Matter of Hector v New York City Hous. Auth., Sedgwick Houses

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Matter of Hector v New York City Hous. Auth., Sedgwick Houses 2012 NY Slip Op 32945(U) December 6, 2012 Sup Ct, NY County Docket Number: 400716/12 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. ANNEDON I211312012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY 3AFe BARBARA JAFFE PRESENT: - J.S.C. Index Number : 400716/2012 HECTOR, ARCHIBALD INDEX NO. VS. MOTION DATE NYC HOUSING AUTHORITY SEQUENCE NUMBER : 001 - ARTICLE 78 3 The following papers, numbered 1 to Notice of MotionlOrder to Show Caurre Amwring Affidavits - Exhibib MOTION SEQ.NO. erg &L* 5 PART 001 - , we^ mad on this motion tdfor A v hC -Affidavits -Exhibib 3% La INo(s). 1 a INOW.3 ReplylngAffldavlts Upon the foregoing papers, it I ordered that thie motion io s U,NFILEDJUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannot be served based h m . To obtain entry, counsel or authorized *emu& appsav Sn person a the Judgment Clwk s Drwk (Ramh t 11) 4B. Dated: 1. CHECK ONE: 1b \ [b @ DE 0 6 2 W ..................................................................... & E DISPOSED 1 .............. MOTION IS: GRANTED WENIED GRANTED IN PART 0OTHER 3. CHECK IF APPROPRIATE: ................................................ 0SEITLE!ORDER 0SUBMIT ORDER 2. CHECK AS APPROPRIATE: aDO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] I ARCHIBALD HECTOR & ELLA HECTOR, Petitioners, Argued: Motion Seq. No.: Calendar No.: 7/31/12 00 1 74 DECISION & JUDGMENT For a Judgment under Article 78 of the Civil Practice Law and Rules, SEDGWICK HOUSES, For respondent: Andrew M.Lupin, Esq. Kelly D. Macneal Acting General Counsel New York City Housing Authority 250 Broadway, 9* F1. New York, NY 10007 212-776-5183 For petitioners: Archibald Hector, self-represented Ella Hector, self-representad 140 West 174th Street, Apt. 5E Bronx, NY 10453 347-824-5496 By notice of petition dated March 28,2012, petitioners bring this Article 78 proceeding seeking an order vacating and annulling respondent New York City Housing Authority's (NYCHA) May 20,2009 determination terminating their tenancy. Respondent opposes, and by notice of cross-motion dated May 23,2012, moves pursuant to CPLR 321 1 and 7804(f) for an order dismissing the petition, L BACKGROUND For over 30 years, petitioners have been the tenants of record of apartment 5E at 140 [* 3] West 174 hStreet in the Bronx, a NYCHA-owned apartment building. (Afirmation of Andrew M. Lupin, Esq,, in Support of Cross-Motion, dated May 23,2012 [Lupin Aff.], Exhs. A, D). Their lease provides, in pertinent part, that they are obligated to maintain their apartment in a clean, sanitary, and safe condition and to dispose of all garbage, rubbish, and other waste . . . in a sanitary, safe and lawful manner. (Id., Exh. A). NYCHA s Termination of Tenancy Procedures reflect that a tenancy may be terminated for failure to comply with these rules. (Id., Exh. B). On August 14,2008, petitioners were charged With failing to maintain their apartment i n a clean, safe and sanitary manner, stockpil[ing] nmerous flammable items in [their] apartment, including clothes, permitting an insect infestation to exist, and failing to dispos~ of their garbage in a safe, sanitary and lawful manner. (Id., Exh. C). A hearing on the charges was scheduled for September 1 1,2008 and then adjourned, as petitioners requested additional time to clean their apartment. (Zd., Exhs. C, D . ) At the hearing, held on April 7,2009, during which petitioners explained that their apartment was cluttered wt boxes because they had packed up their belongings in order to clean ih it and could not finish unpacking as Archibald works full-time and Ella s health problems limit her mobility. (Id., Exh. D). They also asserted that the apartment s storage space is insufficient and that many of the boxes are filled w t clothing that they intend to donate rather than throw ih out. (Id). The hearing officer thus permitted the record to remain open until May 15,2009 so that petitioners could clean the apartment and provide proof of it. (Id,), By decision dated May 20,2009, having received no proof that petitioners had cleaned their apartment, and noting that they had been given multiple opportunities to do so, the hearing 2 [* 4] officer sustained the charges against them and recommended termination of their tenancy. (Id.). On June 3,2009, NYCHA approved the hearing officer s determination and terminated petitioners tenancy. (Id,Exh. E). On March 28,2012, petitioners commenced the instant proceeding. 11. C O N m T O N S Petitioners assert that although they began to clean their apartment in May 2009, their ability to finish the process was compromised by the presence of visitors in their apartment in July 2009, an injury Archibald sustained in September 2010, their daughter s hospitalization and death in 201 1, Ella s ongoing health problems, and Archibald s full-time work schedule. (Pet.). They claim to have contacted Adult Protective Services in March 2012 seeking assistance in moving heavy items out of their apartment and again seek additional time to clean. (Id.). In opposition, and in support of its cross-motion, respondent observes that as the instant proceeding was commenced nearly three years after NYCHA terminated petitioners tenancy, it is untimely. (Lupin Aff.). In reply, petitioners reiterate that they intend to clem their apartment and require additional time to do so. (Affidavit of Archibald and Ella Hector in Reply, dated July 25,2012). III. 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 7803 [3I). Pursuant to CPLR 21 7( l), an Article 78 [* 5] final and binding on petitioners. As almost three years elapsec, ,etween N CHA's termination of petitioners' tenancy and ! the commencement of the instant proceeding, it is untimely. In any event, even if petitioners had timely commenced this proceeding, as they failed to maintain their apartment as required by their lease, even after having been provided multiple opportunities to clean it, the hearing officer's determination is neither arbitrary nor capricious. And, while the events that occurred after the April 7,2009 hearing undoubtedly caused them hardship and compromised their ability to clean their apartment, as the scope of my review is limited to record adduced before the hearing officer (Matter of Featherstone v Frdnco,95 NY2d 550,554 [2000]; Matter of Yarbough v Franco,95 NY2d 342,347 [2000]; Matter ofTorres v New York City How. Auth.,40 AD3d 328,330 [ ls* Dept 20073; Matter of Patrick v Hernandez,309 AD2d 566, $66 [19' Dept 2003]), there is no . legal basis for vacatur of her decision. IV.CQNCI USION According, it is hereby . ORDERED and ADJUDGED, that the petition is denied and the proceeding is denied i n its entirety. ENTER: UNFILED JUDGMENT l'hls judgment has not been entered by the Countv Ckerk o entry cannot be sewed based h&n. f To obtain eritry, counsel or authorized repmeritatbe musf glppeer in perm a the Judgment C W s De& (Room t 11) 4B. ' md noti& W BARBARA JAFFE J.S. c. DATED: December 6,2012 Mew York, NY 'DEC o 6 ZdQ 4

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