Matter of Mayes v Hernandez

[*1] Matter of Mayes v Hernandez 2007 NY Slip Op 52351(U) [17 Misc 3d 1140(A)] Decided on December 6, 2007 Supreme Court, New York County Kornreich, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 6, 2007
Supreme Court, New York County

In the Matter of the Application of Priscilla Mayes, Petitioner,

against

Tino Hernandez, as Chairman of the New York City Housing Authority, and the New York City Housing Authority, Respondents.



402858/07

Shirley W. Kornreich, J.

Petitioner Priscilla Mayes ("petitioner" or "Mayes"), occupant of an apartment owned by respondent New York City Housing Authority ("respondent" or "Housing Authority"), brings this Article 78 proceeding and seeks a judgment: (a) annulling respondent's determination to terminate her tenancy and declaring this determination as arbitrary, capricious and an abuse of discretion; and (b) reinstating petitioner's tenancy with the condition that Edward Gibbs and Isaiah Brown be permanently excluded. Respondent opposes.

I.Background

The Housing Authority is a corporate governmental entity created to build and operate low-income housing in New York City. Since the federal government funds and regulates public housing, the Housing Authority must annually certify to the Department of Housing and Urban Development ("HUD") that it has admitted individuals and families in compliance with HUD regulations and the United States Housing Act ("Housing Act"). HUD mandates that the Housing Authority regularly monitor the composition and income of each family that has been admitted into public housing. Tenant families also have corresponding obligations to request respondent's approval before adding any family members as occupants of a unit, and to supply any information necessary when the Housing Authority conducts examinations of family income and composition. Federal regulations prohibit the Housing Authority from allowing individuals subject to lifetime registration as sex offenders under state law from residing in public housing due to the inherent dangers such individuals present to the community. In support of these regulations, the Housing Authority conducts background checks on public housing applicants to ascertain if they have criminal histories that would cause them to be ineligible for admission. Respondent's eligibility requirements authorize it "to exclude persons who, based upon their past [*2]behavior, might adversely affect the health, safety, or welfare of other tenants."

The Housing Act provides that : any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of the tenancy[.]

Pursuant to this provision, the Housing Authority may evict tenants who, inter alia: engage in criminal activity, fail to prevent household members or guests from engaging in criminal activity; fail to report all unit occupants; and allow unauthorized occupants to reside in their apartment. Housing Authority termination procedures first call for the Housing Manager to interview the tenant and attempt to resolve the issue. If there is no resolution, management then informs the tenant that his file will be forwarded to the central office for further review. Formal charges are then prepared and mailed to the tenant setting forth a date for an evidentiary hearing to be held before an impartial hearing officer. The notice of charges informs the tenant of his right to have an attorney or other representative present, to offer witnesses and documents in his defense, as well as the right to confront and cross-examine any witnesses who testifies against him. After the hearing, the hearing officer issues a written decision which is subject to final review and approval by the Housing Authority's Board.

If the termination-of-tenancy proceeding is based solely on the conduct of a third party, the tenant may be able to avoid eviction if she can demonstrate, through the introduction of credible evidence, that the offender has permanently left the tenant's apartment prior to the date of the hearing. Subsequently, if the hearing officer determines that the tenant has not committed any misconduct warranting termination and has permanently removed the offending party or parties from the household prior to the hearing, the hearing officer may place the tenant on administrative probation and permanently exclude any other offending party. However, if the tenant has herself committed any misconduct which warrants termination, than her tenancy may be terminated.

Petitioner was the lessee of apartment 8E located at 1343 Washington Avenue, Bronx, NY ("the Premises") for approximately ten (10) years until her tenancy was terminated in January 2007. Petitioner signed the most recent lease for the Premises in 2001. On her last income statement, she listed herself and her two sons Isaiah Brown ("Brown") and Kevin Deas as the only occupants of the Premises. Petitioner's lease states, inter alia, that "[i]t shall be the Tenant's obligation to assure that the Tenant, any member of the household; a guest, or another person under the Tenant's control, shall not engage in: (i) [a]ny criminal activity that threatens the health, safety, or right to peaceful enjoyment of the Development by other residents or by the Landlord's employees, or (ii) [a]ny violent or drug-related criminal activity on or off the Leased Premises or the Development, or (iii) [a]ny activity, on or off the [Premises] that results in a felony conviction."

On September 2, 2005, police executed a search warrant at the Premises based upon information that drugs were being sold there. Upon entry, officers observed Brown throw a bag of marijuana, which they later recovered, out of a window. Inside of petitioner's bedroom, the [*3]police discovered a bag containing approximately one ounce of cocaine and cash. Finally, officers discovered marijuana inside of Brown's bedroom closet as well as the kitchen freezer. Mayes, Brown, and petitioner's husband Edward Gibbs (who was unlawfully residing at the Premises), were all arrested and charged with criminal possession of cocaine and marijuana ("the September Arrest").

On September 13, 2005, Brown pleaded guilty to criminal possession of marijuana in the fourth degree (a class "A" misdemeanor), in exchange for youthful offender status, a sentence of probation and the return of some of the cash found during the seizure. On November 10, 2005, Gibbs pleaded guilty to criminal possession of a controlled substance in the fourth degree (a class "C" felony), in exchange for a five year prison sentence and five years of post-release supervision. During his allocution, Gibbs admitted that on September 2, 2005, he had possessed one ounce or more of cocaine in his bedroom inside the Premises and also that he was a predicate felon based upon his 1980 first-degree-rape conviction, for which he served an indeterminate 10 to 20 year prison sentence ("1980 Conviction"). On or about December 2, 2005, all criminal charges against Mayes were dismissed.

Following the September Arrest, respondent discovered that Gibbs had been residing at the Premises as an unauthorized occupant. Further inquiry revealed that Gibbs' 1980 Conviction resulted in his classification as a "Level Three" sex offender; his criminal history rendered him ineligible for public housing. This information, coupled with the subsequent pleas and convictions surrounding the September Arrest, resulted in the initiation of termination proceedings against petitioner.

On January 12, 2006, respondent formally notified Mayes of the "Termination of Tenancy Proceedings" against her on the grounds of non-desirability and breach of its rules and regulations by allowing Gibbs, a registered sex-offender, to reside in the Premises as an unauthorized occupant and by allowing Gibbs to possess a controlled substance. The Housing Authority amended these charges to include both Brown's and Gibbs' possession of drugs in the Premises.

Petitioner's formal hearing took place on November 15, 2006, before Hearing Officer Stuart Lawrence ("Lawrence"). Mayes testified that prior to the September Arrest, she lived at the Premises with Brown and allowed Gibbs to live there even though she knew he was a convicted sex offender because she was not aware that his presence violated respondent's rules and regulations or that he presented a danger to her, her neighbors, or members of respondent's staff. She admitted Gibbs was living at the Premises without permission but stated that he had not been living there since he was incarcerated in September 2005. She also stated that she was unaware of any illegal activity taking place inside the Premises, i.e., that Brown and Gibbs were selling drugs from the apartment. In addition, Mayes claimed that she never sold drugs from the Premises and that she had never been "arrested for selling and possessing drugs." She further explained that Brown had pleaded guilty to marijuana possession as a result of the September Arrest and that she "would agree to permanent exclusion of [her] son if it would mean being able to remain in [the Premises]."

On cross-examination, when asked why she never requested permission for Gibbs to become a lawful tenant, Mayes stated that when she inquired as to this issue, the housing assistant told her that "because of his felonies" he could never legally be added to the lease. [*4]Petitioner next stated that she never suspected that any drug activity was taking place inside the Premises. Specifically, she claimed she never looked inside of Brown's closet and never noticed any marijuana in the freezer. Regarding the cocaine found in her bedroom, Mayes testified that no narcotics were out where she could see them and that she never had any reason to suspect that Gibbs was keeping drugs in the Premises. At no point during the hearing or in her post-hearing memorandum of law did petitioner object to the admissibility of any evidence, raise any due process concerns or claim that any of Lawrence's actions or conduct were improper. In fact, the only argument raised by Mayes in her post-hearing memorandum was that her tenancy should not be terminated because respondent violated its own termination procedures. Specifically, petitioner claimed that "[e]ven though she allowed [Brown and Gibbs] to reside in her apartment, [Brown and Gibbs] are the offending parties and the Termination of Tenancy Procedures permits permanent exclusion of them both instead of terminating [Mayes'] tenancy." Therefore, Mayes argued she should receive probation and be permitted to remain in occupancy of the Premises.

On December 18, 2006, Hearing Officer Lawrence issued his decision finding the tenancy non-desirable and recommending termination. He found Mayes' testimony that she did not know inviting a "Level Three Sex Offender" into her home was forbidden "persuasive," and therefore, dismissed the charge of non-desirability based upon Gibbs sex-offender status. However, Lawrence sustained the remaining charges against petitioner stating:

[Mayes'] argument that she did not participate in the drug activity going on within herapartment is irrelevant. It was she who invited, without any authorization, her husband Edward Gibbs to live with her and it was she who was responsible for the supervision of her son [Brown], then a minor. Her willful, negligent, or indifferent attitude toward the illicit behavior in her home remains her responsibility. This tenancy is not desirable.

On January 10, 2007, the Housing Authority's Board affirmed Hearing Officer Lawrence's ruling and terminated petitioner's tenancy for non-desirability.

II.Conclusions of Law

A court reviewing an Article 78 proceeding must judge the propriety of an administrative action solely on the reasons cited by the administration. Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758 (1991). Such an action must be upheld unless it "shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law." Featherstone v. Franco, 95 NY2d 550, 554 (2000). CPLR section 7803 states that the following questions may be raised in an Article 78 proceeding: "Whether a determination was made in violation of lawful procedure, was effected by error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed."

Petitioner argues that respondent's decision to terminate her tenancy was arbitrary and capricious. Specifically, petitioner asserts that since the offending members of the household were Brown and Gibbs, respondent's termination procedures require it to place her on "probation" or give her status as a tenant either "eligible" or "eligible subject to permanent exclusion of one or more persons in the household." This argument is of no avail.

Pursuant to respondent's Termination of Tenancy Procedures, grounds to terminate a tenancy include non-desirability, which is defined, inter alia, as "conduct or behavior of the [*5]tenant or any person occupying the premises of the tenant which constitutes...a danger to the health and safety of the tenant's neighbors." Gibson v. Blackburne, 201 AD2d 379 (1st Dept 1994). In his decision, Lawrence found it "was she [Mayes] who was responsible for the supervision of her son [Brown], then a minor. Her willful, negligent, or indifferent attitude toward the illicit behavior in her home remains her responsibility." Thus, Lawrence found that petitioner was responsible for the sale and possession of drugs inside of the Premises and that her conduct, not simply the conduct of those living with her, represented a danger to the health and safety of her neighbors. See Gibson, 201 A.D2d at 380 (use of petitioner's apartment as base for drug activity represented danger to health and safety of other tenants who lived in same public housing community); Blanco v. Popolizio, 190 AD2d 554 (1st Dept 1993) (non-desirability based upon the conduct of either tenant or person occupying tenant's apartment clearly includes sale of drugs inside apartment by unauthorized occupant).

Moreover, the fact that Mayes claims of being unaware that drugs were being sold inside of the Premises is not determinative of the issue of non-desirability. See Satterwhite v. Hernandez, 16 AD3d 131 (1st Dept 2005) ("propriety of respondents' determination terminating petitioner's tenancy [on the ground of non-desirability] did not depend on whether petitioner knew that drugs were being stored and sold from her apartment"); Harris v. Hernandez, 30 AD3d 269 (1st Dept 2006) ("[n]o basis exists to disturb the hearing officer's findings [of non-desirability] discrediting petitioner's testimony that she was unaware that drugs were being stored in and sold from her apartment"). Her statements to Lawrence that she would agree to permanently remove Brown from the Premises also have no bearing on the decision to terminate her tenancy. See Woody v. Franco, 260 AD2d 186 (1st Dept 1999) (determination of non-desirability based upon sale of drugs inside tenant's apartment by her son upheld despite her claim that she was unaware drugs were being sold and irrespective of whether or not her son had permanently left apartment). Consequently, since the termination of Mayes' tenancy was based upon her own conduct, not just that of Brown and Gibbs, the Housing Authority was not obliged to offer her probation. See Satterwhite, 16 AD3d at 132; Walker v. Franco, 96 NY2d 891 (2001). Petitioner's remaining arguments have been raised for the first time before this court need not be addressed. Franco, 95 NY2d at 554 ("judicial review of administrative determinations is confined to the facts and record adduced before the agency"). The termination of petitioner's tenancy was not arbitrary and capricious. See Harris, 30 AD3d at 269; Satterwhite, 16 AD3d at 131; Woody, 260 AD2d at 186; Blanco, 190 AD2d at 556; Gibson, 201 AD2d at 380. Accordingly, it is

ORDERED that the application by petitioners seeking to vacate and annul the determination by respondents is denied and the proceeding is dismissed.

ENTER

DATE: December 6, 2007___________________________________

New York, NYJ.S.C.