Matter of Muhammad v Rhea

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Matter of Muhammad v Rhea 2012 NY Slip Op 32890(U) December 3, 2012 Sup Ct, NY County Docket Number: 403345/10 Judge: Barbara Jaffe 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. ANNED ON 121612012 [* 1] 4- MOTION SEQ. NO. Notice d MotionlOrder to Show Cause -Affidavits il N o w - Exhibits I MQ(s). Answering Affidavih - Exhibits Replying Affidavits O \ I a d Ihh(S).3?dL$: bcT Upon the f ~ r e g ~ i n g papers, it is ordered that this motion i s k I 2, 3. 20t2 ..................................................................... CHECK As APPROPRIATE: ........................... MOTION is: CHECK IF APPBOPRIb,TE: ................................................ I CHECK ONE: . d CASE DISPOSED GRANTED SETTLE ORDER 0DO MOT POST DENIED - oGRANTED IN PART &ER aSUBMIT ORDER 0FIDUCIARY APPOINTMENT . 0REFERENCE [* 2] TAALIBA MUHAMMAD, Petitioner, Motion Date: 9127112 Motion Seq. Nos.: 001, Calendar No.: 74 DECISION & JUDGMENT For a Judgment under Article 78 of the Civil Practice Law and Rules, For petitioner: Kathleen Brsnnan, Esq. Steven Banks, Esq. The Legal Aid Society Brooklyn Neighborhood Office 11 1 Livingston Street, 7thF1. Brooklyn, NY 11201 718-422-2853 For respondents: Kimberly W. Wong, Esq. Kelly D. MacNeal General Counsel New York City Housing Authority 250 Broadway, gthFl. New York, NY 10007 2 12-776-5261 By verified petition dated November 8, 20 10, petitioner brings this Article 78 proceeding seeking an order annulling respondent New York City Housing Authority's (NYCHA) August 11,2010 determination that she is ineligible to receive a Section 8 subsidy or, in the alternative, ordering NYCHA to grant her a rehearing. Respondents oppose, and by notice of cross-motion dated February 8,201 1, move pursuant to CPLR 321 1 and 7804(f) for an order dismissing the petition as moot. [* 3] By order to show cause dated April 26,20 1 1, petitioner moves for an order permitting her to amend her petition to set forth an additional claim for attorney fees and directing respondents to restore her to the position she would have been in had respondents not improperly found her ineligible for a Section 8 subsidy. Respondents oppose. 1 FACTUAL AND PROCEDURAL BACKGROUND . By decision dated August 11, 20 10, NYCHA denied petitioner s application for a Section 8 subsidy for her failure to verify her family composition. (Ver. Pet., Exh. A). Sometime thereafter, respondents voluntarily resumed processing petitioner s application, scheduling a new eligibility interview for May 23,20 11. (Affirmation of Kimberly W. Wong, Esq., in Reply, dated May 19,201 1, Exhs. 6,7). On May 23, 201 1, petitioner s second eligibility interview occurred, and NYCHA then requested that she provide additional documentation of her income before rendering its decision. (Petitioner s Factual Update, dated July 5,20 12 [Pet. Fact.]; Respondents Factual Update, dated July 2,2012 [Resp. Fact.], Exh. F). By interim order dated July 29,201 1, the petition, cross-motion, and motion to amend were held in abeyance pending the outcome of NYCHA s second review of petitioner s Section 8 subsidy application, and the parties were directed to jointly notify the court of the result. Petitioner did not submit documentation of her income to NYCHA until January 19, 2012. (Resp. Fact., Exh. F), On February 21,2012, NYCHA determined that petitioner is ineligible for a Section 8 subsidy, as her reported income is exceeded by her expenses and is thus unrealistic. (Id., Exh. G; Pet. Fact., Exh. B). Petitioner thereafter requested a hearing. (Pet, Fact.). 2 [* 4] On August 27,2012, petitioner s hearing occurred, and by decision dated September 12, 20 12, the hearing officer reversed NYCHA s February 2 1,2012 finding of ineligibility as petitioner presented sufficient evidence demonstrating that her income is realistic. (Letter of petitioner dated Sept. 20,2012). The decision provides that [dlue to funding constraints, NYCHA is not currently processing applications for Section 8 assistance. When NYCHA resumes processing applications, the Application and Tenancy Administration will contact [petitioner]. , (Id.), TI. CONTENTIONS By letter dated September 27,201 2, petitioner asserts that her petition should not be dismissed as moot as NYCHA has not yet found her eligible for a Section 8 subsidy, and thus, there exists a s ignificantissue that is likely to evade review. By letter of the same date, respondents counter that the proceeding is moot as NYCHA voluntarily annulled its August 11,20 10 decision and has continued to process petitioner s application. Moreover, they assert that the claims petitioner seeks to add to her petition regarding her placement on the Section 8 wait list are premature as NYCHA has not yet finished processing her application. 111. ANALYSIS Article 78 review of an administrative determination is limited to whether the decision was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed. (CPLR 7803131). Only final determinations are subject to such review. (CPLR 7801[1]; Essex County v Zuguta, 91 NY2d 447,452-53 [1998]). 3 [* 5] A proceeding is moot where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy. (Citineighhors Coalition o f Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d 727,728-29 [2004]). However, a court may retain jurisdiction despite mootness if recurring novel or substantial issues are sufficiently evanescent to evade review. (Id. at 729). As NYCHA voluntarily annulled its original determination of ineligibility and has found, after a second review of petitioner s case, that she is not ineligible for a Section 8 subsidy, vacatur of the August 11,20 10 defemination would have no effect on her ability to obtain the relief she seeks. Thus, the instant proceeding is moot, (See Matter qf Hernandez v Dept. of Hous. Preserv. & Dev., 68 AD3d 407 [lStDept 20091 [Article 78 proceeding challenging termination of subsidy dismissed as moot where respondent modified detemiination and reinstated subsidy after proceeding commenced, as vacating determination would have no practical effect ]). To the extent that petitioner now challenges the September 12,2012 decision insofar as the hearing officer did not expressly state that she is eligible for a Section 8 subsidy, such a challenge is premature, as NYCHA has not finished processing her application and thus has not rendered a final determination. Accordingly, there exist no issues likely to evade review that warrant retaining jurisdiction over this matter. As the instant proceeding is moot, petitioner s motion for leave to amend her petition need not be addressed. IV. CONCLUSION Accordingly, it is hereby ORDEMD and ADJUDGED, that the petition is denied in its entirety and the proceeding 4 [* 6] is dismissed; and it is further + ORDERED, that petitioner s motion for an order granting her leave to amend the petition is denied. ENTER: Barb ara Jaff ,JSC B A R B A U JAFFE DATED: J.S.C, December 3,2012 New York, NY DEC 0 3 2012 . * w JUDGMENT n - n entered by the County Clerk &d notice o entry cannot be sewed based hereon. I3 f obtain entry, counsel o authorized representative must r appear in p e m at the Judgment Clerk s oesk (Room 1416). 5

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