Matter of Adams v New York City Hous. Auth.
Annotate this CaseDecided on November 30, 2007
Supreme Court, Kings County
In the Matter of the Application of Sharon Adams, Petitioner,
against
New York City Housing Authority, Respondent,
35009/05
Francois A. Rivera, J.
Petitioner moves by order to show cause, dated June 6, 2007, for an order directing a new hearing with the New York City Housing Authority (NYCHA), and a stay of eviction until a new hearing is completed. NYCHA opposes the order to show cause. On July 6, 2007, this court ordered a stay of eviction barring the Housing Authority from evicting the petitioner until a decision is rendered in the instant order to show cause.
In November 2005, petitioner commenced an Article 78 proceeding, under motion sequence number two, seeking review of the August 3, 2005 determination by NYCHA to terminate petitioner's public housing tenancy based on the claim that she illegally sublet her NYCHA apartment.
In a decision by Part 52 of this court, dated November 2, 2006, the Article 78 matter was transferred to the Appellate Division, Second Department on the basis that the sole question presented was whether the hearing officer's determination was supported by substantial evidence (Adams v New York City Housing Authority, 13 Misc 3d 1233 (A) [Kings County, 2006]).
The court made the following findings of fact in the aforementioned decision dated November 2, 2006:
Petitioner was the tenant of record at 131 Cumberland Walk, Apt. 5C, Brooklyn, New York. 131 Cumberland Walk is a residential building in the NYCHA's Whitman Houses development. Petitioner signed the lease in 1997 and that the family composition consisted of petitioner, her sister, Rondelle Adams, and her brother Samuel Adams. On May 10, 2005 and June 7, 2005, an administrative hearing was conducted to determine whether petitioner improperly sublet her apartment to Jamel Lee. William Green, former manager of the Whitman Houses development, Isabella Lee, a tenant at the Whitman Houses development, and Jamel Lee, testified at the administrative hearing. After the administrative hearing, the Housing Authority terminated petitioner's tenancy finding that she illegally sublet her apartment.
On July 21, 2004, the manager of Whitman Houses, William Green, met with petitioner to advise her that the Housing Authority would be initiating administrative action against her for subleasing her apartment to Jamel Lee. Petitioner claimed that Jamel Lee was her boyfriend and that although he sometimes stayed in the apartment, he did not live there. On or about December 23, 2004, the Housing Authority served petitioner with a Notice of Specification of Charges [*2]alleging she improperly assigned or transferred possession of her apartment, and breached rules and regulations by , among other things, violating her lease by failing to occupy the apartment and allowing unauthorized occupants to take up residence therein. In a letter dated April 22, 2005, the Housing Authority amended the charges to allege, among other things, that petitioner filed false instruments with the Housing Authority, misstated a material fact bearing upon eligibility for continued occupancy, and failed to furnish complete income verification information. In a May 12, 2005 letter, the Housing Authority again amended the charges to allege that petitioner had filed false instruments since June 2003 and had improperly sublet the apartment since May 2001.
On May 10, 2005, the administrative hearing commenced and continued on June 7, 2005. Petitioner was represented by an attorney and denied the charges. Jamel Lee, William Green, Isabella Lee (Jamel Lee's mother) testified for the Housing Authority. Lasurma Pippins, Rondell Adams, and the petitioner, Sharon Adams testified for the petitioner. After hearing the testimony and reviewing the evidence, the hearing officer upheld the charges indicating that the witnesses for the Housing Authority were wholly credible.
On August 3, 2005, the Members of the Housing Authority Board adopted the hearing officer's decision, issuing a Determination of Status terminating petitioner's tenancy.
Jamel Lee commenced an action for an illegal lockout in the New York City Civil Court, Housing Part after petitioner changed the locks. Both Mr. Lee and Ms. Adams testified. The New York City Civil Court, Housing Part found Mr. Lee to be credible and Ms. Adams' testimony not credible. In a decision on July 26, 2004, the Housing Court determined that Sharon Adams illegally sublet her apartment to Jamel Lee and awarded possession of the apartment back to Mr. Lee. The finding by the Housing Court was part of the record in the Administrative Hearing.
By the instant order to show cause, petitioner is seeking an order directing either a re-opening of the prior hearing or de novo hearing to review the aforementioned August 3, 2005 determination by NYCHA to terminate petitioner's public housing.
Motion Papers
Petitioner's order to show cause consists of an affidavit in support and eighteen attached exhibits. The first unmarked exhibit was a cover letter from petitioner. It is followed by a Stipulation of Settlement from Housing Court dated November 8, 2004 marked exhibit one. Exhibit two, three, and four are separate certificates of adoption. Exhibit five and six are petitioner's credit reports. Exhibit seven, eight, and nine are petitioner's account statements from Discover Financial Services, Verizon, and Cingular. Exhibit ten is a letter from Omni Credit Services of Florida, Inc. to Jamel Lee. Exhibit eleven is a Sprint PCS billing statement for Jamel Lee. Exhibit twelve is a notice of conviction and license suspension to Jamel Lee, dated April 19, 2001. Exhibit thirteen is a check stub from the New York State Department of Taxation and Finance to Jamel Lee, dated February 13, 2004. Exhibit fourteen is another correspondence between the New York Department of Taxation and Finance and Jamel Lee. Exhibit fifteen is a statement from the City of New York Deferred Compensation Plan to Jamel Lee for the period of April 1, 2001 to June 30, 2001. Exhibit seventeen (no exhibit marked "16") is another statement [*3]from Deferred Compensation for the period of October 1, 2002 to December 31, 2002. Exhibit eighteen is another Sprint PCS billing statement to Jamel Lee.
Law and Application
McKinney's CPLR Rule 2214 provides as follows: Motion papers; service; time. (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.
Contrary to the requirements of CPLR §2214, plaintiff did not set forth the procedural vehicle used to bring the instant order to show. The supporting affidavit and exhibits from petitioner, however, describes the action as a request for an order from the court granting her a new administrative hearing based on new evidence.
However, for a court to consider evidentiary submissions as to circumstances after the NYCHA made its determination would violate a fundamental tenet of a CPLR §78 review; namely, that "judicial review of administrative determinations is confined to the facts and record adduced before the agency" (In the Matter of Featherstone v Franco, 95 NY2d 550 [2000];
In this court's November 2, 2006 decision, it was found that pursuant to CPLR §7804(g), when the issue of substantial evidence is raised, the Supreme Court must apply a two step analysis that may result in a transfer of the case to the Appellate Division. Since there was no objection that could terminate the proceedings, this court transferred the entire case to the Appellate Division.
Although petitioner asks this court to consider her exhibits and grant her a new administrative hearing, the court does not have jurisdiction to review and determine the request. Once transferred, this proceeding was no longer pending in the Supreme Court (see Quinn v Werner, 96 AD2d 1079, [2nd Dept. 1983]). Transfer of substantial evidence cases to the Appellate Division is premised on the fact that in such cases there has already been a plenary hearing before an administrative agency, giving rise to a full record, and that review of that record should be the responsibility of an Appellate-level court. This procedural arrangement is desirable from the standpoint of effective court administration and judicial economy." (Scott v Wetzler, 155 Misc 2d 910 [New York County, 1992]; citing the Office of Court Administration , memorandum in support of S. 2930, 1990 McKinney's Session Laws of NY, at 2935.)
The role of this court in its examination of an administrative determination is limited. On November 2, 2006, the court determined that petitioner's Article 78 proceeding was based on whether the New York City Housing Court's determination was based on substantial evidence. That matter was properly transferred to the Appellate Division. This court's function is not to consider whether petitioner has new evidence to re-open an administrative hearing. That request should be made to the administrative body that conducted the hearing.
Petitioner's order to show cause is denied.
The foregoing constitutes the decision and order of the court.
_______________________________
J.S.C.
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