McNair v New York City House Auth.

[*1] McNair v New York City House Auth. 2010 NY Slip Op 50482(U) [26 Misc 3d 1240(A)] Decided on March 22, 2010 Supreme Court, Kings County Lewis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 22, 2010
Supreme Court, Kings County

Diana McNair, Petitioner For a Judgment Pursuant to Article 78 of the CPLR

against

New York City House Authority, Respondent.



11379/09



Plaintiff Attorney:

Diana McNair - Pro se

Defendant Attorney:

Sonya M. Kaloyanides, Esq

NYCHA Attorney

Hon. Yvonne Lewis, J.

The petitioner, pro se, Diana McNair seeks a judgment pursuant to CPLR article 78 annulling the determination of respondent New York City Housing Authority (the Housing Authority), dated September 24, 2007, which found the petitioner ineligible for admission to the Housing Authority's Section 8 Existing Housing Program (the Section 8 program) is granted only to the extent of remanding this matter back to the Housing Authority for re-consideration of the issue of Franklin McNair's status as an "offending person" and, if necessary, for a determination as to whether the petitioner has cured her ineligibility for Section 8 assistance.

The Housing Authority is one of several agencies in New York City which administers the Section 8 program through which the federal government provides housing assistance payments to eligible families to enable them to afford privately-owned housing. Among other things, federal regulations provide that the Housing Authority may deny Section 8 assistance if it determines that a household member has engaged in violent criminal activity. In September 2005, Diana McNair applied for Section 8 housing assistance. In her application, Ms. McNair , who was living at a shelter with her husband, Franklin McNair, explained that he would live apart from her with one of their adult children if she qualified for Section 8 assistance. The Housing Authority conducted a criminal background check to determine if Ms. McNair's husband was an "offending person" as defined by the Housing Authority's Standards for Admission. According to the Housing Authority, the background check revealed that he was an "offending person" since he had been convicted of three counts of robbery in the first degree in 1981 and sentenced to imprisonment for 150 months to 25 years. Therefore, the Housing Authority's policy required it to send the petitioner's application to its Family Composition Review Unit (FCRU) to determine "whether a reasonable basis exists to believe that [Franklin McNair] is or will be a member of [petitioner's] household". [*2]

After that review, FCRU found that Ms. McNair's assertion that she and her husband would not live together in Section 8 housing was not credible since they had been married since 1981 and were then living together and there was no evidence that the relationship had terminated. On or about August 9, 2007, the Housing Authority advised the petitioner of its finding of ineligibility and that she had 30 days in which to challenge the finding. In response, she sent two letters in which she repeated her claim that her husband would not live with her if she relocated to Section 8 housing. Since the petitioner provided no new evidence to change the Housing Authority's preliminary determination, the Housing Authority notified her on September 24, 2007 that it had determined that she was ineligible for Section 8 assistance because of Franklin McNair's conviction record. The letter also advised her that she had 90 days in which to request an informal hearing to review the determination. Following her request, a hearing was held on May 5, 2008

At the hearing, Ms. McNair stated, among other things, that she last lived with her husband in February 2008, that he committed his crimes before she knew him and that she does not know his whereabouts. She produced a copy of a lease for an apartment at 212 Lewis Avenue in Brooklyn for the period from February 1, 2008 through January 31, 2009 which listed her and her husband as tenants and a letter, dated April 1, 2008, from her landlord which stated that Franklin McNair had moved out of the apartment on February 22, 2008. The hearing officer sustained the finding of ineligibility

Among other things, he found that the letter was insufficient to verify that her relationship with her husband had ended. On or about May 7, 2008, the decision was mailed to the petitioner at a previous address in Queens. Apparently, she did not receive notice of the decision until she inquired about the status of her case in February 2009. On May 8, 2009, this proceeding was commenced.

In her petition, Ms. McNair states that Franklin McNair was both physically and verbally abusive to her during the course of their marriage, that she has not been living with him since February 2008, and that she has no intention of living with him in the future. She points out that she was granted a "DHS work-advantage Subsidy" in January 2008 in her name alone and her renewal lease bears only her name. She submits a copy of a bank statement in her name alone, as well as documents from the New York City Human Resources Administration, to show "that the relationship has terminated." She also submits a copy of a police report, dated February 9, 2009, allegedly demonstrating the physical abuse she suffered, as well as a letter from a daughter who lives in Washington, D.C. which states that she visits her mother every two months and that her father does not live with her mother. Ms. McNair also claims that she has not commenced an action for divorce because of financial hardship. In supplemental papers received on December 22, 2009, she proffers a letter from her landlord and a letter from another tenant at 212 Lewis Avenue to the effect that Ms McNair lives alone. Ms McNair also submits a "letter of reference" from her daughter in which she relates that her father "is in hiding from the State of New York Parole" and that in February 2009 he advised her that he had no intention of resuming cohabitation with Ms. McNair.

In opposition to the petition, the Housing Authority argues that it made a reasonable determination, authorized by federal law, that Ms McNair was ineligible for the Section 8 program. In determining whether Franklin McNair was or would be a member of petitioner's household, the Housing Authority asserts that it considered the official court records relating to Franklin McNair, documents provided by the applicant and her credibility in providing information to the Housing Authority. According to the Housing Authority, Franklin McNair was convicted of three felonies in 1981, the same year as his marriage to the petitioner. They [*3]lived together since 1993 (upon his release from prison), they were on the same welfare budget and they signed a lease for the same apartment in February 2008. The Housing Authority contends that Ms McNair did not present any credible evidence that their relationship had ended or that Franklin McNair was living at a different address from hers. The Housing Authority points out that Ms McNair has submitted several documents that were not part of the record considered by the hearing officer and, therefore, they should not be considered by this court.

Courts may not interfere with the exercise of discretion by an administrative tribunal unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious (Pell v Board of Educ., 34 NY2d 222, 231 [1974]). The court may not conduct a de novo review of the facts and circumstances or substitute its own judgment for that of the administrative agency (see Greystone Management Corp. v Conciliation and Appeals Bd., 94 AD2d 614, 616 [1983], affd. 62 NY2d 763 [1984]). Judicial review of administrative determinations is confined to the facts and record adduced before the agency (Featherstone v Franco, 95 NY2d 550, 554 [2000]). Moreover, where the administrative determination requires an evaluation of the facts within an area of the administrative body's expertise, the determination must be accorded great weight and judicial deference (see Flacke v Onondaga Landfill Systems, Inc., 69 NY2d 335, 363 [1987]).

In administering the Section 8 program, the Housing Authority is bound by the federal regulations set forth in 24 CFR Part 982. The Housing Authority avers that it may prohibit admission of a household to the program if it determines that any household member is currently engaged in or has engaged in violent criminal activity during a reasonable time before the admission (emphasis added)(24 CFR § 982.5563 [a][2][ii]). If the Housing Authority previously denied admission to an applicant because a member of the household engaged in criminal activity, it may re-consider the applicant if it has sufficient evidence that the members of the household are not currently engaged in, and have not engaged in, such criminal activity during a reasonable period as determined by the Housing Authority, before the admission decision. (see 24 CFR § 982.553 [a][2][ii][C]).

The Housing Authority has adopted "Standards for Admission" to exclude persons who, based upon their past behavior, might adversely affect the health, safety or welfare of other tenants or Housing Authority staff. Those standards are set forth in Chapter VI, Section II(E) of its Housing Applications Manual. In this case, the Housing Authority relied upon Franklin McNair's felony convictions in 1981 as a basis for denying Ms McNair's application for Section 8 assistance. The Housing Authority determined that Ms McNair had presented no credible evidence that her relationship with her husband had ended and no evidence whatever that he was then living at a different address from hers; rather; it noted that the petitioner and her husband were not legally separated or divorced, a lease agreement beginning on February 1, 2008 contained both of their names and they both apparently were "receiving Medicaid and Food Stamps on the same case since August 1, 2005." Notwithstanding that fact, the Housing Authority's determination that Franklin McNair was an "offending person" under its guidelines was without a sufficient basis in the record, whether or not there was reason to believe that he would reside with petitioner if she obtained Section 8 assistance. The Housing Applications Manual sets forth, at page 17, the "Bases for Ineligibility." As is pertinent here, where the offending person has been convicted of a Class A, B or C Felony, his or her family will be ineligible "until the convicted person has served the sentence (including the completion of probation and/or parole and the payment of any fine) and has no further convictions or pending charges for six years after completing the sentence."(emphasis added). This Court notes that although petitioner referred to her [*4]husband's crimes as having occurred "over twenty years ago" in one of her letters to the Housing Authority, neither the findings of FCRU or the hearing officer referred to the duration of Franklin McNair's sentence as a factor in the decision-making process. According to the respondent's answer and as confirmed by handwritten notations on Franklin McNair's conviction records which were obtained by the Housing Authority, "if [Franklin McNair] completed his full sentence of 25 years he would not be eligible for Section 8 housing assistance until July 9, 2012," six years after the alleged completion of his sentence of 25 years. Franklin McNair's sentence of imprisonment ranged from 150 months to 25 years. According to the decision of the hearing officer at the Housing Authority's Division of Applicant Appeals, Franklin McNair had been residing with petitioner since 1993 "when he was released from prison." On the record, there is no way to determine whether and for how long Franklin McNair remained subject to probation and/or parole and, consequently, no assurance that his period of ineligibility extended into 2012 or even into 2007 when the Housing Authority considered petitioner's application. Therefore, this matter is remanded back to the Housing Authority for the purpose of conducting a hearing to determine the issue of the duration of Franklin McNair's ineligibility and whether or not the petitioner's circumstances have so changed as to make Franklin McNair's ineligibility irrelevant.[FN1] Since Franklin McNair's imprisonment apparently ended in 1993, it is the Housing Authority's burden to demonstrate that the completion of his sentence was extended by probation and/or parole beyond 2001 (six years prior to the filing of petitioner's application).

By letter dated September 24, 2007, the Housing Authority advised petitioner that her family did not meet the standards for admission to Section 8 housing. It also indicated that she would remain ineligible for Section 8 housing "until you have cured the reason(s) for ineligibility" and that, until the reasons for ineligibility were cured, it would not process a new application, suggesting that petitioner would be permitted to file a new application if there were a change in circumstances. Although the evidence presented by petitioner in 2007 and 2008 was not found credible, submissions included, both with her petition and made after service of the respondent's answer, suggest that her circumstances have changed. Since most of the documents were not produced at the original hearing, they cannot be considered by this Court in support of petitioner's request for relief from the adverse determination.

Accordingly, if the Housing Authority determines that Franklin McNair is an "offending person" after considering evidence with respect to the completion of his sentence, it shall then consider whether petitioner can demonstrate that she has cured her ineligibility. To the extent possible, petitioner should be prepared to present "documents that may be helpful" (examples of which are given in Exhibit "3" of the answer"), as well as any other documents and witnesses pertinent to the issue of Franklin McNair's residence or his absence from petitioner's apartment.

The foregoing constitutes the decision, order and judgment of this court.

ENTER,

____________________________ [*5]

Yvonne Lewis, JSC Footnotes

Footnote 1:Given the possibility of a changed result, this court is not considering the reasonableness of The Housing Applications Manual's Bases for Ineligibility, which allow for conduct that is twenty years old and from which time served has been a minimum of twelve years.