Clay v New York City Dept. of Hous. Preserv. & Dev.

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Clay v New York City Dept. of Hous. Preserv. & Dev. 2012 NY Slip Op 32958(U) December 12, 2012 Sup Ct, New York County Docket Number: 401455/12 Judge: Manuel J. Mendez 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. SCANNEDON I211712012 [* 1] SUPREME COURT OF THE STATE PRESENT: OF NEW YORK - NEW YORK HON. MANUEL J. MENDEZ COUNTY 13 PART Justice DARLEENE CLAY, INDEX NO. 401455/12 Petitioner, MOTION DATE 11-14-2012 - v MOTION SEQ. NO. THE NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, LINDSAY PARK, and HPD HEARING OFFICER HELEN LEVY, 001 MOTION CAL. NO. Respondents. The following papers, numbered 1 to 3 Notice of Motion/ Order to Show Cause' Answering Affidavits - Exhibits Replying Affidavits Cross-Motion: Yes X N6?'*' Upon a reading of the foregoing cited papers, it is Ordered and Adjudged that the Petition i denied and the proceeding is dismissed. s In this Article 78 proceeding, Petitioner, Darleene Clay, seeks a judgment annulling Respondent, New York City Department of Housing Preservation and Development's (HPD), May 17, 2012 decision vacating the stay of execution of the Certificate of Eviction issued against Petitioner by HPD September 29, 201 1, Petitioner is the tenantlcooperator of record of 30 Montrose Avenue, Apt. 16M, Brooklyn, New York, 11206 (the "Apartment"). Respondent Lindsay Park is an Article II housing company and the landlord of the building located at 30 Montrose Avenue. For some of the period relevant t o this proceeding, Petitioner was relocated by Lindsay Park t o another apartment due t o damage which made the Apartment uninhabitable . Respondent Lindsay Park commenced an administrative proceeding before HPD seeking a certificate of eviction on December 12, 2010, alleging that Petitioner violated a substantial obligation of her lease agreement by chronically and consistently failing t o pay rent on time. [* 2] The administrative proceeding was settled pursuant t o a stipulation dated February 16, 201 1. Lindsay Park brought a motion t o restore the administrative proceeding on March 11, 201 1, alleging that Petitioner had defaulted on the February 16, 20 11 stipulation. The administrative proceeding was again settled pursuant t o a stipulation dated June 8, 201 1 Lindsay Park brought another motion t o restore the administrative proceeding on June 21, 201 1, alleging that Petitioner had defaulted on the June 8, 201 1 stipulation. HPD held an administrative hearing on August 17, 201 1. On September 13, 201 1 HPD Hearing Officer Helen Levy issued a decision (the "HPD Decision"). The HPD Decision issued a certificate of eviction against Petitioner, but stayed the certificate for three years because, during the hearing, Petitioner submitted a notarized letter from her sister wherein Petitioner's sister guaranteed t o pay Petitioner's rent. The HPD Decision made clear that if Petitioner (or her sister) failed t o comply with any of the conditions imposed by the HPD Decision, the stay would be reconsidered. On September 29, 201 1, HPD Hearing Officer Helen Levy issued an amended decision (the "Amended Decision") which altered the HPD Decision by adding, "[Tlhis Certificate of Eviction and all conditions of the stay, as enumerated above, shall apply and be fully enforceable when Ms. Clay returns t o her original apartment." Lindsay Park commenced an Article 78 proceeding on November 17, 201 1 seeking t o reverse the Amended Decision. According t o Petitioner, she returned t o her Apartment on January 17, 2012. Lindsay Park brought a motion t o restore the administrative hearing before HPD on February 17, 2012, alleging that Petitioner failed t o comply with the conditions of the Amended Decision. Lindsay Park later withdrew this motion. Lindsay Park brought another motion t o restore the administrative hearing before HPD on March 7, 2012, again alleging that Petitioner failed t o comply with the conditions of the Amended Decision. The Article 7 8 proceeding initiated by Lindsay Park on November 17, 201 1, was transferred t o the Appellate Division, Second Department for [* 3] substantial evidence review on March 23, 2012. That Article 78 proceeding appears t o be sub judice before the Appellate Division at this time. HPD held an administrative hearing on May 1, 2012. On May 17, 2012, HPD Hearing Officer Helen Levy issued a decision (the "Eviction Decision"). The Eviction Decision noted that Petitioner had made some, but not all, of the payments due since the Amended Decision. The Eviction Decision vacated the stay of execution of the Certificate of Eviction that had been granted in the Amended Decision. Petitioner commenced the subject Article 7 8 proceeding on June 27, 2012 seeking t o reverse the Eviction Decision. The basis for this Article 78 proceeding stated in Petitioner's papers is that Petitioner, "was under the impression [that] the last sentence in the Amended Decision meant [Lindsay Park] could not bring any petitions against [her] until after January 17, 2012, [her] official move in date back [to the Apartment]." Respondent HPD Hearing Officer Helen Levy has requested that the instant proceeding be transferred t o the Appellate Division, First Department, for a substantial evidence review per CPLR Section 7803(4). Lindsay Park commenced a holdover proceeding against Petitioner in New York Civil Court, Kings County, Housing Part. The first question before this Court is whether the proceeding should be transferred t o the Appellate Division, as this may obviate the need for a more detailed analysis of the proceeding. In her papers, HPD Hearing Officer Helen Levy states that the proceeding should be transferred because, "a CPLR [Section] 7803(4) substantial evidence review is required as the final agency determination challenged was made as a result of a hearing at which evidence was taken pursuant t o direction of law ." Respondent Levy's argument misstates the language and purpose of CPLR Section 7803(4). If what Respondent Levy proposes were the standard for transfer, there would be few cases where transfer was not mandated. CPLR Section 7804(g) states that where a substantial evidence question, as specified in CPLR Section 7803, is raised, and there is not an objection which could otherwise terminate the proceeding, the court is directed t o transfer the case t o the Appellate Division. CPLR Section 7803(4) defines the referred t o substantial evidence question. A substantial evidence questions is one where a party challenges, "whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant t o direction by law is, on the entire record, supported by substantial evidence." [* 4] Respondent Levy's argument for transfer fails in t w o respects. First, simply because an agency determination is the result of a hearing does not necessitate transfer. Second, nowhere in her papers does Petitioner suggest that the Eviction Decision is not supported by substantial evidence. Now the Court must consider Petitioner's basis for the subject proceeding. Petitioner's papers included t w o statements that purported t o be her basis for the proceeding. The first statement was that Petitioner, "was under the impression the last sentence in the Amended Decision meant [Lindsay Park] could not bring any petitions against [Petitioner] until after January 17, 2012, [Petitioner's] official move in date back [to the Apartment]." The second statement was that, "the reason for [the] requested reversal is due t o the last line in [the] Amended Decision which clearly stated: 'The Certificate of Eviction and all its conditions of the stay as enumerated above shall apply and be fully enforceable WHEN Ms. Clay returns t o her original [Alpartment.'" As Petitioner offers no further explanation as t o the second statement, this Court is left with only the fact that Petitioner bolded and underlined the word "when". An administrative decision will withstand judicial scrutiny if it is supported by substantial evidence, has a rational basis and is not arbitrary and capricious. See Matter o f Pel1 v. Board of Education, 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321 (1974); Ansonia Residents Assln v. New York State Div. of Housing and Community Renewal, 75 N.Y.2d 206, 551 N.E.2d 72, 551 N.Y.S.2d 8 7 1 (1989). Judicial review of an administrative determination under Article 78 is confined t o the facts and record adduced before the agency. See Featherstune v. Franco, 9 5 N.Y.2d 550, 7 4 2 N.E.2d 607, 720 N.Y.S.2d 93 (2000); Matter o f Rizzo v. New York State Div. Of Hous. and Community Renews/, 6 N.Y.3d 104, 843 N.E.2d 739, 810 N.Y.S.2d 112 (2005). An agency is t o be accorded wide deference in the interpretation of its regulations and governing statutory law, however, it cannot engraft requirements or assume powers not found in the enabling legislation. See Vink v. New York State Div. Of Hous. and Community Renewal, 285 A.D.2d 203, 729 N.Y.S.2d 697 (N.Y.A.D, l"Dept., 2001). The facts and record adduced before HPD at the time of the May 17, 2012 hearing that resulted in the Eviction Decision demonstrate that Petitioner had not complied with the requirements listed in the Amended Decision. The record shows that Petitioner had payed all arrears due as of October 2011. However, Petitioner failed to make payments for November and December of 201 1 or January of 2012. Petitioner did make a payment in February of 2012, but failed t o do so in March of 2012. The record adduced demonstrated that Petitioner had not complied with the Amended Decision's requirement that she "[make] all monthly maintenance [* 5] payments when due." Therefore, HPD had a rational basis for vacating the stay of execution of the Certificate of Eviction that had been granted in the Amended Decision. Petitioner's statements regarding the basis for this Article 78 proceeding focus on the timing of the requirements imposed by the Amended Decision. The Amended Decision states that the requirements "apply and [are] fully enforceable when [Petitioner] returns t o her original [Alpartment." Petitioner states that she returned t o her original Apartment on January 17, 2012. This means that when Petitioner returned t o her original Apartment, the payments for November and December of 201 1 would have been past due. According t o the language of the Amended Decision, Petitioner would be required t o pay these arrears within fifteen days of her return t o the Apartment. Whether the payment for January 2012 would be a monthly maintenance payment due immediately or in arrears and due within fifteen days is not clear, but also not determinative By the time Lindsay Park brought the second motion t o restore the administrative hearing before HPD on March 7, 2012, the fifteen day deadline t o make the arrears payment(s) for November and December of 2011 and January of 2012 had long passed. Therefore this Court is not persuaded by Petitioner's statements regarding the timing of Lindsay Park's motion t o restore the administrative hearing before HPD. Accordingly, it is ORDERED and ADJUDGED that the Petition is denied, the proceeding is dismissed, and the stay on the holdover proceeding against Petitioner previously granted by this Court is vacated. Dated: December 12, 201 2 ENTER: r MANUEL J. ~ E N D E Z J. S. C. Check one: X FINAL DISPOSITION Check if appropriate: 0 DO NOT POST NON-FINAL DISPOSITION REFERENCE

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