Matter of Harris v New York City Hous. Auth.

[*1] Matter of Harris v New York City Hous. Auth. 2011 NY Slip Op 51946(U) Decided on October 21, 2011 Supreme Court, New York County Singh, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2011
Supreme Court, New York County

In the Matter of the Application of Barbara Harris, Petitioner, For Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

against

New York City Housing Authority, Respondent.



403381/2010



Douglas Rosenthal, Esq., for Petitioner

New York City Housing Authority, for Respondent

Anil C. Singh, J.

In this CPLR Article 78 proceeding, petitioner Barbara Harris challenges the determination of respondent New York City Housing Authority ("NYCHA" or "Authority") terminating petitioner's tenancy in a public housing project upon a hearing examiner's finding that petitioner violated a stipulation permanently excluding her son from her apartment for possessing and/or selling crack cocaine. NYCHA opposes the application.

NYCHA is landlord of the Gravesend Houses project in Brooklyn. The public housing development consists of fifteen, 7-story buildings with approximately 1,680 residents.

Petitioner has been a resident in Gravesend Houses for more than 50 years. She is the tenant of record of 3194 Bayview Avenue, Apartment No.5F. It is a two-bedroom apartment. Ramel Gibson, petitioner's son, was an authorized resident of the apartment until an incident in 2007.

Petitioner has an adult daughter named LaShawn Harris. LaShawn, who is developmentally disabled, resides at the Brooklyn Developmental Center. LaShawn's home is a state residential center serving the disabled. She visits petitioner at the apartment on a frequent basis. According to a social worker, LaShawn benefitted from such visits "and from the understanding that her mother's home is available to her" (Verified Answer, Part 2, exhibit V).

The twelfth section of NYCHA's Resident Lease Agreement states in pertinent part:

12. TENANT'S OBLIGATIONS

It shall be the Tenant's obligations:

[*2]...

r. To assure that the Tenant, any member of the household, a guest, or another person under the Tenant's control, shall not engage in:

(i) Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the Development by other residents or by the Landlord's employees, or

(ii) Any violent or drug-related criminal activity on or off the Leased Premises or the Development,

(iii) Any activity, on or off the Leased Premises or the Development, that results in a felony conviction....

(Verified Answer to Amended Petition, exhibit A, pp. 5-6).

The nineteenth section of the lease states in part:

19. TERMINATION OF LEASE

a. The Landlord shall not terminate or refuse to renew this Lease other than for:

(i) violation of material terms of the Lease, such as failure to make payments due under the Lease or failure to fulfill any of the Tenant's obligations set forth in Paragraph 12 hereof, or

...

(iii) other good cause.

(Verified Answer, exhibit A, p. 10).

Petitioner's son was arrested on or near NYCHA premises in 2006. He was charged with possession and/or sale of crack cocaine.

As a result of the incident, NYCHA commenced an administrative proceeding against Ms. Harris for permanent exclusion. The Authority sought to terminate her tenancy on grounds of non-desirability. NYCHA asserted that Ms. Harris breached the Authority's rules and regulations in that, in violation of paragraphs 12(e), 12(q), or 12(r) of her lease agreement, she, as the tenant of record, had failed to cause Ramel Gibson to refrain from illegal activity.

On May 30, 2007, a settlement of the matter was approved which required the permanent exclusion of Ramel Gibson from petitioner's apartment.

Ms. Harris signed a Stipulation of Settlement of Administrative Action dated May 15, 2007, admitting the specifications. The stipulation stated in part:

3. The above-entitled administrative proceeding shall be disposed of by a determination of PERMANENT EXCLUSION OF RAMEL GIBSON. The Tenant represents that she will not permit RAMEL GIBSON to reside in, or visit, the Tenant at the subject apartment or any other Authority apartment or premises in which the Tenant may subsequently reside. [*3]

Furthermore, the PERMANENT EXCLUSION OF RAMEL GIBSON shall last ... for as long as Tenant is a tenant with the Authority. Tenant submits that RAMEL GIBSON is residing at unknown location.

...

5. The above-entitled administrative proceeding shall be disposed of by a determination of GENERAL PROBATION FOR A PERIOD OF ONE (1) YEAR. The Tenant agrees that during the probationary period the tenant shall not violate the terms of the Stipulation, and as an express condition of the Stipulation, the Tenant, any members of the household, guests, or persons who hold themselves out to be members of the household, shall not commit any act or omission which would constitute grounds for termination of tenancy as set forth under the Housing Authority's Termination of Tenancy Procedures, including the following grounds; Non-Desirability, Breach of any Rule and/or Regulation of the Authority, Chronic Breach of the Rules and Regulations of the Authority, Chronic Delinquency in the Payment of Rent, Non-Verifiable Income, Assignment or Transfer of Possession, and Misrepresentation. This probation shall commence upon the approval of this Stipulation by the Members of the Housing Authority.

...

7. The foregoing determination shall have the same force and effect as a decision and disposition by the Hearing Officer, and the terms and conditions shall remain in effect for any Authority apartment or premises in which the Tenant may subsequently reside.

...

9. This stipulation was read and explained to the tenant. The tenant acknowledges that she completely understands the terms of this stipulation and agrees to the terms set forth herein. Tenant shall inform all members of Tenant's household of the terms and conditions set forth in this stipulation. In particular, the Tenant shall inform all household members and any person(s) excluded herein that under no circumstances shall a person permanently excluded, or whose continued absence is required, be allowed entry into the apartment and if such person [is] found in the apartment, for whatever reason, the tenancy shall be terminated.

(Verified Answer, exhibit E, pp. 4-5) (emphasis in original).

On July 3, 2008, Ms. Harris signed a Stipulation of Settlement of Chronic Rent Delinquency. Ms. Harris admitted the charges and consented to a final determination of a continuation of probation for an additional period of two years.

NYCHA approved the stipulation. Accordingly, petitioner's tenancy was subject to the terms and conditions of the stipulation, including but not limited to probation for two (2) years in addition to the conditions in the prior proceeding requiring petitioner to exclude her son from the premises.

In February 2009, the New York City Police Department ("NYPD") had probable cause to believe that petitioner's son was dealing drugs again. The police obtained a search warrant. The execution of the warrant and ensuing events are described by NYPD Detective Martello in a police report as follows: [*4]

INVESTIGATION: NARCOTICS SALES 3194 BAYVIEW AVENUE, APT #5F

SUBJECT: OPERATION CYCLONE ARREST OF BUY SUBJECT

1. On Tuesday 2/3/09, I was assigned SNC search warrant #143/2009 to be executed on 2/5/09, during the case take down "Operation Cyclone". I was informed by Sgt. Caban and Det. Terrell that male known as Ramel Gibson Nysid #9896796L lives at the location and is wanted for felony sale to an undercover detective of two (2) dates.

2. On Thursday 2/5/09, the above warrant was executed under the supervision of Capt. Zolga and Lt. Carlton with the following results. The ... recovery of eleven (11) ziplock bags of crack cocaine, five (5) cellular phones. Also recovered was a NY State ID and mail bearing the name and address (3194 Bayview Avenue) of Gibson, Ramel and photos of subject. I also vouchered an answering machine with three (3) messages left by the subject during the execution of the warrant. Mr. Gibson was not present during this time. After obtaining information where Mr. Gibson was staying. Lt. Carlton, Det. Dejesus and Officer Nieves proceeded to 361 Sumpter Street, apt #3R.

3. At approximately 0750 hours, Ramel Gibson was apprehended and transported to the 60 precinct where he was positively identified by Undercover Detective #C0072 as the person who did sell a quantity crack cocaine on two (2) dates. I was informed by Lt. Carlton that the subject was in possession of two (2) keys.

4. Lt. Carlton returned to 3194 Bayview Avenue, apt #5F and handed me the keys. One key was then placed into subject door and the second key was place [sic.] into the lobby door to see if the keys were operational. This was met with positive results. The keys were vouchered under voucher #P 572681 and the lock cylinder (apartment door) was also vouchered (P572679) as arrest evidence.

(Verified Answer, exhibit R).

The police arrested petitioner and took her to the station.

On February 10, 2009, Ramel Gibson pled guilty to criminal sale of a controlled substance 5th Degree PL 220.31 00 DF (Dangerous Drug). The charges against petitioner were dropped, and her case was dismissed and sealed (Verified Answer, Part 2, exhibit W).

A NYCHA manager met with Ms. Harris on February 18, 2009 to discuss what happened. The manager told Ms. Harris that the matter was being forwarded to NYCHA's Termination Unit.

By an amended notice and specification of charges dated September 28, 2009, NYCHA charged Ms. Harris with non-desirability, violation of permanent exclusion, breach of rules and regulations, and violation of probation. The Authority alleged, among other things, that petitioner violated her May 2007 agreement to exclude her son from her apartment.

Administrative hearings were held before Ester Tomicic Hines, Chief Hearing Officer, on [*5]August 2, 2009; September 25, 2009; December 11, 2009; February 19, 2010; March 19, 2010; June 4, 2010; and July 14, 2010. The record was kept open until August 4, 2010, for the submission of written closing statements, which were timely submitted.

The hearing officer issued a six-page determination dated October 7, 2010, stating in part as follows:

Findings and Conclusions:

The charges are sustained. The credible testimony and evidence presented at this hearing demonstrate that although the tenant agreed in May 2007, Case No. 2315/07 to exclude her son Ramel Gibson from the subject apartment in order to preserve her tenancy, she failed to comply with the requirements of permanent exclusion. The 2007 administrative proceeding was initiated against the tenant by NYCHA based on charges that Ramel Gibson unlawfully possessed and sold crack-cocaine. The tenant agreed to permanently exclude Ramel and was quite clearly on notice as to her son's drug related activities as of 2007.

Detective Martello testified credibly that he searched the subject apartment on February 5, 2009 and recovered bags of crack-cocaine from the kitchen cabinet. The report prepared by Detective Martello after the search indicates the quantity recovered was eleven zip lock bags of crack-cocaine (Exhibit 14); this quantity is consistent with the amount vouchered by Detective Terrell (Exhibit 7). Detective Martello performed a field test on one bag of the crack-cocaine recovered from the tenant's kitchen cabinet which resulted in a positive identification of crack-cocaine. Despite the submission into evidence of the Department of Justice Validation Study, there has been no sufficient proof to show that the items recovered from the tenant's kitchen and tested by Detective Martello were not in fact, crack-cocaine.

The tenant's statement that she did not know about the crack-cocaine recovered from the apartment is not persuasive. The police recovered eleven zip lock bags of crack-cocaine from the tenant's kitchen cabinet, a common area of the apartment over which the tenant exercises a great deal of dominion and control. The recovery of this controlled substance indicates that Ramel Gibson returned to the subject apartment well after his permanent exclusion, stored crack-cocaine in the kitchen area of the apartment and sold the crack-cocaine within Gravesend Houses.

Although the tenant denied her son's presence in the subject apartment since his permanent exclusion in May 2007, her testimony lacked credibility and was self serving. On February 5, 2009 the police recovered a NYS Identification Card issued to Ramel Gibson on June 23, 2008, showing the subject apartment as his residence, inside of a bedroom within the subject apartment. If Ramel Gibson did not reside with the tenant, as indicated in her testimony, why would he obtain a NYS Identification Card showing the subject apartment as his residence, one year after he was excluded and why would that identification be stored in the tenant's apartment in February 2009? If Ramel Gibson resided at 361 Sumpter Street he could have obtained identification showing that address as his residence.

Detective Terrell testified credibly that a set of keys found on Ramel Gibson's person when he [*6]was arrested at 361 Sumpter Street, were keys which fit the lock on the tenant's apartment door lock, both of these items were vouchered (Exhibit 7). Although the tenant testified that her son does not have keys to her apartment since 2007 when he was excluded from the apartment, a set of keys to the subject apartment was found on his person on February 5, 2009 which shows that he had ample access to the tenant's apartment.

Although the criminal charges against the tenant relating to her arrest on February 5, 2009 were dismissed, the tenant is still culpable for the drugs stored in her apartment by her son, for allowing her son to return to her apartment in violation of the stipulation of permanent exclusion in Case No. 2315/07 and violation of probation from the stipulation she signed in Case No. 3497/08.

The length of the tenancy and evidence presented for mitigation with respect to Lashawn's visitation to the subject apartment were considered but are insufficient to warrant the imposition of a lesser sanction. The tenant failed to abide by the terms of the stipulations of permanent exclusion and probation; Ramel Gibson continued to engage in drug related activities within the apartment and the development. Probation and permanent exclusion have not been an effective deterrent or means to preserve this tenancy and therefore, NYCHA is now entitled to their requested disposition.

DISPOSITION

Termination of tenancy

(Verified Answer, Part 2, exhibit Z, pp. 5-6).

On October 20, 2010, NYCHA approved the Hearing Officer's decision and disposition finding the tenant ineligible for continued occupancy. Accordingly, petitioner's tenancy was terminated.

Petitioner, pro se, commenced the instant Article 78 proceeding by filing a verified petition on November 22, 2010. Subsequently, she retained counsel, who filed an amended petition.

Discussion

The role of a court in reviewing a decision of an administrative agency, such as NYCHA, is limited, with the standard of review being whether the administrative determination was in violation of a lawful procedure; was affected by an error of law; or was arbitrary and capricious and without a rational basis in the administrative record (see, CPLR 7803; Matter of Pell v. Board of Educ., 34 NY2d 222, 231 [1974]). The court cannot conduct a de novo review of the facts and circumstances or substitute the court's judgment for that of the agency's determination (see, Greystone Management Corp. v. Conciliation and Appeals Bd., 94 AD2d 614, 616 [1st Dept. 1983], affd. 62 NY2d 763 [1994]). Instead, the court reviews the record as a whole to discern whether a rational basis exists to support the findings of the administrative agency (Nelson v. Roberts, 304 A.D.2 20 [1st Dept. 2003]). Where an administrative determination necessitates an evaluation of the facts within an administrative entity's area of expertise, the [*7]determination must be accorded great weight and judicial deference (Nelson v. Roberts, 304 AD2d 20, 23 [1st Dep't 2003]; Flacke v. Onondaga Landfill Systems, Inc., 69 NY2d 335, 363 [1987]).

An administrative determination is arbitrary or capricious if made "without sound basis in reason" and "taken without regard to the facts" (Pell v. Board of Education, supra). While judicial review must be meaningful, it is not the role of the courts to weigh the desirability of any action or to choose among alternatives (6 NY Jur.2d Article 78 sec. 13). "The judicial function is at an end once it has been determined that an agency's conclusion has a sound basis in reason" (6 NY Jur.2d Article 78 sec. 15).

Petitioner first contention is that NYCHA relied heavily on uncorroborated hearsay evidence. According to petitioner, such evidence included the statement of an unnamed informant as to an alleged drug sale by Ramel Gibson; Gibson's own statement of his address on his state identification card at a time when he had no permanent address; and vaguely characterized suggestions that laboratory tests had been performed at some point. Petitioner argues that a new hearing should be ordered inasmuch as the procedures by which petitioner's hearing was conducted leave the decision "highly suspect and questionable as well as arbitrary and capricious given all the hearsay evidence" upon which it was based.

Hearsay evidence is generally admissible in an administrative proceeding (O'Hara v. Brown, 193 AD2d 564 [1st Dept. 1993]). "The mere admission of hearsay evidence does not require a reversal of a determination" (2 N.Y.Jur.2d Administrative Law section 257). "However, where the receipt of hearsay evidence is so prejudicial as to have a tendency to deprive a party of a fair hearing, its admission may require a reversal of the determination, even though there may be other substantial, competent evidence in support of the allegations" (Id.)

In the instant matter, the Court finds that the record reflects that petitioner received a fair hearing, even if the hearing officer admitted and relied upon hearsay evidence to some extent.

Petitioner's second contention is that NYCHA failed to prove that petitioner permitted Gibson to reside in or visit her apartment as an unauthorized occupant or guest.

An administrative agency is entitled to rely on circumstantial evidence as a basis for its findings (see, for example, Inwood Post No. 581, American Legion v. State Bingo Control Commission, 22 AD2d 884 [1st Dept. 1964]). An agency is permitted to draw reasonable inferences from any proven fact and utilize its own experiences in drawing such inferences (Id.)

Assuming for the sake of argument that there is no direct evidence that petitioner permitted Gibson to reside in or visit her apartment, there is overwhelming circumstantial evidence that she permitted him to do so. Such evidence includes the keys to petitioner's apartment that were found on Gibson's person by the police; the New York State identification card issued on June 23, 2008, showing that Ramel Gibson resides at petitioner's address (Verified Answer, Part 2, exhibit M); and the numerous bags of crack cocaine that were discovered in petitioner's kitchen when police searched the premises.

The Court has carefully reviewed the voluminous record in this proceeding, including the hearing examiner's detailed, fact-specific determination. We find that the totality of the record reflects that the petitioner was given a fair hearing and that NYCHA did not violate her right to procedural due process in any respect. We find further that the hearing examiner's findings, conclusions and disposition are rational and well-reasoned. [*8]

Finally, we turn to petitioner's contention that termination of her tenancy is a penalty so disproportionate to the offense as to be shocking to the conscience.

A decision handed down recently by the Appellate Division illustrates the type of circumstances under which a court will vacate the penalty of termination and remit for imposition of a lesser penalty.

In Perez v. Rhea, 87 AD3d 476 [1st Dept 2011], a subsidized housing tenant commenced an Article 78 proceeding against NYCHA, seeking to annul and vacate, or, in the alternative, remand for imposition of a lesser penalty, the authority's termination of her tenancy based upon findings that she failed to report employment income.

Petitioner Jacqueline Perez, 37 years of age, had lived in NYCHA housing for virtually her entire life and in the subject apartment for more than 17 years. Perez, a single mother who was employed as an assistant bookkeeper, resided in her apartment with three children, two of whom had diagnosed disabilities.

In 2006, Ms. Perez was informed that criminal charges were being brought against her due to the underreporting of her income. She subsequently pleaded guilty to petit larceny, a class A misdemeanor. Perez was given a conditional discharge so long as she abided by the terms of a stipulation entered into among herself, the assistant district attorney, and NYCHA, wherein she agreed to pay NYCHA the sum of $300 per month until the indebtedness was repaid.

Subsequently, NYCHA notified Perez that her tenancy was in danger of being terminated, charging her with, among other things, non-desirability. The hearing officer sustained the charges and recommended termination of Perez's tenancy.

The Appellate Division held that NYCHA's decision to terminate the tenancy was in violation of its own mandated procedures and was a penalty shockingly disproportionate to the offense. The Court wrote:

Where petitioner, a model tenant, has faithfully abided by an agreement with NYCHA to make full restitution of her rent underpayments, the decision to terminate her tenancy constituted a disproportionate penalty that would likely leave petitioner, the single mother of three children who also reside in the apartment, two of whom have diagnosed disabilities, homeless.

Perez, 87 AD3d at 476.

The instant facts are distinguishable in three important respects. First, petitioner Harris has failed to abide by the stipulation to exclude Ramel Gibson from the apartment because of his illegal activity. Second, petitioner's adult daughter, who is developmentally disabled, does not reside in the premises but only visits the apartment. Third, petitioner's failure to exclude Ramel Gibson from the premises endangers NYCHA residents by exposing them to criminal activity.

The Court finds that the termination of petitioner's tenancy was not shocking under such circumstances.

For the above reasons, it is hereby

ADJUDGED that the petition is denied, and the proceeding is dismissed.

The foregoing constitutes the decision and order of the court. [*9]

Date:______________________________

New York, New YorkAnil C. Singh