Matter of Muhammad v New York City Hous. Auth.
Annotate this CaseDecided on June 4, 2010
Supreme Court, New York County
In the Matter of Deborah Muhammad, Petitioner,
against
New York City Housing Authority, Respondent.
401936/09
Appearances of Counsel:
Deborah Muhammad, Petitioner Pro Se
Sonya M. Kaloyanides, Acting General Counsel, New York City Housing Authority (Nancy M. Harnett, Andrew M. Lupin, of counsel) for Defendant
Cynthia S. Kern, J.
In this Article 78 proceeding, petitioner Deborah Muhammad seeks to annul the New York City Housing Authority's (the "Housing Authority") determination finding her ineligible for public housing for five years. This court denies the petitioner's request for the reasons set forth below.
Harlem River Houses development, located at 2850 Eighth Avenue in Manhattan, is a public housing project owned and managed by the Housing Authority. The Housing Authority, although an agency of the City of New York, is a public housing authority regulated and funded by the United States Department of Housing and Urban Development ("HUD"). HUD mandates the Housing Authority to establish and adopt written policies for admission of public housing tenants. In doing so, HUD sets forth guidelines which must be followed by the Housing Authority. 24 C.F.R. § 960.202. In compliance with HUD's federally regulated guidelines, the Housing Authority has drafted internal manuals of written policies for admission. The instant action arises out of the Housing Authority's application of an internal policy addressing [*2]eligibility for public housing. The policy at issue will be addressed more fully below.
Celestine Rudolph ("Rudolph"), petitioner's sister, was the sole tenant of record at the Harlem River Houses, 2850 Eighth Avenue, Apartment 13A ( the "residence"). Petitioner and her four children moved in to the residence in or around 2000 without permission from the Housing Authority. Sometime between 2001 and 2002, Rudolph permanently moved out of the residence. Petitioner and her children continued living at the residence. As petitioner concedes, Rudolph did not place her name on the yearly affidavits naming the persons residing in the apartment and the petitioner never received written permission from the Housing Authority to succeed Rudolph's tenancy. Upon learning of petitioner's unauthorized occupancy, the Housing Authority brought a termination of tenancy proceeding against Rudolph. After Rudolph twice defaulted on the scheduled hearings, the Housing Authority terminated Rudolph's tenancy in December 2006 for illegally subletting, assigning, or transferring her apartment to petitioner, for failing to furnish complete income verification and family composition information and for breaching Housing Authority rules and regulations. Despite the termination in tenancy, petitioner and her four children continued to live at the residence without permission from the Housing Authority.
In June 2007, Housing Authority brought a licensee holdover eviction proceeding against Petitioner and Rudolph in the Housing Part of the Civil Court arguing that (1) petitioner was an unauthorized occupant of the apartment, (2) Rudolph failed to obtain written permission for petitioner to join her household, and (3) Rudolph's tenancy was terminated. Petitioner sought to succeed as a remaining family member of the residence. The Civil Court denied petitioner's claim for failure to establish a succession claim to the residence and issued a warrant of eviction. At the trial, the Civil Court judge also ordered that petitioner submit her own application for public housing. That court's order stated the following: "Judge Orders: That Ms. Muhammad files application for NYCHA Housing and suggest speeding [sic] consideration. Please accept her application and expedite immediately by no later than Aug. 31, 2008."
Petitioner subsequently submitted an application for public housing to the Housing Authority. The Housing Authority denied petitioner's application because under Housing Authority policy, applicants who have been evicted or are about to be evicted from a Public Housing Authority apartment pursuant to a licensee action are ineligible for public housing for five years. Petitioner internally appealed the decision pursuant to Housing Authority policy. During the pendency of the appeal, petitioner brought an Article 78 proceeding challenging the Housing Authority's initial determination. That proceeding was withdrawn on November 25, 2009 as moot because the Housing Authority had scheduled an informal hearing before a hearing officer, the final step in the Housing Authority's grievance procedure. The hearing officer at the informal hearing ultimately decided against petitioner and sustained the Housing Authority's initial determination finding petitioner ineligible for public housing. Petitioner then filed the instant Article 78 proceeding requesting that this court annul the Housing Authority's determination finding petitioner ineligible for public housing for five years as arbitrary and capricious. Petitioner's request is denied for the reasons set forth below.
First, Petitioner's request is denied because she used the same index number as that of her previously withdrawn Article 78 proceeding. Pursuant to CPLR sections 304 and 306-a, a plaintiff must purchase a new index number when commencing a new action. When a petitioner withdraws a proceeding and initiates a new action, the petitioner is obligated again to "comply fully with the statutory filing requirements, that is, to file the notice of petition and the petition, [*3]pay the filing fee, secure an index number, effect service and file proof of service within the prescribed period." Gershel v. Porr, 89 NY2d 327, 332 (1996). Where a petitioner fails to comply with all of the statutory filing requirements, the attempted service is a nullity. Id. Here, petitioner commenced a new Article 78 using the old index number assigned to the previously withdrawn Article 78 proceeding. Therefore, petitioner's action is dismissed as a nullity.
Moreover, the court upholds the determination of the Housing Authority. "The law is well settled that the courts may not overturn the decision of an administrative agency which has a rational basis and was not arbitrary and capricious. A rational basis exists where the administrative determination is supported by substantial evidence. Substantial evidence is defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.'" Goldstein v. Lewis, 90 AD2d 748, 749 (1st Dep't 1982). Also, "the determination of an agency, acting pursuant to its authority and in its area of expertise, is entitled to deference." Nelson v. Roberts, 304 AD2d 20, 23 (1st Dep't 2003)
In the instant action, the Housing Authority's determination that petitioner is ineligible for public housing for five years was not arbitrary or capricious. In making its determination, the Housing Authority relied on admissions made by petitioner as well as its admissions policy memorialized in Applications and Tenancy Administration Department Memorandum AIM No.70 (2/22/07) Standards for Admission-Public Housing Program, which states in relevant part that tenants subject to eviction from a Housing Authority apartment pursuant to a licensee action are ineligible for admission for five years from the date of the person's move-out or eviction. This policy is also incorporated in the Housing Authority's Applications and Tenancy Administration Department Manual. Here, it is undisputed that petitioner was subject to eviction from her public housing residence pursuant to a licensee action. Further, the petitioner admitted to the Housing Authority that Rudolph vacated the apartment in 2001 and that petitioner was never added to the lease for the apartment. As the Housing Authority has provided a rational basis for its determination, this court denies the petitioner's request for relief.
Petitioner's argument that her application should be granted because she was following the instructions of Civil Court Judge Joseph E. Capella that she file an application for public housing under her own name is without merit. Although the Civil Court did order the Housing Authority to accept and expedite the petitioner's application, the decision to approve or deny public housing is within the Housing Authority's discretion. Thus, the Civil Court could not compel the Housing Authority to expedite or approve the petitioner's application for public housing. Moreover, to the extent that petitioner is arguing that something was done incorrectly by the Civil Court judge, this court has no authority to address that issue.
Petitioner also argues that during the Civil Court hearing, two Housing Authority employees (the attorney representing the Housing Authority and a Housing Authority assistant) misinformed petitioner about its policies by representing that petitioner could apply for public housing and that her application may be given priority because of the looming eviction. Although those statements were erroneous, neither constituted a promise or assurance that Petitioner's application would be approved or expedited. In fact, at a later hearing for the same proceeding, the Housing Authority's attorney represented that she has "no control over applications," that "no one is given preferential treatment" and that the application could take "years."
Accordingly, this court denies petitioner's request for relief under Article 78 of the C.P.L.R.
and dismisses the proceeding in its entirety. The court denies the Housing Authority's [*4]request that this court order petitioner to pay costs, including
attorney's fees, as its has failed to provide any basis for this request. The temporary stay issued
by this court is hereby vacated. This constitutes the decision and order of the court.
Dated:______June 4, 2010__________________Enter:
______________________________
J.S.C.
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