2009 N.Y. Slip Op. 30347 (N.Y. Sup. Ct. 2009)

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In re Appl. of Minnis v. James W. Johnson Houses

Supreme Court of the State of New York, New York County

Feb 13, 2009

2009 N.Y. Slip Op. 30347 (N.Y. Sup. Ct. 2009)

Opinion

402414/08.

February 13, 2009.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] CAROL ROBINSON EDMEAD, J.S.C.Page 2

MEMORANDUM DECISION

Petitioner Jane S. Minnis ("petitioner") moves for an order and judgment pursuant to CPLR Article 78 reversing the determination of respondent New York City Housing Authority (the "Housing Authority" and/or "NYCHA"), dated July 2, 2008 (the "Determination").

Background

In June 1993, petitioner became the tenant of record for the apartment. Petitioner resided in the apartment with her daughter, Tiffany Minnis ("Tiffany"), and her son, Charles Minnis ("Charles").

Petitioner agreed that her tenancy could be terminated if she failed to abide by the lease provision that provides: "Tenant, any member of the household, a guest, or another person under the Tenant's control, shall not engage in (I) [a]ny criminal activity that threatens the health, safety, or right to peaceful enjoyment of the Development by other residents or by the Landlord's employees, or (ii) [a]ny violent or drug-related criminal activity on or off the Leased Premises or the Development."

On August 15, 2002, the police executed a search warrant in petitioner's apartment, and arrested Tiffany for possession of crack-cocaine and marijuana. On January 10, 2003, the Housing Authority preferred administrative termination-of-tenancy charges against petitioner for non-desirability and breach of rules and regulations based on this criminal misconduct. After petitioner defaulted at her hearing, the Housing Authority granted her application to open her default. Thereafter, instead of proceeding to a hearing, petitioner resolved these charges in a stipulation, dated September 25, 2003, agreeing to subject her tenancy to a five-year probationary period (hereinafter referred to as the "2003 Stipulation"). Petitioner signed her name on the 2003 Stipulation underneath the statement: "[t]his stipulation was read and explained to the tenant. The tenant acknowledges that she completely understands the terms of this stipulation and agrees to the terms set forth herein." On October 15, 2003, the Housing Authority Board approved the 2003 Stipulation. See Letters; Notice with Specification of Charges, dated January 10, 2003.

On October 21, 2007, Charles engaged in disorderly conduct when he yelled profanities. The police arrested Charles for disorderly conduct. Charles pleaded guilty to disorderly conduct, and the criminal court sentenced him to time served. . On March 27, 2008, the police again executed a search warrant in petitioner's apartment, and recovered 73 vials of crack-cocaine. Petitioner, Charles, Tiffany, petitioner's nieces, Bernadette Ramos ("Bernadette") and Sharon Flowers ("Sharon"), and petitioner's friend, Tenisha Russell ("Tenisha") were inside the apartment when the police executed the search warrant. The police arrested Charles, Tiffany, Bernadette, Sharon, and Tenisha for criminal possession of a controlled substance in the third degree (a class B felony) and criminal possession of a controlled substance in the fifth degree with intent to sell (a class D felony). Charles the Development."

Although not required to interview petitioner under Housing Authority procedure because petitioner's tenancy was already on probation, the development management met with petitioner to discuss this misconduct on April 1, 2008. Petitioner acknowledged that the police executed a search warrant at her apartment on March 27, 2008. The Manager advised petitioner she would forward her tenancy record to the Applications and Tenancy Administration Department for preparation of termination-of-tenancy charges. The Manager also requested that petitioner bring in a certificate of disposition for Charles and proof of address for Bernadette and Sharon. On April 9, 2008, petitioner did not bring in a certificate of disposition for Charles because his case was still pending. Petitioner provided management with Bernadette's and Sharon's driver's licenses showing that they did not reside at petitioner's apartment. The Manager explained again to petitioner that she was forwarding her tenancy record to the Applications and Tenancy Administration Department.

The Manager thereafter informed petitioner in writing that she was forwarding petitioner's tenancy record to the Applications and Tenancy Administration Department for review. The Manager also informed petitioner that she would have an opportunity for a hearing and that she was entitled to be represented by an attorney.

By notice and specification of charges, dated May 15, 2008, the Housing Authority charged petitioner with violation of probation as contained in the 2003 Stipulation. The Housing Authority charged petitioner with non-desirability based on the following: (1) on or about March 27, 2008, petitioner, alone or in concert with Charles, Tiffany, Sharon, and Bernadette, unlawfully possessed, sold, or attempted to sell crack-cocaine, a quantity of which was recovered during the execution of the search warrant; and (2) on or about October 21, 2007, Charles unlawfully engaged in disorderly conduct. The Housing Authority also charged petitioner with breach of rules and regulations based on her failure to refrain from or failure to cause the individuals on the premises with her consent to refrain from illegal activity or other activity referred to in her lease. The notice informed petitioner that the determination may result in her eviction and, if she desired to contest the charge, she could reply to the notice, appear at the hearing, and be represented by counsel.

On June 18, 2008, the hearing was commenced before Hearing Officer Arlene Ambert ("Hearing Officer"). See administrative hearing transcript (hereinafter referred to as "Tr. at "). At the outset of the hearing, the Hearing Officer inquired whether petitioner was representing herself and waiving her right to be represented by counsel, and petitioner responded "yes." See Tr. at 5-6. The Hearing Officer explained the hearing procedure to petitioner, including cross-examination, objecting to the introduction of evidence, and petitioner's right to present her defenses and make a statement. See Tr. at 9-14.

The Hearing Officer admitted into evidence: (1) petitioner's lease (see Tr. at 27; Exhibit A); (2) the first page of petitioner's most recent affidavit of income, dated October 3, 2007 (see Tr. at 27; Exhibit D); (3) the Determination of Status, dated October 15, 2003, the 2003 Stipulation, wherein petitioner agreed to subject her tenancy to five years probation, and the Notice with Specification of Charges, dated January 10, 2003 (see Tr. at 29; Exhibit E); and (4) the certified arrest report and certificate of disposition showing that Charles pleaded guilty to disorderly conduct stemming from his arrest for the same charge on October 21, 2007 (see Tr. at 34; arrest report and certificate of disposition, collectively annexed to NYCHA's Verified Answer as Exhibit L). Through Housing Authority Associate Investigator Angelo Morgante ("Morgante"), the Housing Authority authenticated: (1) the Office of Court Administration printout showing that Charles pleaded guilty to criminal possession of a controlled substance in the fourth degree, and the criminal court was scheduled to sentence him on July 9, 2008 (see. Tr. at 45-47; Exhibit G); (2) the search warrant (see Tr. at 49; search warrant, dated March 25, 2008, annexed to the Verified Answer as Exhibit M); (3) arrest reports showing that the police arrested Charles, Tiffany, Bernadette, Sharon, and Tenisha and charged them with criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fifth degree (see Tr. at 53-54; arrest reports, collectively annexed to the Verified Answer as Exhibit N); (4) property clerk's invoices showing that the police recovered 38 ziplock bags from a dresser door in one of the bedrooms, 73 vials containing crack-cocaine from a cabinet in the kitchen, and $134 from Charles (see Tr. at 58; property clerk's invoices, collectively annexed to this Verified Answer as Exhibit O); and (5) the field test report showing that the recovered contraband tested positive for cocaine (see Tr. at 60; field test, annexed to the Verified Answer as Exhibit P).

During Morgante's testimony, petitioner admitted that the police recovered the crack-cocaine, ziplock bags, and money from her apartment, but claimed she was unaware of their presence in her apartment because of her asthma. See Tr. at 56-57.

After the Housing Authority rested, petitioner testified she had been the Coordinator for the Board of Elections and introduced six letters attesting to her community activities and character. See Tr. at 75-84; letters, collectively annexed to this Verified Answer as Exhibit Q. Petitioner also testified she did not know that Charles would become involved in illegal drug activity when he moved back into her apartment three years ago and that he was scheduled to begin a drug treatment program on July 9, 2008. See Tr. at 82. Petitioner testified that she resides with Tiffany and Tiffany's four-month old son and that after her grandson was born she expected that the behavior of her household would improve. See Tr. at 83. Petitioner also testified she has no other place to live and she is in poor health. See Tr. at 83.

After petitioner rested, the Housing Authority's attorney stated, based on the fact that the police executed two search warrants in petitioner's apartment and petitioner violated her probation, it is clear that petitioner is either unable or unwilling to prevent drug activity in her apartment. See Tr. at 87,92.

By decision, dated June 19, 2008, the Hearing Officer recounted the testimony elicited from the witnesses and the documents admitted into evidence. The Hearing Officer then found the charges had been sustained by credible evidence, which warranted the termination of petitioner's tenancy. The Housing Authority subsequently adopted the Hearing Officer's decision to terminate petitioner's tenancy.

Petitioner's Contentions

Petitioner asserts that she did not know her son Charles had any drugs in her apartment. Petitioner takes a lot of medications for her back and hands, so she was unaware of what her son was doing or why the police were at her apartment. Petitioner admits that her son had drugs when the police came, and that her son threw the drugs in the cabinet. Petitioner was unaware that drugs were in her apartment.

Petitioner states that she and her grandchild have no where else to live, and that her son Charles in participating in drug rehabilitation. By the time Charles completes rehabilitation, he will have his G.E.D. and a job and a place of his own to live.

Petitioner also submitted letters from the Board of Elections and her neighbors in support of keeping her in her apartment.

Respondents' Contentions

The New York City Housing Authority terminated the tenancy of petitioner after petitioner violated the stipulation, wherein she agreed to subject her tenancy to five years probation to resolve prior charges, by continuing to engage in and failing to ensure her family members refrained from further criminal misconduct, including illegal drug activity. The police executed two search warrants at petitioner's apartment, discovering drugs and drug paraphernalia, and most recently, recovering 73 vials of crack-cocaine, 38 ziplock bags, and $134.

The Housing Authority afforded petitioner a due process hearing on charges of non-desirability and breach of rules and regulations. Petitioner admitted the police recovered the drugs in her apartment but claimed that they belonged to Charles and that she was unaware of illegal drug activity inside her apartment. The Hearing Officer rejected petitioner's claim as incredible, finding "[t]he illegal drugs were recovered from a common area of the apartment, the kitchen cabinet, where generally all members of the household would normally share access. Therefore, for the Tenant to insist that she was unaware of any illegal activity occurring inside the apartment lacks credibility." In rejecting petitioner's claim, the Hearing Officer also found "it defies reason for the Tenant to have not been more vigilant or aware of the activities occurring inside of her apartment, which could possibly jeopardize her tenancy, as she was already on probation due to the illegal drug activity associated with one (1) of her children." This Court should defer to the Hearing Officer's credibility assessments. In any event, the United States Supreme Court has sanctioned strict liability evictions in drug-related cases where, unlike here, the tenant has no knowledge of the illegal drug activity.

Petitioner suggests that this Court should vacate her termination because she was unaware of the illegal drug activity in her apartment due to her back and hand problems and her medication. This Court should reject petitioner's claim for several reasons. First, petitioner waived this claim because she did not testify about her back and hand problems or her medications at her hearing. Second, petitioner's claim is inconsistent with petitioner's testimony at the hearing that her lack of knowledge was due to her asthma. In addition, as discussed above, the Hearing Officer rejected petitioner's purported lack of knowledge as not credible, and this Court must defer to the Hearing officer's credibility determinations.

Second, petitioner suggests termination is unduly harsh based on the personal reference letters she submits attesting to her purportedly upstanding character. The letters do not support petitioner's claim because they do not indicate that petitioner's personal references were aware of petitioner's illegal activity — possessing and selling drugs and possessing drug paraphernalia. In addition, if petitioner's personal references were aware of petitioner's illegal activity, their opinions would be entirely unreasonable and, therefore, properly rejected by the Hearing Officer.

Third, petitioner suggests termination is unwarranted because Charles is currently in a residential drug treatment facility for 12 to 15 months and he will not return to the apartment upon his release. This Court should reject petitioner's claim for several reasons. First, although petitioner refers to a letter from the residential drug treatment center in the Petition, it is not attached to the Petition. In any event, the letter is outside the record because she did not introduce it at her hearing. In addition, Charles' alleged participation in a drug treatment program relates to changed circumstances after the Housing Authority rendered its determination and is, therefore, outside the record on Article 78 review. Although petitioner testified Charles was scheduled to enter a drug treatment program, he did not allegedly do so until after the hearing. Petitioner also has provided no evidence that Charles has firm plans of an alternative residence upon his release from the drug facility and, therefore, it is surely speculative he will not reside in petitioner's apartment.

Petitioner argues that termination is improper because she has no other place to live. This argument is also unavailing because petitioner's lack of alternative living arrangements does not justify reinstating her tenancy when she has endangered her neighbors by violating her probation and allowing illegal drug activity to continue to occur — possessing large quantities of drugs and drug paraphernalia in the apartment upon the execution of two search warrants. The Appellate Division, First Department, has held that prospective homelessness does not insulate a tenant from liability for her household's misconduct.

Analysis

CPLR 7803 states that the court review of a determination of an agency, such as NYCHA, consists of whether the determination 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 imposed. CPLR § 7803(3) ( see Windsor Place Corp. v New York State DHCR, 161 AD2D 279 [1^st Dept 1990]; Mazel v DHCR, 138 AD2D 600 [1^st Dept 1988]; Bambeck v DHCR, 129 AD2D 51 [1^st Dept 1987], lv. den. 70 NY2D 615 [1988]). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken "without sound basis in reason and . . . without regard to the facts." Matter of Pell v Board of Education, 34 NY2D 222, 231 [1974]. Rationality is the key in determining whether an action is arbitrary and capricious or an abuse of discretion. Matter of Pell v Board of Education, 34 NY2D at 231. The court's function is completed on finding that a rational basis supports the DHCR's determination ( see Howard v Wyman, 28 NY2D 434 [1971]). Where the agency's interpretation is founded on a rational basis, that interpretation should be affirmed even if the court might have come to a different conclusion ( see Mid-State Management Corp. v New York City Conciliation and Appeals Board, 112 AD2D 72 [1" Dept], aff'd 66 NY2D 1032 [1985]).

On judicial review of an agency action under CPLR Article 78, the courts must uphold the agency's exercise of discretion unless it has "no rational basis" or the action is "arbitrary and capricious." Pell v Board of Ed. Union Free School District, 34 NY2d 222, 230-31, 356 NYS2d 833, 839 (1974) "The arbitrary and capricious test chiefly 'relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.' Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." 34 NY2d at 231, 356 NYS2d at 839 See also Jackson v New York State Urban Dev Corp., 67 NY2d 400, 417, 503 NYS2d 298, 305 (1986) (on review of agency action under CPLR Article 78, the courts may not "second guess the agency's choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence").

Moreover, where, as here, NYCHA's determination involves factual evaluation within NYCHA's expertise and is amply supported by the record, the determination must be accorded great weight and judicial deference. See Flacke v Onondaga Landfill Systems, Inc., 69 NY2d 355, 363, 514 NYS2d 689, 693. Courts are required to "resolve [any] reasonable doubts in favor of the administrative findings and decisions" of the responsible agency. Town of Henrietta v Department of Envtl. Conservation, 76 AD2D 215, 224, 430 NYS2d 440, 448 [4^th Dept 1980]. See also Jackson, 67 NY2d at 417, 503 NYS2d at 305; City of Rome v Department of Health Dept., 65 AD2D 220, 225, 441 NYS2d 61, 64 [4^th Dept 1978], lv. to app. denied, 46 NY2d 713, 416 NYS2d 1027.

And, "[w]here evidence conflicts, issues of credibility are the province of an administrative hearing officer, since 'the decisions by an Administrative Hearing Officer to credit the testimony of a given witness is largely unreviewable by the courts.'" Wooten v Finkle, 285 AD2D 407, 408 [1^st Dept 2001] ( quoting Berenhaus v Ward, 70 NY2d 436, 443, and the courts may not weigh the evidence or reject the conclusion of the administrative agency where the evidence is conflicting and room for choice exists ( Berenhaus, 70 NY2D at 444, 522 NYS2D 478, 517 NE2D 193; Matter of Stork Rest. v Boland, 282 NY 256, 267, 26 NE2D 247 [1940]; Matter of Acosta v Wollett, 55 NY2D 761, 447 NYS2D 241, 431 NE2D 966 [1981]; Matter of Verdell v Lincoln Amsterdam House, Inc., 27 AD3D 388, 390, 813 NYS2D 68 [2006]).

Title 42 U.S.C. § 1437d(l)(6) provides that each "public housing agency shall utilize leases . . . provid[ing] that . . . any drug-related criminal activity on or off [federally assisted low-income housing] premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy." Section 1437d(l) (6)'s plain language unambiguously requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity.

Assume as true petitioner's argument that she had no knowledge of her son's activity. HUD v Rucker, 535 US 125 (2002) instructs that the result herein would not be different: "It is not 'absurd' that a local housing authority may sometimes evict a tenant who had no knowledge of the drug-related activity. Such 'no-fault' eviction is a common 'incident of tenant responsibility under normal landlord-tenant law and practice.'" 56 Fed.Reg. 51560, 51567 (1991). Strict liability maximizes deterrence and eases enforcement difficulties. See Pacific Mut. Life Ins. Co. v Haslip, 499 US 1, 14, 111 S Ct 1032, 113 L Ed 2d 1.

And, petitioner's argument that she would become homeless, is unavailing. The Appellate Division has held that prospective homelessness does not insulate a tenant from termination. Reducing the vibrant public housing community to what petitioner characterizes as housing of last resort is small comfort to the Housing Authority's law abiding residents who should not be sentenced to live alongside those who engage in illegal drug activity.

Conclusion

The court is sympathetic to petitioner's circumstances; however, that cannot change the outcome. Based on the foregoing, it is hereby

ORDERED and ADUDGED that the application of Petitioner Jane S. Minnis for an order and judgment pursuant to CPLR Article 78 reversing the determination of respondent New York City Housing Authority (the "Housing Authority" and/or "NYCHA"), dated July 2, 2008, is denied and the instant Petition is dismissed; and it is further

ORDERED that counsel for respondents shall serve a copy of this order with notice of entry within twenty days of entry on Petitioner.

In re Appl. of Minnis v. James W. Johnson Houses

Opinion

MEMORANDUM DECISION

In re Appl. of Minnis v. James W. Johnson Houses

In re Appl. of Minnis v. James W. Johnson Houses

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In re Appl. of Minnis v. James W. Johnson Houses

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In re Appl. of Minnis v. James W. Johnson Houses

In re Appl. of Minnis v. James W. Johnson Houses

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