Matter of Herman v NYC Dept. of Hous. Preserv. & Dev. (NYC HPD)
Annotate this CaseDecided on September 10, 2012
Supreme Court, Kings County
In the Matter of the Application of Joel Herman, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
against
NYC Department of Housing Preservation and Development (NYC HPD), Matthew Wambua, Commissioner of NYC Department of Housing Preservation and Development, Respondents.
25720/11
Petitioner represented by Damien E. Bernache, Esq. of Tenenbaum Berger & Shivers LLP.
Respondent represented by Yungbi A. Jung, Esq. of the Corporation Counsel for the City of New York.
Genine D. Edwards, J.
Petitioner brings this petition, inter alia, to reverse the decision of respondents NYC Department of Housing Preservation and Development and Matthew Wambua, Commissioner of NYC Department of Housing Preservation and Development ("HPD"), to terminate petitioner's Section 8 rental subsidy. Petitioner asserts that the determination is arbitrary and capricious and in violation of law. HPD submits a verified answer and a memorandum of law in opposition to the petition.
HPD has provided Section 8 subsidies to petitioner and his family since 2007. On March 16, 2011, a hearing was held to determine whether petitioner's Section 8 subsidy should be terminated due to allegations that petitioner was a domestic violence offender. The hearing officer found that the evidence submitted was insufficient to find that petitioner was a domestic [*2]violence offender. Thus, the decision to terminate petitioner's subsidy was reversed.
On June 3, 2011, petitioner received a notice that indicated his Section 8 subsidy would be terminated based upon "family breakup: minor children no longer residing in household." In accord with HPD's Administrative Plan "[t]he head, co-head or remaining family member of the household who has full legal custody of any minor children will retain the use of the tenant-based voucher." Petitioner requested a hearing. The hearing officer upheld HPD's decision, finding it reasonable because the minor children no longer resided with petitioner.
In the instant matter, petitioner first asserts that the doctrine of collateral estoppel applies because HPD knew from the first hearing that his children did not reside with him; second, petitioner asserts that he should be provided protections noted by HPD in its Violence Against Women Act; and lastly, petitioner asserts that neither he nor his estranged wife was awarded full legal custody as required by HPD's Administrative Plan.
It is well established law that judicial review of an agency's determination is limited to whether the determination was arbitrary and capricious or an abuse of discretion or made in violation of a lawful procedure or was affected by an error of law. See Clendon v. New York City Housing Authority, 33 AD3d 913, 823 N.Y.S.2d (2d Dept. 2006); Bradford v. New York City Housing Authority, 34 AD2d 463, 824 N.Y.S.2d 350 (2d Dept. 2006); Zeigler v. New York City Housing Authority, 35 AD3d 624, 824 N.Y.S.2d 737 (2d Dept. 2006); Brown v. New York City Housing Authority, 27 AD3d 733, 812 N.Y.S.2d 135 (2d Dept. 2006).
While the doctrine of collateral estoppel [FN1] is applicable to administrative agencies acting in a judicial capacity, such as HPD in this instant matter, case law establishes that two elements must first be met. First, the identical issue must have been previously decided; second, the parties should have had a full and fair opportunity to litigate the issue. See Vitello v. Amboy Bus Co., 83 AD3d 932, 921 N.Y.S.2d 159 (2d Dept. 2011); 9-10 Alden Place, LLC v. Chen, 279 AD2d 618, 719 N.Y.S.2d 697 (2d Dept. 2001).
The query of the custody of petitioner's children was not litigated during the first hearing about the termination of petitioner's subsidy. Indeed, the parties only mentioned that petitioner's estranged wife was given temporary physical custody of the children. The issue that was litigated previously was whether the petitioner was a domestic violence offender. Hence, the doctrine of collateral estoppel does not apply in this matter.
The Violence Against Women Act (VAWA) provides protections for tenants who are victims of domestic violence. Petitioner claims that he is such a victim and that his estranged wife's acts of domestic violence caused the family break-up. Petitioner's estranged wife makes the same claim against petitioner. When members of a household each claim victim status, federal regulations require HPD to determine the true victim from third-party documentation or court orders. See 24 CFR 5.2007(e). Considering the federal regulations as well as the conflicting claims, HPD appropriately decided to withhold its determination regarding petitioner's VAWA status.[FN2]With respect to petitioner's last argument, this Court finds HPD's determination to be arbitrary and capricious because there is no court order rendering "full legal custody" to petitioner's estranged wife. HPD's Administrative Plan requires "[t]he head, co-head or remaining family member of the household who has full legal custody of any minor children [*3]will retain the use of the tenant-based voucher." Indeed, the determining factor as to whether petitioner remains eligible for his Section 8 subsidy is the question of "full legal custody" in accord with HPD's Administrative Plan, and not simply temporary physical custody as stipulated to by petitioner and his wife before J.H.O. Betty E. Staton on October 14, 2010. It should be noted that physical custody involves the daily residence of the children, while legal custody involves decision-making regarding the children's health care, education, religious upbringing and discipline. See Odette R. v. Douglas R., 91 Misc 2d 792, 399 N.Y.S.2d 93 (Fam. Ct., New York County 1977). At best, HPD should have held its decision in abeyance pending the resolution of the family court matter and/or a court order rendering legal custody of petitioner's children.
Accordingly it is,
ADJUDGED that the New York City Department of Housing Preservation and Development's decision to terminate petitioner's Section 8 rental subsidy is reversed; and it is
ORDERED that the New York City Department of Housing Preservation and Development reinstate petitioner's subsidy retroactive to the effective date of the termination of the subsidy; and it is further
ORDERED that the New York City Department of Housing Preservation and Development pay any rent subsidy amount that was not issued because of the unlawful termination.
This constitutes the decision, order and judgment of this CourtENTER,
_______________________
Genine D. Edwards
A.J.S.C.
Footnotes
Footnote 1: A party is precluded from litigating in a subsequent proceeding an issue that was raised and decided in a prior proceeding.
Footnote 2: In this case, the family court matter has not been fully adjudicated.
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