Matter of Bryan v New York City Dept. of Hous. Preserv. Dev.
Annotate this CaseDecided on October 5, 2013
Supreme Court, New York County
In the Matter of the Application of Darrell Bryan, Petitioner,
against
New York City Department of Housing Preservation Development, Respondent.
400427/13
Darrell Bryan,
Petitioner, Pro Se
Aviva Y. Horowitz, Esq. and
David G. Rossi, Law Student Fellow
On behalf of
New York City Law Department
General Counsel to Respondent,
New York City Housing Authority
100 Church Street
New York, NY 10007
Manuel J. Mendez, J.
Upon a reading of the foregoing cited papers, it is ordered that this Article 78 Petition is granted, the decision to terminate Petitioner's HPD section 8 rental subsidy is annulled. Petitioner's section 8 rental subsidy is reinstated retroactively to the date of termination and this matter is remanded to the administrative agency for an informal hearing.
Petitioner - a paraplegic whose sole source of income is Social Security Disability benefits- relies on Respondent's Section 8 housing assistance to pay his rent at 3333 Broadway Apt. B2A New York, NY (Riverside Park Towers), where he resides with his son. In 2012 an HPD investigation into petitioner's assets revealed that he [*2]owned property in Miami Florida and had misrepresented his income in his recertification Affidavits.
On May 31, 2012 HPD terminated his Section 8 subsidy for failure to disclose household income, more specifically the Florida property. Petitioner timely requested and was granted an informal hearing, which was held on June 7, 2012 before hearing officer David Fults. Hearing Officer Fults found HPD's decision to terminate Petitioner's Section 8 subsidy to be correct, but found that mitigating factors made the penalty of termination disproportionate and too harsh for the violation. He noted - and this court was able to observe at argument of this motion - "[Petitioner] is severely disabled and confined to a wheelchair."
Hearing Officer Fults stated in his decision that "[Petitioner] testified that he is a paraplegic with several and continuing health problems. That he is required to wear a surgical mask due to severe respiratory problems. The records further evidences [his ] medical difficulties in so much that it shows he has been in and out of the hospital as a result of complications from his disability. The household's only source of income is [his ] Social Security Disability Insurance Payments. As a result, review of the record indicates that termination of Mr. Bryan's Section 8 subsidy would mostly likely cause displacement of Mr. Bryan and his son and would likely result in homelessness, and due to his disabilities [he] would face a significant hardship in finding and obtaining safe, affordable, and accessible housing."
Hearing Officer Fults found that "while Misrepresentation of household assets and income is a permissible basis of termination it remains an extremely serious offense....However, given the severity of Mr. Bryan's disabilities and the near certainty of his homelessness, if the subsidy were terminated, and the hardship this would cause given Mr. Bryan's pre-existing conditions, termination is not reasonable at this time....HPD is advised to allow the [Petitioner] to recertify so he can fully report all household information including, but not limited to, all household members, income and assets." Hearing Officer Fults then remanded the matter to HPD for further action [See Answer Exhibit N]
On September 7, and September 12, 2012 Respondent served petitioner with "Requests for Additional Information" regarding his assets.[see Answer Exhibit P]. On October 1, 2012 Respondent served on Petitioner a "Pre-termination notice of section 8 Non-compliance" for failing to provide the documents requested. [see Answer Exhibit Q]. Petitioner sent the information but not in the format requested by Respondent and notified them that the Florida property was in foreclosure, providing copies of the court papers [see Answer Exhibit R]. On November 30, 2012 Petitioner was served with notice that his Section 8 rent subsidy was being terminated for failing to provide the [*3]previously requested documents, giving him 21 days to request an informal hearing if he did not agree with the determination. [ See Answer Exhibit S]. Petitioner's request for an informal hearing was received by Respondent on December 28, 2012, seven days after the deadline to request a hearing had expired. Respondent denied the request for a hearing[ See Answer Exhibit T] and petitioner, Pro-se, now brings this Article 78 proceeding to contest that denial.
Respondent opposes the petition on the grounds that Petitioner has not exhausted his administrative remedies because he did not request an informal hearing until December 28, 2012 which is seven days after the time to request such hearing had expired.
An Administrative determination becomes final and binding initiating the period for seeking Article 78 review upon (1) completeness, i.e. finality of determination and (2) exhaustion of administrative remedies ( Walton v. New York State Dept. Of Correctional Services, 8 NY3d 186, 863 N.E.2d 1001, 831 N.Y.S.2d 749 [2007]). However, here Petitioner is not seeking review of the final determination, he is seeking review of his denial of an informal hearing following receipt of the notice of termination.
The notice of termination dated November 30, 2012 required Petitioner to request a hearing within 21 days from the date on the notice and is untimely by at most 7 days. However, Petitioner is a paraplegic and has been found to have several and continuing health problems requiring multiple hospitalizations ( at times requiring him to wear a surgical mask due to his severe respiratory problems) and appeared at oral argument in a wheel chair. When asked by the court why he submitted his request for an informal hearing late he answered that he had been in the hospital and this prevented him from filing a timely request.
A person with a mental or physical incapacity will be excused from filing a timely request for a hearing, within reason, if such failure to file a timely request was due to the persons mental or physical incapacity ( see Desani v. Commissioner of Labor, 78 AD3d 1403, 910 N.Y.S.2d 703 [3rd. Dept. 2010];Wright v. Commissioner of Labor, 71 AD3d 1324, 895 N.Y.S.2d 886 [3rd. Dept. 2010]; Baird v. Commissioner of Labor, 54 AD3d 466, 862 N.Y.S.2d 415 [3rd. Dept. 2008]). Petitioner's request for an informal hearing filed seven days late, is not unreasonable given his physical condition and the severity of his health problems.
An administrative decision will withstand judicial scrutiny if it is supported by substantial evidence, has a rational basis and is not arbitrary and capricious, (Matter of Pell v. Board of Education, 34 NY2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974]; Davis v. Hernandez, 13 AD3d 90, 786 N.Y.S.2d 444 [App. Div. 1st. [*4]2004]). Under the facts herein the determination to deny Petitioner a hearing is arbitrary, capricious and irrational, given Petitioner's physical condition and health problems.
Accordingly, it is ORDERED and ADJUDGED that the petition is granted, and it is further
ORDERED and ADJUDGED that the decision to terminate Petitioner's HPD Section 8 Rental Subsidy is Annulled, and it is further
ORDERED and ADJUDGED that petitioner's Section 8 rental subsidy is reinstated retroactively to November 30, 2012, the date of termination, and it is further
ORDERED and ADJUDGED that this matter is remanded to the administrative agency for an informal Hearing.
Dated:October 5, 2013Manuel J. Mendez, J.S.C.
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