Matter of White v New York City Hous. Auth.

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Matter of White v New York City Hous. Auth. 2011 NY Slip Op 33163(U) December 9, 2011 Supreme Court, New York County Docket Number: 401908/2011 Judge: Joan B. Lobis 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] NNEDON 1211212011 SUPREME COURT OF THE STATE OF NEW YORK DREIPSNT: - - - - - - - - NEW YORK COUNTY PART - Index Number : 401908/2011 WHITE, ROSA MARY 6 INDEX NO. VS NYC HOUSING AUTHORITY MOTION DATE Sequence Number : 001 MOTION ILO. NO. ARTICLE 78 MonoN am.. NO. T h m followfng pdpon, numbrrmd 1 to worm mad on thb motion tdfor Notloo of M o t h / Ordmr to Show Caurm Anowrhng Affldavlta - Afndavh - Exhlbttm ... - Exh- Replyfng Affldavtk Crdgt+Motlon: Yes d No Upon t h m fongolng plpon, tt h ordond that thb m a n I FILED NEW YORK COUNTY CLERKS OFFICE Dated: Check one: &. :I A Check if appropriate: NON-FINAL DISPOSITTON DlSPOSlTlON 0 DO-NOTPOST SUBMIT ORDER/JUDQ. REFERENCE 0 SETTLE ORDER /JUDcP, [* 2] ROSA MARY WHITE, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -againstNEW YORK CITY HOUSING AUTHORITY, Index No. 401908/1 I A FILED NEW YORK COUNTY CLERKS OFFICE Petitioner, p to ~ p litigant Rosa Mary White, brings this Article 78 proceeding, seeking g rcvcrsc the determination by respondent, the New Y r City Housing Authority ( TJYCHA ), ok declaring her ineligible for public housing following a determination after hearing. The final determination w s issued on April 27,201 1, following a hearing held before Chief Hearing Officer a Tomicic-Hines on M r h 22,201 1. ac Petitioner asserts that she resides at 388 Pearl Street, Apartment 7F,New York,New York 10038, in a housing complex known as the Alfred E. Smith Houses (the Apartment ). Petitioner s mother, Sarephine White, was the tenant of record at the Apartment until her death on August 13,2008. Petitioner states that she was part of the original family composition in 1971, but subsequently vacated. In 2004, Saraphine White requested to have petitioner reinstated as a Petitioner fails to sped@ the particular year in which she vacated. A September 2,201 0 decision by the Boroub Director states that the petitioner vacated the Apartment in 1996, while the August 9,2010 decision by the Housing Manager states that petitioner vacated the Apartment in 1992. [* 3] household member, but this request was not approved because petitioner's criminal background rendered her ineligible at that time. Petitioner contends that she has occupied the Apartment intermittently since 2002 and that she has continued to occupy the Apartment since Saraphine White's death. Petitioner seeks to stay in the Apartment as a remaining family member. On August 7,2010, petitioner met with the Housing Manager, Eloise Tucker ("Ms. Tucker"), in her effort to remain in the Apartment. Ms.Tucker disapproved her request, noting that although petitioner had once been an authorized occupant, shc vacated the apartment and did not thereafter obtain management's permission to rejoin the household. Ms.Tucker additionally noted that the 2004applicatjon submitted on petitioner's behalf was denied because a criminal background check had revealed that she was Ineligible for public housing status. ih On September 2, 2010, the Borough Director, Eneida Reverh, agreed wt the disposition of the Housing Manager denying petitioner's request for remaining family member status. Under "Findings and Reasons," the determination states that at the time of her death on August 13,2008, Saraphine White was the tenant of record and the sole occupant in the Apartment. The decision reiterated that petitioner's 2004 request to rejoin the household was denied due to the criminal background check. Petitioner appealed the September 2,201 0 determination to a hearing. After three adjournments, the hearing waa held on March 22,201 1 before H a i g Officer Tomicic-Hines. ern Petitioner appeared on her own behalf without legal counsel. She testified that she is fifty-two(52) years old. To show that she resided at thc Apartment, petitioner submitted into evidence public -2- [* 4] assistance benefits correspondence addressed to her at the Apartment, Additionally, petitioner submitted a 2009 W-2 form and death certificates for her father and her brother. To show that she paid rent and utilities at the Apartment, petitioner submitted into evidence a receipt of a money order from 2010 and telephone and cable television bills from November 2010. I addition, petitioner n submitted Saraphinc White s initial application for public housina which showed that ptdtioncr was an original household member. Petitioner further testified that she vacated the Apartment at some point, and that Management w8s unable to reinstate her status as a household member in 2004 due to her a m s t four ycars prior. Petitioner stated that in 2008, she received a one-year sentence for attempted criminal sale of a controlled substance, but that she has since stopped using drugs. She also stated that she hes paid the rent at the Apartment since she resumed living there. Housing Assistant Tracey Woodard ( Ms. Woodard ) testifled on behalf of NYCHA,stating that the affidavits of income signed by Saraphine White between 2004 and 2006 listed Saraphine White as the sole household member in the Apartment. NYCHA submitted Into evidence Saraphine White s death certificate, and Ms.Woodard testified that Saraphine White was also the sole occupant at the time of her death. In addition, NYCHA submitted a police reporl from petitioner s arrest for sale of a controlled substance to an undercovcc police officer in January 2000, and a certificate of disposition indicating that petitioner pled Builty to attempted criminal sale of a controlled substance in the third degree, for which she was sentenced to a one-year imprisonment and a six-month suspension of her license. NYCHA M e r submitted relevant pagcs of its aul Application M n a ,which states that individuals with 8 C felony conviction, such as attempted sale -3- [* 5] of a controlled substance, are ineligible for admission until at least six years after the sentence has been served with no additional or pending charges. Hearing Officer Tomicic-Hines issued a decision, dated March 30,201 1, denying petitioner s grievance. The denial is based on a number of grounds: Saraphine White s 2004 request for petitioner to rejoin the household waa denied; Saraphine White listed hcraelfasthesole occupant on her Affidavits of Income prior to her death; and petitioner is currently barred f o eligibility for rm public housing due to her January 2000 arrest and August 2008 plea to a C felony. As am% litigant,thc court must construe petitioner s pleadings liberally. Pezhman v. City ofNew Y & 29 A.D.3d 164,168 (1st Dep t 2006) -&sen v, R u 164 A.D.2d 809, 8 1 1 (1 st Dep t 1990). In examining petitioner s arguments, they will be considered 89 challenging the NYCHA s determination pursuant to C.P.L.R.8 7803(3), on the grounds that the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion. In an Article 78 prowding, the court s review of an administrative agency s determination is limited to whether the decision was made in violation of lawful procedures, w e h r hte it is arbitrary or capricious, or whether it was affected by an error of law. C.P.L.R. 8 7803(3); County, 34 N.Y .2d 222,231 ( I 974). The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified * and whether the administrative action is without foundation in fact. Ih,(citation omitted) (asterisks in original). 4- [* 6] A determination is considered arbitrary when it is made without sound basis in reason and is generally taken without regard to the facts. & H r ,it is undisputed that although petitioner was once a member of the household, ee shc vacated at some point; that Saraphine White s 2004 request to add petitioner as household member was denied; that Saraphine White did not list petitioner in her income affidavits in the a couple of years leading up to her death; and that petitioner w s convicted of a C felony, which renders her ineligible for public housing until M r h 2015, the sixth year following the completion ac of her sentence. Thus,this Court is constrained to find that it w s not arbitrary and capricious for a respondent to find that petitioner cannot succeed her mother,Saraphinc White, as a remaining family member in the Apartment. Jn re G w x, New Y & City b u s . A& Dep t 201 I); .In re Filonuk v. R m 84 A.D.3d 502 (1st Dep t 2011); h Hous.,48 A.D.3d 229 (1 st Dcp t 2008); 290 (1st Dep t 2004); :antra In re Oil1 Y. v, New York Q l y In re Faison v, New York Citv H w York City H o - A.D.2d 353,357 (1st Dcp t 2001); w 85 A.D.3d 514,514 (1st o d 283 9 A.D.3d 289, ,22 Misc. 3d 390 (Sup. Ct. N,Y. Co. 2008). Accordingly, it is hereby ORDERED and ADJUDGED that the petition is denied and this proceeding is dismissed. FILED Dated: NEW YORK COUNTY CLERKS OFFICE

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