Davis v New York City Hous. Auth.

[*1] Davis v New York City Hous. Auth. 2010 NY Slip Op 52242(U) [30 Misc 3d 1202(A)] Decided on December 8, 2010 Supreme Court, New York County Mendez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2010
Supreme Court, New York County

Dorian Davis, Petitioner,

against

New York City Housing Authority, Respondent.



401882/10



MFY Legal Services, Inc.,

by: Christopher D. Lamb, Esq.

Attorneys for petitioner.

by: Sonia M. Kaloyanides, Esq.

Attorneys for respondent.

Manuel J. Mendez, J.

Petitioner brings this Article 78 Petition to annul the Hearing Officer's determination dated December 4, 2009, following an administrative hearing, sustaining the administrative charges and terminating his tenancy.

Petitioner resides at 159-70 Harlem River Drive Apt. 8A (Rangel Houses) which is managed by respondent New York City Housing Authority [see Answer Exh. A]. Petitioner seeks to annul Respondent's determination terminating his tenancy for breaching the stipulation dated June 27, 2008 by allowing William Hickman to reside in or visit his apartment. [see Answer Exh. F]. [*2]

On January 29, 2009 police officers from the New York City Police Department Narcotics Unit entered petitioner's apartment pursuant to a search warrant. During the search police recovered 45 bags of marijuana and $120.00. Police arrested Petitioner and Mr. William Hickman, a person petitioner was not supposed to allow to visit or reside in his apartment. Mr. Hickman pled guilty to possession of Marihuana and received a sentence of 30 days in jail. Petitioner received an Adjournment in Contemplation of Dismissal, and ultimately his case was dismissed. [see answer Exh. I, O, P, Q, R].

Respondent served petitioner with notice of hearing to terminate his tenancy on charges that: "(1) he violated the terms of the stipulation dated July 9, 2008 which imposed a five year period of probation of his tenancy; (2) on

January 29, 2009 he acting in concert with Willie Hickman did unlawfully possess, sell or attempt to sell Marijuana; (3) permitted illegal drug activity in your apartment; (4) violated terms of the stipulation by allowing Willie Hickman to be inside the apartment; (5) allowed Willie Hickman to take up residence in the apartment without permission; (6) failed to refrain or cause individuals on the premises to refrain from illegal activity." [see Answer Exh. J].

NYCHA sent a "Mental Competency Evaluation Request" to its Social Services Department to have Mr. Davis undergo a psychological assessment. The Social Services Department performed a psychological Assessment and determined Mr. Davis "to be competent and in no need for a Guardian Ad Litem." During the psychological assessment interview the following was noted: MENTAL HEALTH HISTORY "Tenant reported that his mental health history dates back to 1984 when he was diagnosed with Bipolar Disorder at Harlem Hospital. Tenant further reported his last hospitalization was in November 1989 through January 1990. Upon his discharge in 1990 he was referred to Harlem Hospital outpatient mental health clinic where he receives mental health services and attends their Bipolar support group. On 8-5-09, sw confirmed with Dr. Brooks, Psychiatrist/intern that the tenant has been compliant with treatment and his medication maintenance. Tenant was seen by psychiatrist, Dr. Ikeako on 7-1-09 and tenant's session notes indicated tenant remains oriented and compliant with their treatment goals and attending the Bipolar support group. Tenant has been prescribed the following Psycho tropic medications: Lithium 300mg, Risperdol 2mg, and Seroquel 200mg." [see Exh. K & L].

A hearing was held before Hearing Officer Desiree Miller. At the Hearing Mr. Davis appeared Pro Se and without the assistance of a Guardian. Respondent, represented by counsel, presented testimony of a number of witness in support of its case to terminate Petitioner's tenancy. [*3]Petitioner in essence admitted all charges by not adequately cross examining these witnesses, presenting any witnesses on his behalf or testifying to assert his rights and interests in the tenancy. That portion of the transcript containing Petitioner's defense is three pages long and consists mainly of a colloquy between the hearing officer and Mr. Davis regarding his inability to obtain an attorney. His actual testimony is one page (23 lines) long. His testimony is incoherent and leads the reader to the conclusion that the deponent does not understand the nature of the proceeding and cannot adequately protect and asserts his rights and interests [see Hearing transcript Exh. M].

On December 4, 2009 Hearing Officer Miller rendered her decision sustaining all charges, except charge 3 and disposing the termination of petitioner's tenancy. NYCHA's board approved the Hearing Officer's decision on December 16, 2009 [See Exh. S & T].

On March 9, 2010 Dinah Luck, Esq., of MFY legal services wrote to Hearing Officer Miller requesting that she vacate her decision. In her letter Ms. Luck informed the hearing officer that Mr. Davis "suffers from mental illness, and as a result of such illness was not able to protect his interests at the time he signed the stipulations and at the time of the hearing." Ms. Luck annexed to her letter a letter from Ms. Louise, I. Hodge, PhD, CPRP, the associate director of Adult Outpatient Programs at Harlem Hospital, who is of the opinion that "Mr. Davis did not fully understand or grasped the law jargon in this document, the severity of this issue or the ramifications contained therein." [see answer Exh. U].

On March 22, 2010 Hearing officer Miller denied Ms. Luck's request [see Exh. V].

Petitioner now seeks to have the hearing officer's determination annulled and seeks to have the stipulation vacated.

While under article 78 the power of the supreme court to overturn an administrative agency's determination is limited, the court is charged with the obligation to insure that the proceeding leading to such determination comports with basic tenets of due process and complies with the agency's own guidelines and procedures. (See Padilla v. Martinez, 300 AD2d 96, 752 NYS2d 28 [1st Dept. 2002] annulling determination and remanding for appointment of Guardian where despite petitioner's inappropriate and bizarre behavior during the hearing, the Housing Authority's apparent knowledge that petitioner had been treated by a psychiatrist, petitioner's testimony regarding her treatment by a psychiatrist and the hearing officer's comments that petitioner needed psychiatric help the Authority held a hearing and held petitioner's inability to represent herself against her). [*4]

In the present case Petitioner presents a Mental History dating back to 1984. He has been hospitalized for Bipolar Disorder, is undergoing treatment at a Harlem Hospital Psychiatric Clinic, is prescribed Psycho tropic medications and is under the supervision of a Mental Health Team. This information had been provided to the hearing officer prior to the commencement of the hearing, who should have questioned further the Authority's determination that Petitioner was competent and not in need of a Guardian. The hearing officer was required to either seek the appointment of a Guardian or make another referral for Social Services Evaluation [see GM-3472 (Revised §III(E)(3); Blatch v. Hernandez, 360 F. Supp. 2d 595 (S.D.NY 2005]. The hearing officer should have erred on the side of caution by appointing a Guardian, given the facts uncovered at the Mental Competency Evaluation and Petitioner's behavior at the Administrative hearing.

Although it is highly inappropriate for NYCHA to enter into settlement stipulations with individuals it knows have a mental disability, such as petitioner herein, such issues must be dealt with at the Administrative level, and within the statute of limitations (see Robinson v. Martinez, 308 AD2d 355, 764 NYS2d 94 [1st. Dept. 2003] denying Petitioner's challenge to the validity of a settlement stipulation because it was time barred and not challenged at the administrative level).

Respondent was aware of Petitioner's Psychiatric history and should have appointed a guardian to assist him in the administrative proceeding. Petitioner's psychiatric history, the incoherency of his testimony and lack of defense at the administrative hearing make the proceeding unfair and compel the annulment of the resulting disposition (see Padilla v. Martinez, 300 AD2d 96, 752 NYS2d 28, Supra).

Accordingly, for the foregoing stated reasons it is ORDERED and ADJUDGED that the Petition is granted, the Hearing Officer's determination is annulled and the matter is remanded to the Housing Authority for a new hearing where petitioner shall be afforded the assistance of a Guardian.

This constitutes the decision and order of this court.