Millennium Hills Hous. Dev. Fund Corp. v Patterson

[*1] Millennium Hills Hous. Dev. Fund Corp. v Patterson 2009 NY Slip Op 52088(U) [25 Misc 3d 1214(A)] Decided on October 16, 2009 District Court Of Suffolk County, Third District Hackeling, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 16, 2009
District Court of Suffolk County, Third District

Millennium Hills Housing Development Fund Corp., Petitioner

against

Adrianne L. Patterson, Respondent



HULT 165-09



Vitale and Levitt, P.C.

Paul E. Levitt, Esq.

Attorneys for Petitioner

445 Broad Hollow Road, Suite 124

Melville, New York 11747

Adrianne L. Patterson

Pro-se Respondent

C. Stephen Hackeling, J.

Millennium Hills Housing Development Fund Corp., (hereafter "the landlord"), petitions this Court seeking a warrant of eviction to dispossess the respondent tenant, Adrianne L. Patterson, alleging that her lease was terminated pursuant to its terms and applicable law. The respondent opposes said relief asserting that the alleged grounds for termination, and her hearing officer's decision, are not factually substantiated.

Undisputed Facts

It is undisputed that Adrianne L. Patterson is a long time tenant residing 202 Ponquogue Court, Melville, New York,. Her landlord is a "not for profit" multi-family low income housing project which is operated and administered in conjunction with the Town of Huntington Housing Authority (hereafter "The Authority") and primarily funded by the United States Department of Housing and Urban Development (hereafter "HUD"). As a result of an annual inspection, the landlord served the respondent with a Notice of Violation dated October 24, 2008, which terminated her lease effective November 30, 2008. Said Notice contained language indicating the respondent had a right to counsel and to request an "informal grievance hearing," through oral or written submission, and too thereafter, request a formal "hearing" if not satisfied with the informal determination.

A formal grievance hearing was conducted February 19, 2009, which was attended by the [*2]respondent. A Millennium employed hearing officer sustained the landlord's decision to terminate the respondent's lease in a decision dated March 1, 2009, premised upon violations of lease clauses E (8) and I (6). The violations of clause E (8) involved dent damage to the outside garage door, soiled carpets, and children's crayon markings on the walls. The I (6) violation involved a several day nonpayment electrical supply cut-off, which the landlord maintains violates the tenant's responsibility to maintain heat sufficient to prevent pipe freezures. The tenant procured electrical service and cleaned the rugs and crayon markings shortly after the commencement of the lease termination proceeding.

The Court conducted a summary proceeding trial on May 21, 2009 and adjourned its decision to encourage a settlement of the dispute. Thereafter, the Court denied the landlord's application dated August 12, 2009 seeking to amend its petition and reopen the trial record to include evidence of the respondent's son's activity which disturbed the other residents peaceful social enjoyment of the housing premises. While a vague unspecific reference to criminal activity is asserted in the application; the landlord's attorney's supporting affirmation demonstrates only the respondent's son's use of foul language and an unsuccessful attempt to push a co-habitant into the bushes. The Court need not entertain or consider such evidence as theses grounds were not asserted in the underlying "notice of lease termination" which limited itself to lease Sec. E (8) and I (6) violations involving apartment damage and potential pipe freezing. Pursuant to the language in the lease, these acts cannot stand as a predicate to the instant summary proceeding. See Rockville Center Housing Auth. v. Boggen, 20 Misc 3d 1126(A) (Nas. Co. Dist. Ct. 2008).

Discussion

A review of the relevant multi-family public housing precedent indicates that most of the case law involves government owned, financed and administrated projects. In such an instance, New York law limits the landlord/tenant Court's review to only deciding whether the Housing Agency complied with the state and federal constitutional requirements of "due process." Matter of Fuller v. Urstadt, 28 NY2d 315 (NY 1971).The Court of Appeals in the Fuller case definitionally limited due process, in a governmental lease termination, to a "hearing" before an administrative agency which consisted of no more than an "opportunity to deny or explain." The grounds for lease termination must be clearly stated in writing, along with advising that the tenant has the right to retain counsel. Williams v. White Plains Housing Authority, 35 AD2d 965 (NYAD 2nd Dep't. 1970). Sherman v. Kopach, 75 Misc 2d 18 (Sp. Ct. Alb. Co. 1971). A formal hearing is not necessarily required to meet the minimal requirements of due process, in a government landlord lease termination.

The reason New York law bars the evicting Court from a full merit review of governmental housing lease terminations evolves from the fact that the determinations of governmental officials are reviewable only pursuant to petition to Supreme Court as an Article 78 proceeding. See NY CPLR Sec.'s 7801-7806. Tompkins Square Neighbors, Inc. v. Zaragoza, 73 Misc 2d 126 (App. Term 1st Dep't. 1973). revd. 43 AD2d 551 (NYAD 1st Dep't.193) appeal dismissed 34 NY2d 737 (NY 1974). Unlike a constitutionally created Court of equity; this Court is a creature of statute which does not have the equitable power to enjoin and annul the actions of the state agencies and officers. See [*3]UDCA Sec.'s 201-213. In instances where the tenant of a government owned property was afforded minimal due process; obtaining a substantive review of the grounds for lease termination, can only be accomplished in the Supreme Court.[FN1]

Accordingly, the threshold factual issue is whether the landlord is a governmental or private entity? The record establishes that it is a "not for profit" corporation created under the New York State Public Housing Law. Its directors are principally appointed by the Town of Huntington Housing Authority, which also serves as the coordinating conduit for "HUD" and New York State funds which financed the housing construction and continued operation. The Authority was carbon copied with all the landlord's actions and determinations. The hearing officer was an employee of Millennium, not the housing authority. This is an important fact; as the Housing Authority is a New York State governmental agency while Millennium is not.

The Court of Appeals in the Fuller decision expressly recognized the distinction between tenants who rented directly from the privately owned (but state supervised)Mitchell-Lama Public Housing Corp. and those subletting from the 20% of the units which were leased to the State. See, Matter of Fuller v. Urstadt, 28 NY2d 315 at pg. 318 (NY 1971). The Court held therein that direct State subletters receive only minimal due process, while private, but government assisted unit tenants were entitled to a full evidentiary hearing and a substantive scope of review.

The Court is cognizant of the fact that Millennium is a defacto government creature and that in instances of nominal private ownership, the landlord must be considered a governmental agency. Bonner v. Park Lake Housing Development Fund Corp., 333 NYS2d 277(Sup. Ct. Nassau Co. 1972); See also, Colon v. Tompkins Square Neighbors, Inc. 294 Fed. Supp. 134 (DCNY 1968).However, this precedent is limited solely to affording tenants constitutional guarantees, and does not change the single, simple, relevant fact that the employees who issued the lease termination notice and who conducted the termination hearing were not employees or agents of the government. Absent this formal public status, Article 78 review is inapplicable and this Court has the jurisdiction to conduct a de novo review of the merits of the lease termination.

De Novo Review[*4]

Tenants in a federally subsidized housing project are entitled to an expectation of indefinite permanency wherein termination of a lease is the exception not the rule. See Vinson v. Greenburg Housing Authority, 29 AD2d 338 (NY AD2d Dep't. 1968). Green v. Copperstone, LTD. P.; 28 Md. App. 498, 346 AD2d 686 (Md. Ct. Appeals, 1975); citing to Procedural Due Process in Government- Subsidized Housing, 86 Harvard Law Rev. 880, 905 (1973). NY Const. Art. XVIII. Federal regulations require " material " noncompliance with the HUD financed housing agreement which must be "substantial" violations, or "repeated minor" violations which disrupt the livability or health and safety of the project. Emphasis added. 24 CFR Sec. 247.3. Sec. 247.3 (b) expressly provides that "the conduct of the tenant cannot be deemed "good cause" for lease termination unless the landlord has given the tenant prior notice that said conduct shall henceforth constitute a basis for termination of occupancy. . ." Emphasis added. Such a prior notice was never served in the case at bar, and appears to be a violation of federal regulation, which provides:

No termination by a landlord under paragraph (a)(1) or (2) of this section shall be valid to the extent it is based upon a rental agreement or a provision of state law permitting termination of a tenancy without good cause. No termination shall be valid unless it is in accordance with the provisions of §247.4.

Additionally, an exhaustive review of relevant case law reveals no instance where termination was upheld for messy housekeeping which was cured, minor damage to the outside of a building which could have been done by anyone; or a few days termination of electrical services for inability to pay. The severe sanction of HUD lease termination has primarily been reserved for serious criminal activity involving drugs , guns and physical violence, and occasionally for non approved tenant subletting. See generally, 77 Yale Law Journal 988, Public Landlords: Eviction of Undesirables (1968)

When grounds for lease termination involve general "nondesirability" arising out of verbal "accosting" of a housing official during a repair related apartment inspection, the termination of a lease has been found to "shock the judicial conscience" and been vacated. Mary Peoples v. New York City Housing Authority, 281 AD2d 259 (NYAD 1st Dep't 2001). This appears analogous to the respondent's situation concerning her adult son. This finding is without prejudice to the landlord's future request for lease termination relief, should the situation deteriorate to the point of "actual violence" or multiple acts which endanger the safety of other residents. See Featherstone v. Franco, 95 NY2d 550 (NY 2000); which endorsed lease termination in such an instance.

For reasons heretofore stated, the landlord's petition is dismissed.

______________________________

J.D.C.

Date: October 16, 2009 Footnotes

Footnote 1: The Court is aware of the Freeport Housing Auth. v. Stewart, 20 Misc 3d 1139(A) (Nass. Co. Dist. Ct. 2008) decision which cites to 24 CFR § 966.57 and an unreported related New York State Supreme Court decision for the proposition that federal regulations vest de novo review jurisdiction in the District Court, and which finds that Art. 78 review of a Public Housing lease termination is jurisdictionally unavailable as the hearing officer's decision is not considered a final act. While this conclusion appears facially correct, it is inconsistent with decades of precedent, inclusive of the Court of Appeals Fuller case, which indicates that the Supreme Court is the appropriate forum for these government lease termination disputes.