on a decision by the Honorable Edward F. Lehner's dismissal on June 3, 2004, of Delvalle's substantially similar petition. The dismissal was occasioned by the failure of both Delvalle and NYCHA to appear on such date, the date the court had fixed. Both parties had entered into a prior stipulation to set the [*2]return date of June 15, 2004, and NYCHA has acknowledge that they were unaware of the court setting the earlier date. Although as a result, it may have been more appropriate for Delvalle to have sought to reopen the dismissal, rather than starting this new proceeding, NYCHA's objection to this proceeding on res judicata basis is certainly a technical objection under the circumstances. Similarly, NYCHA's objection to service and notice may well be also an appropriate technical defect, notwithstanding that NYCHA completed submission in opposition to Delvalle's petition shows a full appreciation of all claims and no prejudice to their ability to oppose her claims on the merits.
Because this Court would reach the same relief sought by NYCHA on its jurisdictional objections as it would on the merits [FN1] to dismiss the petitionthe Court will, for the purposes of resolving this matter, pass over the jurisdictional issues and address the merits.
The principle basis for termination of Delvalle's tenancy was based on her drug-related criminal activities. Her order to show cause requests the vacation of the termination because she had "been living here since '68. I feel very comfortable where I live, I know every body, people know me and get along with me." This is hardly a reason cognizable under Article 78 to reverse the NYCHA decision.
NYCHA, however, addressed in its response, a somewhat better presented argument made by Delvalle's counsel who represented her in the earlier petition which had been dismissed by Justice Lehner, i.e., that her drug transgressions for which she was arrested did not occur in the apartment but occurred outside of the building. Although Delvalle does not herself raise such argument in this petition, if she did, it would not have been a basis for setting aside the termination order of NYCHA. Under the Federal Housing Act 42 USC §1437 d(1)(6), drug related criminal activity, on or off the premises, by a public housing tenant, constitutes grounds for termination of the tenancy. This rule has been held constitutional and a valid basis for the termination of such a tenancy. See Department of Housing and Urban Development v. Rucker, 535 US 125 (2002). Federal Housing and Urban Development regulations obligate tenants in public housing to refrain from "drug-related criminal activity on or off the premises." 24 CFR §966.4 (f)(12)(i)(B). Delvalle and NYCHA are bound by these provisions. It is for a violation of these provisions that Delvalle's tenancy was terminated.
Accordingly, this petition (even under an overbroad interpretation or incorporation of Delvalle's claims) presents no basis for a challenge to the decision of NYCHA.
The petition is therefore dismissed.
This constitutes the Decision and Order of the Court.
DATED:November 4, 2004
NEW YORK, NEW YORK
[*3]Hon. Lewis Bart Stone
Justice of the Supreme Court
Footnotes
Footnote 1:Interestingly, NYCHA failed to assert a meritorious defense of Statute of Limitations, which requires an Article 78 proceeding to be commenced within four months of the administrative action challenged. Here, the NYCHA determination was made on February 12, 2004, and this proceeding was commenced by Order to Show Cause issued on October 5, 2004, almost eight months later.
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