Opinion
4011XX/10.
Decided October 1, 2010.
Petitioner pro se: A.R.
Counsel for NYCHA: Andrew M. Lupin, Esq.
Counsel for APS: Pamela M. Perel, Esq.
The pro se application by A.R., brother of B.R., for an order pursuant to C.P.L.R. Article 78, reversing respondent's determination to terminate B.R.'s tenancy, dated January 6, 2010, is denied. The cross-motion by respondent Adult Protective Services (APS) for an order dismissing the Article 78 proceeding pursuant to C.P.L.R. § 3211(a)(3) and (7) on the ground that petitioner lacks legal capacity to commence this Article 78 proceeding on behalf of his brother, on the ground that petitioner seeks improper mandamus relief which results in petitioner's failure to state a cause of action and on the ground that petitioner's claims are not ripe for judicial review is granted and the petition is dismissed.
A.R. submits the instant application on behalf of his brother and "next friend" of, B.R., the tenant of record at 30XX W. 29th Street, Apartment XX, Brooklyn, New York 11224. Movant asserts that respondent New York City Housing Authority (NYCHA) failed to consider the fact that B.R. is mentally ill when it decided to evict him from his apartment. Movant contends that there should be an effort made by APS to take whatever actions are necessary to interview B.R., conduct a heavy duty cleaning of the premises whether or not B.R. cooperates. In addition, movant asks that APS be ordered to arrange for the cleaning while B.R. is hospitalized and to coordinate with mental health professionals to develop a plan of long-term treatment and support. A.R. claims that the cluttered condition in his brother's apartment should have been more adequately addressed with "effective communication and follow-up between NYCHA and APS." (Affidavit, para. 3). He asserts that APS' efforts to intervene were mediocre and the court-appointed guardian ad litem is the one that has been making attempts to arrange a heavy duty cleaning of the apartment.
A.R. avers that he has pleaded with NYCHA to take B.R.'s mental illness into account. He contends that APS should make more diligent attempts to interview and evaluate his brother and get him the psychological help he needs, including hospitalization and an Article 81 guardianship, if necessary. APS has attempted to interview him by knocking loudly on his door but has ignored A.R.'s claims that his brother never answers the door because he is a paranoid schizophrenic and believes that people are out to harm him. A.R. asserts that his brother will de-compensate if he is evicted from his apartment and would end up in a shelter or institutionalized. He requests that NYCHA's "cold-hearted" decision be reversed and that APS be forced to arrange for a heavy duty cleaning and do more to impose the support and assistance B.R. needs.
NYCHA submits a verified answer and memorandum of law opposing the application by petitioner. NYCHA cites to the Federal Regulations which include the provisions that tenants must abide by such rules as keeping a dwelling unit in a clean safe condition and acting in a manner that will not disturb other residents' peaceful enjoyment of their accommodations. In accordance with state and federally mandated powers, NYCHA is permitted to take administrative action to terminate the tenancies of tenants who breach the rules and regulations. NYCHA contends that its termination procedures comply with due process requirements. A tenant is given opportunities to discuss the problem with management. If the problem persists or if management believes that termination of tenancy is appropriate, then the matter is referred to housing management for a preparation of charges. The tenant is notified in writing of the charges and the date for the hearing. At the hearing, an impartial hearing officer hears from witnesses and receives oral and written evidence. The hearing officer then prepares a written decision that is subject to review and approval by the Housing Authority's Board.
For tenants who may be mentally incompetent, the tenant is referred for a mental incompetence evaluation by NYCHA's Social Service Department. Social Services then determines whether the tenant understands the nature of the proceedings and can adequately assert his rights and interest in the tenancy or requires a guardian ad litem to assist him.
In the case at bar, the tenancy termination proceedings against B.R. began in 2006 after he failed to submit an affidavit of income. He was sent letters in May and June of 2006 asking him to meet with the housing manager about the affidavit of income but he failed to appear. Moreover, in 2006 and 2007, he failed to grant access to his apartment for an inspection or allow NYCHA to install a carbon monoxide detector. NYCHA contends that it gave B.R. several opportunities to discuss his breaches of rules and regulations with management but he did not avail himself of those opportunities. A copy of each of the letters sent to B.R. is annexed to NYCHA's answer as Exhibit D.
NYCHA notified B.R. on September 14, 2006 of the charges against his tenancy which included: non-desirability for creating a health and safety danger; failing to keep his apartment in a clean, safe and sanitary condition; stockpiling flammable items in his apartment; allowing persistent insect infestation; non-verifiable income; breach of rules and regulations for failing to dispose of his garbage, failing to comply with NYCHA's rules and regulations concerning the use and care of his apartment, failing to submit annual review papers and failing to sign a new lease.
In addition, prior to the hearing, NYCHA made a referral to Social Services to request a mental competence evaluation of B.R. . Since he was not responsive to the outreach efforts of Social Services, they could not conduct a mental status evaluation to determine if he was competent. Nevertheless, the evaluator that was assigned found that B.R. is mentally impaired, as per information from management as well as his hoarding. Moreover, he had a long psychiatric history dating back to 1979. Social Services then recommended that a guardian ad litem be appointed for him. Mark Fertig was appointed to serve as his guardian ad litem.
Ultimately, a hearing was held and the guardian ad litem appeared but B.R. did not appear. Jacques Friedman, B.R.'s representative payee of his monthly income, and A.R. appeared at the hearing. The guardian ad litem stated that he, along with APS, had been trying to effectuate a heavy duty cleaning of B.R.'s apartment but he refused to cooperate with them. In addition, Housing Assistant, Bob Agbai, testified at the hearing that he visited the apartment the day before the hearing with the representative payee and he saw that the apartment was filled with piles of garbage which he estimated to be five feet high. The apartment smelled "like a garbage dump" and there were piles of trash which included used news reports and hundreds of cans. The hearing officer adjourned the hearing to see if the apartment could be cleaned and to give APS an opportunity to gain access to the apartment.
On the adjourned date of the hearing, B.R. failed to appear once again and his guardian ad litem reported that APS obtained an order to gain access to the subject apartment and attempted twice with a psychiatrist and the police to find B.R. . However, APS was unable to locate B.R. and an evaluation of him and a heavy duty cleaning of the apartment could not be performed. The hearing was adjourned again and B.R. did not appear. His guardian ad litem informed the hearing officer that B.R. did not want to cooperate with him or anyone else. He hired someone to assist the representative payee in cleaning the apartment and when they attempted to perform the cleaning, B.R. became very irritated and stated that he would sue the representative payee and the other "gentleman" because they threw out things that were valuable without his permission. He further threatened to sue the representative payee for $50,000 if he continued to clean the apartment.
The hearing was ultimately concluded and the hearing officer found that the charges referring to B.R.'s lack of cleanliness and stockpiling of flammable items were sustained and that they show that B.R. is a hazard to the community. The remainder of the charges were dismissed for insufficient evidence. On January 6, 2010, the Housing Authority's Board adopted the hearing officer's decision.
NYCHA argues that the petition should be dismissed on several grounds. First, NYCHA contends that A.R. lacks standing to pursue the instant claims on behalf of his brother B.R. NYCHA asserts that C.P.L.R. Article 78 does not permit a person to bring a proceeding in the absence of the primary party or to seek review of another person's claim without authorization. Second, NYCHA contends that this court may not permit A.R. to engage in the unauthorized practice of law as it is well settled that a person who is not licensed to practice law may not appear pro se in court on behalf of a litigant. Since A.R. is a pro se litigant who has not alleged or shown that he is B.R.'s authorized representative, he lacks standing to commence this Article 78 proceeding.
NYCHA also argues that termination of B.R.'s tenancy is rational and is supported by substantial evidence. Thus, where there is a rational basis to support the findings and conclusions of the administrative agency, a court may not substitute its judgment for that of the agency. NYCHA asserts that the argument by A.R. that NYCHA failed to take B.R.'s mental illness into account is without merit because his mental illness does not justify jeopardizing the health and safety of his neighbors or impeding NYCHA's ability to comply with its obligations under federal and state law to provide safe and sanitary housing. NYCHA asserts that it complied with procedures for assessing B.R.'s mental competence. His guardian ad litem hired an individual to assist the representative payee to clean the apartment but B.R. threatened to sue them. Thus, B.R. has demonstrated that he is unwilling to allow anyone to clean his apartment, he is unwilling to cooperate with APS and unwilling or unable to maintain the conditions of his apartment even after it is cleaned.
Finally, NYCHA argues that termination of B.R.'s tenancy is an appropriate sanction and is not shocking to one's sense of fairness. Moreover, the court has no discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed by NYCHA. B.R. has refused assistance to help him with cleaning his apartment. Courts have upheld the Housing Authority's decision to terminate the tenancy of a tenant who failed to keep his apartment clean. Accordingly, the instant petition should be dismissed.
Respondent APS cross-moves to dismiss the petition of A.R. pursuant to C.P.L.R. § 3211(a)(3) and (7) on the ground that movant lacks legal capacity to commence the Article 78 proceeding on behalf of his brother, on the ground that petitioner seeks improper mandamus relief which results in his failure to state a cause of action and on the ground that petitioner's claims are not ripe for judicial review.
APS contends that it is mandated to provide services to those individuals who, due to mental or physical impairments, are unable to or cannot provide for their basic needs or protect themselves from abuse, neglect or exploitation. APS conducts an investigation and determines an individual's eligibility for services. Individuals are free to accept or reject the services of APS. An applicant or recipient of benefits and/or services is entitled to appeal determinations made by the local service district by requesting a fair hearing through the New York State Office of Temporary and Disability Assistance. After a hearing and a final decision, the individual is served with a copy of the written decision. The individual may then seek judicial review of the administrative hearing decision in the State Supreme Court.
APS contends that it made several attempts to assist B.R. and conduct a heavy duty cleaning. B.R. was not at home either time they went there.
APS contends that petitioner lacks standing to commence this proceeding on behalf of his brother because a person who is not adversely affected or aggrieved by the agency's actions cannot commence an Article 78 proceeding. In order to determine whether there is standing to sue, petitioner must show that his or her personal or property rights will be directly and specifically affected. Petitioner must show an injury in fact by the administrative action or determination that is the subject of the proceeding.
Next, APS argues that petitioner herein seeks improper mandamus relief and, therefore, fails to state a cause of action for which relief can be granted. Petitioner seeks to have this court find that APS failed to perform a duty enjoined upon it by law. Specifically he wants APS to conduct a heavy duty cleaning with or without B.R.'s consent, to place him in a mental health facility to enable such heavy duty cleaning and to commence an Article 81 proceeding. However, relief in the nature of mandamus can only be sought for those agency actions that are solely ministerial in nature. The court cannot compel an agency to perform those actions that are discretionary in nature. APS points out that if an individual is accepted by APS for services, it is within its discretion to determine which services are required and how the plan will be implemented.
APS further contends that petitioner fails to state a cause of action in that he fails to provide any specific facts or occurrences to show that it violated any law or regulation enjoined upon it. Moreover, petitioner failed to provide APS with any notice of the transactions or occurrences he intends to prove and fails to plead why he is allegedly entitled to the relief he requests.
Finally, APS asserts that no final agency determination has been made by it and, therefore, petitioner's claim is not ripe for this court's review and should be dismissed. Since an individual cannot seek relief under Article 78 to challenge a determination that is not final, then the instant proceeding should be dismissed. APS contends that it continues to keep B.R.'s case active and still intends to assess his eligibility once APS is able to locate him. Therefore, the instant proceeding should be dismissed.
Petitioner submits papers in opposition to APS' motion to dismiss and in reply to NYCHA's answer. A.R. seeks this court's "mercy and indulgence" since he is not a trained attorney and B.R. has no none else to speak on his behalf. Movant contends that while there is ample evidence of rules violations on B.R.'s part, NYCHA should not be permitted to evict him because he is mentally ill and particularly when APS has failed to properly perform its legal ministerial duties. Petitioner further claims that the multiple breaches of NYCHA's rules and regulations by B.R. were never malicious or violent in nature but can be attributed to B.R.'s mental illness.
With respect to APS, petitioner argues that attempts to gain access to B.R.'s apartment were "blundered ones" because APS disregarded his advice as to when B.R. would and would not be home. Moreover, NYCHA personnel alerted B.R. of APS' visits by talking loudly on walkie talkies outside his apartment, thereby giving B.R. sufficient time to leave the apartment. Petitioner then responds to each point raised by NYCHA and APS and insists that there should have been a more coordinated effort between NYCHA and APS to assure that outreach was performed. He finally contends that the eviction of an "untreated mentally ill individual who has been failed by the system" is shocking to the conscience and is arbitrary and capricious and should be reversed.
The application by petitioner is denied and the cross-motion by APS is granted. Both NYCHA and APS correctly contend that petitioner herein has no standing to commence the instant Article 78 proceeding. Petitioner claims that he attempted to obtain legal assistance from various legal agencies to no avail and he is adversely affected by NYCHA's actions because he has spent a great deal of hours at a personal loss to him in time, energy and lost wages, assisting his brother. However, in order to commence an Article 78 proceeding, the individual must have standing.
In, In the Matter of Sun-Brite Car Wash Inc., v. Board of Zoning of the Town of North Hempstead, et. al. , 69 NY2d 406 (1987), the Court of Appeals held that, "Aggrievement warranting judicial review requires a threshold showing that a person has been adversely affected by the activities of defendants (or respondents), or — put another way — that it has sustained special damage, different in kind and degree from the community generally . . ." Id . at 413. Therefore, even though A.R. may have expended personal time and money assisting his brother, that is insufficient to show that he has been adversely affected by the actions of NYCHA and APS. Petitioner has not demonstrated that he is the legal representative of his brother. Therefore, respondents are correct that A.R. has no standing to sue and the instant proceeding is dismissed.
In addition, even though petitioner asserts that APS should be ordered by this court to assist B.R., APS is correct that it cannot be compelled by this court to perform actions that are discretionary in nature. Therefore, this court cannot order APS to perform a heavy duty cleaning of B.R.'s apartment and perform other services which petitioner requests. See , Klostermann v. Cuomo , 61 NY2d 525 (1984).
Moreover, NYCHA has shown that its determination of termination of B.R.'s tenancy is supported by substantial evidence. NYCHA submitted proof of the hazardous and unsanitary conditions in B.R.'s apartment. There was also proof that an attempt was made to clean B.R.'s apartment but he was opposed to same and threatened to sue his representative payee and those who were cleaning his apartment. It is evident that B.R. was unwilling to cooperate with any efforts to perform a heavy duty cleaning of his apartment.
In Matter of Edwin A. Pell v. Board of Education of Union Free School District , 34 NY2d 222 , the Court of Appeals reiterated, "It is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion [citations omitted].'" Thus, this court's role is limited to the determination of whether or not there was a rational basis for the final determination made by NYCHA. This court cannot, ". . . substitute its own judgment for that of the agency. Even though the court might have decided differently were it in the agency's position, the court may not upset the agency's determination in the absence of a finding, not supported by this record, that the determination had no rational basis [citations omitted]." See , Matter of Mid-State Management Corp. v. New York City Conciliation and Appeals Board , 112 AD2d 72 (1st Dept. 1985); Matter of Sullivan County Harness Racing Assoc., Inc. v. Robert A. Glasser , 30 NY2d 269 (1972).
Petitioner asserts that because his brother suffers from a mental illness, it would be shocking to the conscience if his brother were evicted. However, courts have found that even though it would be a hardship if an individual's tenancy is terminated, a court has no discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed. Wooten v. Finkle , 285 AD2d 407 (1st Dept. 2001). In Satterwhite v. Hernandez , 16 AD3d 131 (1st Dept. 2005), the court ruled that even though termination of tenancy would be a hardship to the petitioner and her two minor children, ". . . we do not find that the penalty of termination shocks the conscience . . ." (citations omitted). Id. ; see also , Featherstone v. Franco , 95 NY2d 550 (2000).
Finally, in Canales v. Fernandez , 13 AD3d 263 (1st Dept. 2004), the court held that, "Although the evidence indicates that petitioner's son does have a handicap' as defined under the Fair Housing Amendments Act of 1988 . . . such status does not require the Housing Authority to provide him with residential accommodation where it would jeopardize the health, safety or property of others . . ." Id. Therefore, even though B.R. suffers from a mental illness, NYCHA is not required to keep him in public housing where the hazardous, cluttered and unsanitary condition of his apartment poses a threat to the health, safety and welfare of the other tenants in the building.
This court further notes that respondent APS has asserted that the case involving B.R. remains active and it will continue to reach out to B.R. in order to provide him with services.
Accordingly, it is hereby,
ADJUDGED, that the petition is denied and the proceeding is dismissed, without costs and disbursements to the respondents New York City Housing Authority and APS.