Matter of Day v New York City Hous. Auth.

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Matter of Day v New York City Hous. Auth. 2013 NY Slip Op 30054(U) January 11, 2013 Sup Ct, New York County Docket Number: 401002/12 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 INDEX NO. MOTION DATE MOTION SEQ. NO. The following papen, numbered 1 to Notice of MotionlOrder to Show Cause Answering Affidavits ,were read on this motion tolfor -Affidavits - Exhibits I Wd I W). - Exhibits INo(d* Replying Affldavlts Upon the foregoing papers, it is ordered that this r n ,J.S.C. HOM E T E 9 M. p-~.*?~-,~( ,- I I .................................................................. 2. CHECK AS APPROPRIATE: ........... ....,.MOTIONIS: $jupRq=J 1. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ ~~~~~ GRANTED 0SETTLE ORDER DO,NOT POST DENIED GRANTED IN PART SUBMIT ORDER 0FIDUCIARY APPOINTMENT - ....... -_ -. . UOTHER , .- REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK OF NEW YORK: PART 40 B COUNTY - - - - - - - - _ _ * - - - - - - - - -X - In the Matter of the Application of SHAWNTE DAY, Index No. 401002/12 Petitioner, For a Judgment Pursuant to Article 7 8 of the Civil Practice Law and Rules, -against- NEW YORK CITY HOUSING AUTHORITY, Respondent. - - * _ _ _ _ _ _ _ _ - - - _ - - - - - -X PETER H. MOULTON, J.S.C.: Petitioner, a single mother with three children, brings this Article 7 8 proceeding to vacate the decision of hearing officer Arlene Ambert ('Ambert" petitioner's January 4, failing to appear at her January 4, ) dated January 24 , 2012 a 2012 , which denied application to vakate her default in chronic rent delinquency hearing. In 2012 application, petitioner contends that she did not appear at the hearing on September 23, not receive notice of the hearing date. 2011 because she did ShG also acknowledges that her rent is not ' p to date" and as her defense, states that u she applied for a ' n shot deal." oe Backqround By affidavit sworn to on January 18, 2012,' respondent opposed petitioner's application to vacate her default. In opposition, respondent stated that "this is the Applicant's Znd default with [* 3] respect the t h i s proceeding , that petitioner failed to establish ; an excusable default since she failed to establish that she was not properly notified and that petitioner continues to be chronically late in the payment of rent and therefore has no meritorious defense. rent . . She presently owes $3,726 in outstanding . for the months of June 2011 through January 2012. 1 Respondent criticizes petitioner s running up arrears and then applying for assistance [as] an acceptable way to pay her rent. In her January 2012 decision, Ambert fully adopts respondent s reasoning. Arnbert concludes that petitioner failed to establish an excusable default in light of NYCHA s affidavit of mailing of the notice by both certified and regular mail. All rent due in the amended Specification of Charges (from July 1, 2010 to June 2011) Nevertheless, she meritorious defense was found paid that prior petitioner in light of to Ambert s failed to decision. present a the Tenant s egregious rent payment history and lack of a viable plan to become current with the rent and remain current with future payments. Discussion NYCHA s good cause requirement is similar to the excusable default requirement f o r vacating a judicial proceeding under CPLR Although outside of the scope of review, those arrears were subsequently paid. However, as of July 2012, petitioner was a few months behind in rent. 2 [* 4] § 5015 and requires the party to demonstrate both an excusable default and a meritorious ( s e e Matter defense of Daniels v Popolizio, 171 aD2d 596 [lst Dept 19911; s e e a l s o G o r e v N e w York City Hous. A u t h . , officer's AD2d 541 300 decision, regarding The hearing [2d Dept 2 0 0 2 3 ) . whether the tenant established excusable default and a meritorious defense, must be upheld unless it is irrational or arbitrary and capricious (Matter of D a n i e l s , 171 ADZd 596, s u p r a ) . The court is constrained to deny the petition, although the result is unduly harsh. Ambert's improperly focused on petitioner's failure to pay rent for a period of time subsequent to that specified in the amended Specification of Charges ( s e e Matter of B u t l e r [petitioner was officer in a v Christian, deprived chronic of rent due 88 AD2d process delinquency 952 [2d Dept 19821) because the hearing hearing reached his determination based on tenant's failure to pay rent outside of the period that was specified in the charges]) . As to that period, petitioner had previously alleged a meritorious defense.2 However, default, Ambert's because decision petitioner did not not to reopen establish petitioner's an excusable ' n moving to vacate her prior default, hAiich was granted, I petitioner cited a loss of employment. Accordingly, for the period specified in the amended Specification of Charges, petitioner alleged a meritorious defense. 3 [* 5] default, is not arbitrary and capricious. NYCHA submitted evidence that a notice was mailed by both certified and regular mail one month prior to the hearing. capricious for the hearing It is not arbitrary and officer to reject petitioner's statement that she did not receive either form'of mailing, absent any explanakion as to how that could be the case. Although this court may have reached a different conclusion, it is not arbitrary and capricious for Ambert petitioner ignored the notice to - have implicitly concluded that - with harsh cohsequences. Accordingly, it is ADJUDGED that the petition is denied and the proceeding is dismissed. T h i s Constitutes the Decision and' Judgment'of the Court. Dated: January 11, 2013 ENTER : / - 4 - ' J.S.C.

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