Matter of DuPont v Donovan

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[*1] Matter of DuPont v Donovan 2008 NY Slip Op 52282(U) [21 Misc 3d 1130(A)] Decided on October 27, 2008 Supreme Court, New York County Goodman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 17, 2008; it will not be published in the printed Official Reports.

Decided on October 27, 2008
Supreme Court, New York County

In the Matter of the Application of Maud DuPont, Petitioner,




Emily Jane Goodman, J.

Petitioner, her husband, and their daughter, a formerly homeless family, spent many years in New York City public shelters. They were part of the ever-increasing homeless population in this city.

Eventually they were declared eligible for a voucher for Section 8 housing, a federal program operated by the U.S. Department of Housing and Urban Development, pursuant to Title 24, Part 982 of the Code of Federal Regulations (CFR). However, the family, after moving into a building for the formerly homeless, is once again at risk of becoming homeless. Respondent City of New York Department of Housing Preservation and Development (HPD) denied continuation of the Section 8 voucher after finding the family eligible, because it determined that the family failed to provide access for a Housing Quality Standards (HQS) inspection, although there is no allegation that they purposefully refused to provide access.

Petitioner appealed and a hearing was held before Zachary Edinger, a hearing officer. It is undisputed that the family was notified that an inspection would take place on certain dates, but not at any specific time, other than 9:30am-4:30pm. It appears that because Ms. DuPont was at her newly obtained job at a hospital, her husband, who is disabled, waited for the inspector. At the hearing, Mr. DuPont testified that he was home [*2]the entire day of May 24, 2006, when the first inspection was scheduled, except for a short period of time when he went to a local store. For that period of time, he testified, he told the superintendent that he was expecting an inspector who should be advised that Mr. DuPont would return in a few minutes. Mr. DuPont testified that when he returned shortly thereafter, the superintendent told him that the inspector had come and gone. Mr. DuPont further testified that on the second scheduled inspection date, June 14, 2006, an inspector actually came and inspected the apartment. However, HPD records indicated that their inspector was Eric Campbell, and the individual who testified for the agency at the hearing, who knew Mr. Campbell, stated that his physical description was very different than the physical description of the individual described by Mr. DuPont. Mr. Campbell was not produced as a witness. Mr. DuPont also testified that another inspection was actually held on November 9, 2006, but the hearing officer disregarded that inspection because "no explanation was given regarding its nature, and it appears not to have been an HPD HQS inspection."

The hearing officer upheld the agency's decision to terminate Section 8 benefits, finding that although Mr. DuPont's testimony was not directly contradicted by the record, it was not supported and was not "entirely credible." The hearing officer stated however, that as to the June 14 inspection, "[i]t is possible that the Applicant was referring to a different type of inspection, possibly performed by another agency" and that "if his apartment was inspected, it was not done by Eric Campbell, and does not appear to have been a HPD HQS inspection."


24 CFR §982.305 requires that the local agency administering Section 8 (here, Respondent HPD) assure that the apartment receiving Section 8 pass an HQS inspection. 24 CFR §982.551 provides that the family seeking assistance "must allow [HPD] to inspect the unit at reasonable times after reasonable notice." 24 CFR §982.552 allows the agency to deny assistance if the family violates any of the obligations under 24 CFR §982.551, and allows the agency to consider: all relevant circumstances such as the seriousness of the case, the extent of the participation or culpability of individual family members, mitigating circumstances related to the disability of a family member, and the effects of the denial or termination of assistance on other family members who were not involved in the action or failure.[*3]

HPD's Administrative Plan notes that the purpose of the HQS inspection is to "ensure that each unit occupied by a voucher household is decent, safe and sanitary.'" However, under the Plan, if "two scheduled HQS appointments are missed, HPD will terminate the family from the program for failure to uphold their family voucher obligations."

Respondent HPD maintains that the hearing officer's decision is not arbitrary or capricious and is supported by substantial evidence necessitating transfer to the First Department. Petitioner maintains that the decision is arbitrary and capricious, that there is no allegation of misdeeds or wrongdoing, and that the penalty -the loss of a home under these facts- is so severe as to shock the conscience.

The Court finds that under the circumstances of this case, the penalty is so disproportionate to the offense that it shocks the conscience, and constitutes an abuse of discretion as a matter of law (see Pell v Board of Education, 34 NY2d 222 [1974]). Here, there are no allegations that Petitioner or her family were undesirable tenants or were guilty of any wrongdoing. There is no prejudice resulting from their actions which do not involve refusing or dis-allowing access, but merely not meeting with the inspector as expected. In other words, there is a minor technical violation of HPD's Administrative Plan.

While HPD relies on its Administrative Plan providing that the purpose of the HQS inspection is to assure that the apartment is safe and wholesome, it is obvious that this purpose was not the goal of the agency, since it has refused all invitations to schedule another inspection in the months that the matter has been before it and the Court. Thus, ironically, the agency has favored adherence to rigid, technical, procedures in complete disregard of the reasons and policies behind why the regulations were enacted in the first place, rather than to actually ascertain whether the environment is safe and wholesome.

If this were a criminal case, the court would surely be met with a motion to dismiss in the interests of justice. In criminal justice, there is a recognition that law must be tempered with justice. Accordingly, even a guilty individual, one who actually committed a crime, can, under Criminal Procedure Law § 210.40 have all charges dismissed where the interests of justice require it. Here, where the result is so extreme, so harsh, so destructive and devastating, such that the court finds it so disproportionate to the "crime" and shocking to the conscience, the decision constitutes an abuse of discretion as a matter of law (Pell v Board of Education, supra). Applying Pell and those cases following it, the First Department has held that even where [*4]a tenant committed "a very serious breach of respondent's rules" by accosting a housing authority representative during an inspection, the penalty of termination of housing benefits was too severe and shocked the conscience (see Peoples v New York City Housing Authority, 281 AD2d 259 [1st Dept 2001]). Similarly here, the penalty of denial of a Section 8 voucher, for a perceived technical breach of Respondent HPD's rules, is too severe.[FN1]

What happens here has little or no impact on the disgrace of homelessness, except for these individuals. But if they lose their Section 8 supplement and are evicted, they will be returned to the street, or, if they are "lucky," the shelter system.

Accordingly, it is hereby

ADJUDGED that the Petition is granted, without costs and disbursements; and it is further

ORDERED and ADJUDGED that the determination of the hearing officer, dated November 14, 2007, and the determinations of Respondent HPD, dated June 21, 2006 and November 15, 2007, to deny Section 8 assistance for failure to provide access on May 24, 2006 and June 14, 2006 are vacated and the matter is remanded to HPD for imposition of a lesser but not draconian penalty, if any; and it is further

ORDERED that HPD schedule a new inspection on written notice; and it is further

ORDERED that the agency shall continue to process Petitioner's application.

This constitutes the Decision, Order and Judgment of the [*5]Court.

Dated: October 27, 2008



J.S.C. Footnotes

Footnote 1:Although the family is required to provide access, the agency has not taken the position -nor could itthat the family violated federal or HPD regulations if they mistakenly believed that they provided access for a HQS inspection, by providing access to another agency inspector arriving on the same day. Thus, it was an error of law for the hearing officer to uphold the penalty of denial of benefits, while at the same time acknowledging that "[i]t is possible that the Applicant was referring to a different type of inspection, possibly performed by another agency" and that "if his apartment was inspected, it was not done by Eric Campbell, and does not appear to have been a HPD HQS inspection." Once the hearing officer determined that access might in fact have been provided -albeit to the wrong inspectorit was error for him to conclude that the family violated agency regulations.

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