Matter of Rivera v New York City Hous. Auth.

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Matter of Rivera v New York City Hous. Auth. 2012 NY Slip Op 32579(U) October 8, 2012 Sup Ct, NY County Docket Number: 402770/11 Judge: Peter H. Moulton 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 NEW YORK COUNTY Justice - Index Number : 402770/2011 RIVERA, AWILDA vs. NYC HOUSING AUTFORITY SEQUENCE NUMBER : 001 INDEX NO. MOTION DATE MOTION SEQ. NO. ARTICLE 78 ,were read on this motion to/for The following papers, numbered Ito r f c l p u s e -Affidavits t - Exhibits s + w * C IN O W I Iw4.L IW s ) . 3 - Exhibits [&* W U ) this t n u h r i s & m Dated: 1. /y.p & - 3. CHECK IF APPROPRIATE: MOTION 1 ................................................ ,J.S.C. PETER M. MOULTON EME ~ ~ h d t ! & & & k I O N CHECK ONE: ............................................................... 2 GHECK AS APPROPRIATE: ........................... . y NlED \ uSETTLE ORDER 0DO NOT POST OTHER GRANTED IN PART SUBMIT ORDER 0FlDUCl ARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 40 B _ _ _ _ _ - _ _ _ _ _ _ _ - _ _ _ + + _ -X _ In the Matter of the Application of AWILDA RIVERA, Index No 402770/11 Petitioner, For a Judgment Pursuant to Article 7 8 of the Civil Practice Law and Rules, -againstNEW YORK CITY HOUSING AUTHORITY, Respondent. _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ -X - - PETER H. MOULTON, J.S.C.: Petitioner brings this Article 7 8 proceeding to vacate the decision of hearing officer Joan Pannell ('\PanneLJ")dated July 21, 2011, which denied petitioner's application to vacate her default in failing to appear on the adjourned date of a chronic rent delinquency hearing, despite her previous t w o appearances. Pannell denied petitioner's application in light of her 'o nt having explained her delay for over a year in so doing, or her failure to pay rent since 12/2010.11 Backsround By notice dated January 14, 2010, respondent New York City Housing Authority the hearing date ( "NYCHA" o f or "respondent") advised petitioner of February 10, 2010 regarding potential termination of her tenancy for chronic rent delinquency. The [* 3] charges attached to the notice reflected that petitioner paid her rent between two weeks to approximately two months a f t e r t h e due date. B y letter dated April 2, 2010, the hearing was adjourned to May 11, 2010 and the charges were amended to reflect further late payments, and that as of February 12, 2010 no rent had been received f o r September-February 2010. The tenant appeared at the hearing on May 11, 2010 and signed a stipulation of adjournment to June 29, 2010. On June 2 9 , 2010 she appeared again at the hearing and signed another stipulation of adjournment to July 27, 2010. An inquest was held after petitioner failed to appear on July 27, 2010. submitted at the inquest indicated that The Ledger Card petitioner had four children, temp employment, a ten year tenancy, and owed $837.00 in rent, at $163.00 per month. * By decision dated August 2, 2010, Pannell stated charges are sustained. The record contains no mitigating circumstances. It would be unlikely, of course, f o r the record to contain any evidence of mitigating circumstances when petitioner did not appear. By Determination of Status letter dated August 18, 2010, respondent approved the hearing officer s decis&an, and terminated petitioner s tenancy. The reasons for the adjournments are not explained. 2 [* 4] One day later, on August 19, 2010, petitioner was evicted in connection with a previously filed nonpayment However, by Decision and Order dated August 23, proceeding. 2010, Housing Court Judge Sabrina B. Kraus 'restored petitioner to possession, and directed that NYCHA accept Department of Social Services checks (covering all arrears through the date of leaving a rent credit for September, 2010.2 restoration, Judge Kraus, decision indicated that the parties agreed that $ 1 , 2 6 7 . 8 0 was owed through August 2010. She directed respondent to accept $1,500.00 in Department of Social Services checks, leaving petitioner with a credit towards September 2010 rent. On July 14, 2011, nearly one year later, petitioner moved to reopen the default. She filled out a form entitled New York City Housing Authority Office of Impartial Hearings Request to the Hearing Officer for a New Hearing (the \'Fom") . Petitioner ' indicated on the Form that \\Idid came for 2010 but I didn't g e t a letter to come this year" and listed the defense "rent is go to be pay today." 1 21n support of her petition, petitioner states that ' received my apartment back on August 23, 2010 But wasn't notified of a n o t h e r missed appointment on July 2 7 , 2010." The court requested additional briefing on whether NYCHa's termination of petitioner's tenancy was affected by the fact that petitioner \'received [her] apartment back on August 2 3 , 2010.,' 3 . .. . .. . . . . . [* 5] Respondent petitioner's application. application was 'exceeds an submitted made affidavit in opposition to Respondent maintained that because the nearly one year after the default, it what can be considered a reasonable amount of time." Respondent also argued that petitioner "failed to establish an excusable default since her excuse is unintelligible."' Further, respondent argued that petitioner continued to be chronically late, citing rent allegedly owed from November 2010. Respondent omitted any mention of the fact that Housing Court Judge Sabrina ¬3. Kraus had ordered petitioner restored to possession of the apartment on August 23, 2010. Discussion In opposition to the petition, respondent cites to New York City Housing Authority Termination of Tenancy Procedures, which provide that: If the tenant fails to answer or appear at the hearing the Hearing Officer shall note the default upon the record and shall make his/her decision on the record before him. Upon application of the tenant made within a reasonable time after his/her default in appearance, the Hearing Officer may, for good cause shown, open such default and set a new hearing date. (Ex B 1 8) .3 3Respondent further notes that NYCHA's Termination of Tenancy Procedures defines "chronic delinquency in the payment of r n ' et' as the "repeated failure or refusal to pay rent when due" (id. 7 1 [ D l ) * Repeated failure or refusal is defined in the NYCHA 4 [* 6] NYCHA's requirement that the application to reopen a default must be made within a reasonable time "guards against unnecessary and dilatory applications" (Matter of Yarbough v Francis, 9 5 NY2d 342 [20001 ) . NYCHA's good cause requirement is similar to the "excusable default" requirement for vacating a judicial proceeding under CPLR § 5015 and requires the party to demonstrate an excusable default and a meritorious defense (see Matter of Daniels v Popolizio, 171 AD2d 596 York C i t y Hous. A u t h . , officer's- decision, [lst D e p t 19911; see a l s o Gore v N e w 300 AD2d 541 [2d Dept 2 0 0 2 1 ) regarding whether the e tenant The hearing established excusable default and a meritorious defense, must be upheld unless it is irrational or arbitrary and capricious ( M a t t e r of Daniels, 171 AD2d 596, s u p r a ) . Pannell's decision not to reopen petitioner's default was not rationally appropriate demonstrated based because standard excusable of she to consider i.e., whether a meritorious failed review, default Although respondent argues that ai rd the the petitioner defense. the hearing officer correctly refused to reopen petitioner's default because petitioner did not raise an excusable default, Pannell only considered petitioner's delay in moving to reopen the default. Further, although the Management Manual Termination of Tenancy, Chapter IV, as the failure to pay rent within the month due 't least three a times during any 12 months period" (Ex C, page 4). 5 [* 7] hearing officer faults petitioner f o r moving to vacate the default one year later, respondent submitted no proof petitioner was served with either to Pannell that Pannell s August 2, 2010 decision or the August 18, 2010 Determination of Status letterb4 Accordingly, Pannell s conclusion, that petitioner did not move to reopen her default within a reasonable amount of time, is irrational and not supported by the record. Even if Pannell implicitly found that petitioner failed to establish an excusable default and a meritorious defense, the There is no evidence that decision is still not rationally based. petitioner s default was intentional, as opposed to the being the product of confusion (see Matter of Detres v New York C i t y Hous. Auth., 65 AD3d 442 [lst Dept 20091 [further consideration and investigation by the agency was warranted where record reflected that the tenant was confused]). In filling out the Form, petitioner indicated that 1 did came f o r 2010 but I didn t get a letter to come this year. While the stipulation petitioner signed on June 29, 2010 reflected the next hearing date at which she failed to appear, petitioner did in fact appear for the 4The hearing officer was also apparently unaware that petitioner had been restored to the apartment nearly one year earlier by order of Housing Court Judge Sabrina B. Kraus. Disclosure of these facts might have provided Pannell with an explanation for petitioner s delay. 6 [* 8] hearing on two prior occasions. It is not rational to fault a tenant for merely being confused. Moreover, even if Pannell implicitly decided that petitioner did not raise a meritorious defense, Pannell acted arbitrarily in considering petitioner s failure to pay rent since December 2010, the subject the original or amended charges ( s e e which was Matter of Butler [petitioner was officer in a v Christian, deprived chronic due of rent AD2d 88 process delinquency Dept 19821) because the hearing hearing reached 952 [2d his determination based on tenant s failure to pay rent outside of the period that was specified in the charges]). She further compounded the problem by failing to consider that rent was paid in full for the period at issue. Whether a problem has been cured is an accepted defense ( s e e Matter of Vazquez v N e w York C i t y Hous. Auth. (Robert F u l t o n Houses), 57 AD3d 3 6 0 [lst Dept 20081 [hearing officer found that the tenant cured her chronic rent delinquency by the time of the decision]). The Form itself indicates the !Defense that the problems have been corrected. It informed is also that troubling Judge that Sabrina B. the hearing Kraus officer was restored petitioner not to possession and directed NYCHA to accept all rent due for the period in question. A tenant can be restored to possession in appropriate circumstances based on good cause shown (see Harvey 1 3 9 0 LLC v Bodenheim, 9 6 AD3d 664 [lst Dept 2 0 1 2 1 ) . 7 The judge s [* 9] order was apparently not appealed and/or if it was, it was not reversed. This fact cannot be considered by this Court because it was not presented to the agency f o r consideration ( s e e Yarbough v F r a n c i s , 95 NY2d 342, supra; Matter of Evans v New York C i t y , 94 AD3d 8 8 5 (2d Dept 21021). However, it was not considered because NYCHA did not reveal it, and petitioner did not know enough to assert it. Had this fact been known, the hearing officer may have reached a different conclusion. Accordingly, it is ADJUDGED that the petition is granted; and it is further ADJUDGED that t h e hearing officer s decision dated July 21, 2011 denying petitioner s application to vacate her default in failing to appear at a hearing on July 27, 2010 is vacated; and it is further ADJUDGED that petitioner s default in appearing at a hearing on July 27, ORDERED 2010 is vacated; and it is further that the matter is remanding for a new hearing on whether petitioner s tenancy should be terminated based on chronic rent delinquency, with notice to mailed to petitioner Although outside the purview of this decision, it is questionable whether NYCJ3.A could evict petitioner in a holdover proceeding based upon its August 18, 2010 termination of petitioner s tenancy in light of Judge Kraus August 23, 2010 Decision and Order restoring petitioner s tenancy. 8 [* 10] Court. Dated: October 8, 2012 ENTER : 9

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