Matter of Cepeda v New York City Hous. Auth.

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Matter of Cepeda v New York City Hous. Auth. 2011 NY Slip Op 32385(U) August 19, 2011 Sup Ct, NY County Docket Number: 400352/11 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - - NEW YORK SAblANN SCARYULLA COUNTY PART - Index Number : 4003521201 1 CEPEDA, IRIS J. , 7 IrI INDEX NO. vs DATE NEW YORK CITY HOUSING MOTION Sequence Number : 001 MOTION SEQ. NO. ARTICLE 78 MOTION CAL. NO. The following papers, numbered 1 to were read on this motlon tolfor PAPERS NUMBFPED Notice of Motlonl Order to Show Cause - Affidavlts - Exhibit8 ... Answerlng Affidavits - Exhlbits 3eplying Af f ldavits Cross-Motion: 0 Yes P N o Jpon the foregoing papers, it I ordered that this motlon s Check one: @ FINAL DISPOSITION Check if appropriate: 0 NON-FINAL DISPOSITION DO NOT POST SUBMIT ORDER/ JUDG. n REFERENCE u SETTLE ORDER/ JUDG. [* 2] SUPrCEME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART 19 X IN THE MATTER OF THE APPLICATION OF IRIS J. CEPEDA, _--___l__ -_r__l___r--~--~-----------~--~-_~-----~-----~---- ---- Index No.: 400352/11 Petitioner, Submission Date: 6/22/20 11 - againstDECISION ANP ORDER NEW YORK CITY HOUSING AUTHORITY, Respondent. ___1______________1-__________________I_--------------- Petitioner, Pro se: his J. Cepeda 130 W. 22SthStreet, #l-A Bronx, NY 10463 X For Respondent: Sonya M. Kaloyanides New York City Housing Authority 250 Broadway, 9h Floor New York, NY 10007 Papers considered in review of this petition: Verified Petition . . . . . . . . . . . . . . . 1 Varified Answer. . . . . . . . . . . . . . . 2 llffinopp . . . . . . . . . . . . . . . . . . . . . 3 Mem of Law . . . . , , . . . . 4 I I UNFlLED JUDGMENT This judgment has not been entered by the Cwnty c& and notice of entry cannot be senred b m n . T~ obtain entry, counsel OT a-4 represenwe qpxwinpwsonatthe J u d g ~ t c ~ S t ) e s k ( ~ 141& HON. SALIANN SCARPULLA, J.: In this Article 78 proceeding, petitioner Iris J. Cepeda ( Cepeda ) challenges the October 20, 2009 decision of the respondent New York City Housing Authority (WYCHA ), which terminated her Section 8 benefits. In her petition, Cepeda alleges that the determination was based on irrational arguments and provides an inadequate explanation, and requests that the determination be annulled that a new Section 8 voucller be issued. 1 [* 3] Cepeda was a recipient of a Section 8 housing subsidy. By its own terms, Cepeda s voucher expired on May 25,2009. However, NYCHA continued to process Cepeda s rental package for the voucher through September 2009. In her verified petition, Cepeda states that L[t]heagency further explained that petitioner had already been given an extension and that the certification process had been allowed to continue by the agency provided that the inspection was passed without delay. Once they determined there would be a delay, the agency stated that the process could no longer be delayed and they promptly canceled the voucher. Cepeda then received a letter from NYCHA dated October 20,2009, which stated in pertinent part, On 5/29/09 your Section 8 Housing Choice Voucher expired without rental. We have , therefore, canceled the Voucher and your application has been removed from our active file. On or about December 30,2009, Cepeda commenced an Article 78 proceeding . . seeking to annul the October 20, 2009 determination. The Court (Justice Friedman) found that it was irrational for NYCHA to make a determination that the voucher expired on May 29, without addressing that it had continued to process the voucher. The Court notes that NYCHA s failure to give a reason for the termination that addressed the facts fosters the unfortunate perception, which petitioner holds here, that the agency acted in an arbitrary fashion. . . . In the event petitioner seeks to challenge respondent s decision after the remand, she shall bring a new Article 78 proceeding. In re Cepeda, Index No. 400021/10, Sep. 20,2010, at 2. As a result, Justice Friedman remanded the 2 [* 4] matter to NYCHA for issuance of a determination stating the basis-for retroactive cancellation of the order. By letter dated November 3, 20 IO, NYCHA issued another letter to Cepeda, which provides in pertinent part: The New York City Housing Authority did not enter into a H A P contract on your behalf for the rental package you submitted because you did not timely submit it before the expiration of your voucher. Although the Housing Authority began processing the untimely rental package, it did not enter into a HAP contract for the apartment because you did not provide access for the first two attempts to inspect the apartment, and the apartment failed the inspection on the third scheduled date. Because your rental package was not timely submitted and subsequently did not pass inspection, and Housing Authority policy does not provide for voucher extensions, we cannot enter a HAP contract on your behalf or provide you with a new Section 8 voucher. Cepeda commenced this Article 78 on or about March 18, 201 1, requesting that the Court reverse NYCHA s October 20, 2009 decision. In her verified petition, Cepeda, argues that the resolution by Justice Friedman does not ultimately annul the order to cancel the voucher, leaving petitioner without remedy that is sought by petitioner, a remedy that she feels is rightfully hers. While Cepeda acknowledges that the November 3,2010 letter is NYCHA s reply to the prior order of this court, she notes that (1) it is not the remedy she sought, and (2) NYCHA still fails to adequately explain its rationale and actions. Cepeda accordingly respectfully asks this court that the decision of the New York City Housing Authority 3 [* 5] c (NYCHA) dated 10/29fo9 canceling petitioner s section 8 voucher # 0609962, be set aside, annulled and that a new Section 8 voucher be issued. In its verified Answer, NYCHA asserts that Cepeda failed to submit her rental package until after her voucher had already expired, and that even if it had processed her late rental package, Cepeda s apartment did not pass its HQS inspection, a requirement for issuance of a Section 8 voucher. NYCHA argues that on at least two occasions, inspectors were not allowed access to the apartment. Once inspectors did gain access on September 24,2009, Cepeda s apartment failed inspection because there was a hole in the living room floor, a door was missing from a kitchen cabinet, the towel rack was broke, and the bedroom light fixture had no pull cord. NYCHA also reiterates its position that it does not provide for voucher extensions. Discussion .. It is well settled that judicial review of an administrative determination pursuant to CPLR Article 78 is limited to a review of the record before the agency and the question of whether its determination was arbitrary or capricious and has a rational basis in the record. See CPLR §7803(3); Gilmaiz v. N Y State Div.of Hozu. & Community Renewal, 99 N.Y.2d 144 (2002); Nestor v. New York State Div. of How. & Community Renewal, 257 A.D.2d 395 (1st Dep t 3 999). In short, Uludicial review of an administrative determination is limited to the grounds invoked by the agency. Matter of Rizzo v. DHCR, 6 N.Y.3d 104, 1 10 (2005) (quoting Matter ofAronosb v. Board ofEduc., 4 [* 6] Community School Dist. No. 22 of City of N. Y: , 75 N.Y.2d 997, 1000 (1 990)). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken without sound basis in reason and without regard to the facts. Mutter of Rohan v. New York C i v Housing Authority, 2009 NY Slip Op 30177U, at *6-*7 (Sup. Ct. N.Y. Co. Jan. 23,2009) (quoting Matter o Pel1 v. Board of Education, 23 N.Y. 2d 222,23 1 (1974)). f Cepeda has already argued to the Court that NYCHA s October 20, 2009 failure to renew her voucher was arbitrary and capricious, and Justice Friedman agreed, holding that it was irrational for NYCHA to make a determination that the voucher expired on May 29, without addressing that it had continued to process the voucher. As a remedy, Justice Friedman remanded this matter to NYCHA to issue a determination explaining the basis for its termination of Cepeda s voucher. As Justice Friedman has already determined that the October 20, 2009 letter was arbitrary and capricious, I cannot revisit . . this decision. See Martin v. City o Cohoes, 37 N.Y.2d 162, 165 (1975) ( The doctrine of f the law of the case is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned ). The fact that Cepeda was not satisfied with Justice Friedman s remedy i s not a proper basis for a new Article 78 proceeding. Cepeda also argues that the November 3, 201 0 letter still fails to adequately explain NYCHA s rationale and actions. However, the November 3,2010 letter provides 5 [* 7] explicit reasoning for NYCHA s actions It clearly states that NYCHA did not renew Cepeda s Section 8 voucher because of Cepeda s failure to timely submit a rental package prior to expiration of her voucher and that although it had begun to process her late rental package, her apartment failed inspection which prevented NYCHA from renewing her voucher. Cepeda does not dispute that her apartment failed inspection. Federal regulations provide that the [Housing Authority] may not give approval for the family to lease a dwelling unit, or execute a H A P contract, until the [Housing Authority] has determined that . . . [t]he unit has been inspected by the [Housing Authority] and passes HSQ. 24 C.F.R. § 982.305(a)(2). NYCHA s determination is in line with federal regulations, and therefore is not arbitrary and capricious. In accordance with the foregoing, it is hereby ORDERED and ADJUDGED that the petition of Iris J. Cepeda to vacate the .. decision of respondent New York City Housing Authority on October 20,ZO 10, and to reinstate her Section 8 subsidy is denied. This constitutes the decision, order and judgment of the Court. Dated: New York, New York August 19,2010 ENTER: UNFILED JUDGMENT This judgment has not been entered by the County C and notice of entry mnnot be served based hereon. obtain entry, counsel o authorized reprewntative must r appear in pet son at the Judgment Clerk s Desk (Room 1416). 6

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