In the Matter of Jacqueline Perez, Respondent,v.John B. Rhea,, Appellant.

Brief

N.Y.January 10, 2013

New York County Supreme Court Index No. 110920/09 Court of Appeals of the State of New York   In the Matter of the Application of JACQUELINE PEREZ, Petitioner-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, - against - JOHN B. RHEA, as Chairman of the New York City Housing Authority, Respondent-Appellant. BRIEF OF AMICUS CURIAE HOUSING COURT ANSWERS, INC. IN SUPPORT OF PETITIONER-RESPONDENT RONIT J. BERKOVICH DAVID J. SCHWARTZ WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone: (212) 310-8534 Facsimile: (212) 310-8007 On behalf of Amicus Curiae Completion Date: July 17, 2012 CORPORATE DISCLOSURE STATEMENT In compliance with Rule 500.1(f) of the Rules of Practice for the Court of Appeals of the State of New York, amicus curiae, Housing Court Answers, Inc. certifies that it has no parents, subsidiaries, or affiliates. TABLE OF CONTENTS PAGE(S) ii PRELIMINARY STATEMENT ............................................................................ 1 INTEREST OF THE AMICUS CURIAE .............................................................. 5 ARGUMENT ............................................................................................................ 8 A. The Court Of Appeals Must Preserve The Pell Standard And Appellate Courts’ Consistent Interpretation ......................................... 8 B. New York Appellate Courts Applying The Pell Standard Have Consistently Held That Administrative Penalties Affecting Tenancy Were Disproportionate To The Offense In Cases With Graver Offenses And Weaker Mitigation Evidence Than That Which Was Demonstrated By Ms. Perez ............................................. 13 C. Every Case NYCHA Cites To Support Its Proposition That The Penalty Imposed On Ms. Perez Was Proportionate To Her Circumstances Is Highly Distinguishable From The Case At Bar ............................................................................................................ 18 TABLE OF AUTHORITIES CASES PAGE(S) iii Bellamy v. Hernandez, 72 A.D.3d 814, 898 N.Y.S.2d 469 (2d Dep’t 2010) ........................................... 14 Bland v. N.Y.C. Hous. Auth., 72 A.D.3d 528, 901 N.Y.S.2d 158 (1st Dep’t 2010) .............................. 18, 20, 21 Cuevas v. Beacon Hous. Auth., 220 A.D.2d 179, 644 N.Y.S.2d 108 (3d Dep’t 1996) ............................. 18, 23, 24 Davis v. N.Y.C. Dep’t of Hous. Pres. & Dev., 58 A.D.3d 418, 871 N.Y.S.2d 86 (1st Dep’t 2009) ............................................ 13 Featherstone v. Franco, 95 N.Y.2d 550, 720 N.Y.S.2d 93 (2000) ............................................................ 10 Gray v. Donovan, 58 A.D.3d 488, 870 N.Y.S.2d 347 (1st Dep’t 2009) .......................................... 13 Holiday v. Franco, 268 A.D.2d 138, 709 N.Y.S.2d 523 (1st Dep’t 2000) ........................................ 14 Newton v. Mun. Hous. Auth., 38 N.Y.2d 220, 379 N.Y.S.2d 688 (1976) .............................................. 18, 19, 20 Parker v. N.Y.C. Hous. Auth., 73 A.D.3d 632, 905 N.Y.S.2d 139 (1st Dep’t 2010) .................................... 18, 20 Paul v. N.Y.C. Hous. Auth., 89 A.D.3d 520, 932 N.Y.S.2d (1st Dep’t 2011) ................................................. 13 Pell v. Bd. of Educ., 34 N.Y.2d 222, 356 N.Y.S.2d 833 (1974) ...................................................passim Perez v. Rhea, 2010 WL 1458995 (Sup. Ct. N.Y. Cnty. Mar. 31, 2010) ..................................... 3 Perez v. Rhea, 87 A.D.3d 476, 928 N.Y.S.2d 688 (1st Dep’t 2011) .......................... 3, 11, 18, 24 TABLE OF AUTHORITIES (CON’T.) CASES PAGE(S) iv Rodriguez v. N.Y.C. Hous. Auth., 84 A.D.3d 630, 923 N.Y.S.2d 502 (1st Dep’t 2011) .......................................... 14 Smith v. N.Y.C. Hous. Auth., 40 A.D.3d 235, 835 N.Y.S.2d 131 (1st Dep’t 2007) .............................. 18, 21, 22 Spand v. Franco, 242 A.D.2d 210, 663 N.Y.S.2d 813 (1st Dep’t 1997) ............................ 15, 16, 17 Spencer v. N.Y.C. Hous. Auth., 81 A.D.3d 537, 917 N.Y.S.2d 176 (1st Dep’t 2011) .......................................... 14 Stolz v. Bd. of Regents, 4 A.D.2d 361, 165 N.Y.S.2d 179 (3d Dep’t 1957) ............................................. 10 Vazquez v. N.Y.C. Hous. Auth. (Robert Fulton Houses), 57 A.D.3d 360, 871 N.Y.S.2d 10 (1st Dep’t 2008) ................................ 15, 16, 17 Waterside Redevelopment Co. v. Dep’t of Hous. Pres. & Dev., 270 A.D.2d 87, 704 N.Y.S.2d 63 (1st Dep't 2000) ................................. 18, 22, 23 Wise v. Morales, 85 A.D.3d 571, 925 N.Y.S.2d 479 (1st Dep’t 2011) .......................................... 13 STATUTES N.Y. C.P.L.R. § 7801 ................................................................................. 4, 9, 24, 25 N.Y. C.P.L.R. § 7803 ....................................................................................... 8, 9, 10 OTHER AUTHORITIES Harvey Gee, From Hallway Corridor to Homelessness: Tenants Lack Right to Counsel in New York Housing Court, 17 Geo. J. on Poverty L. & Pol’y 87 (2010) ......................................................... 7 About NYCHA - Message from the Chairman, http://www.nyc.gov/html/nycha/html/about/message_from_chairman.sht ml (last visited on July 17, 2012) .......................................................................... 1 PRELIMINARY STATEMENT The outcome of this case does not affect only Jacqueline Perez (the “Petitioner” or “Ms. Perez”), or her three children - Tina, Brandon, and Jacob. The outcome of this case will affect thousands of families who rely (now or in the future) upon the New York City Housing Authority (the “Respondent” or “NYCHA”) for shelter and survival. NYCHA’s Chairman, John B. Rhea, states on his organization’s website that “NYCHA is proud to be a place where families can grow, thrive and build a life around the assurance of an affordable home through both good and bad times.”1 In this case, however, NYCHA has acted contrary to that mission and is instead fighting for the ability to uproot an entire family, disturb the nucleus of relationships the family members have created, and send them into certain homelessness, as punishment for one single mother’s mistake as she faces bad times. If NYCHA is successful in its battle against Ms. Perez, a precedent will be established that will put numerous other New York City residents at risk for losing their homes based upon NYCHA’s harsh sense of justice. Ms. Perez has lived for her entire life (nearly 39 years) in NYCHA’s public housing. See Record on Appeal (“R”) 288. For the majority of those years, she 1 About NYCHA - Message from the Chairman, http://www.nyc.gov/html/nycha/html/about/message_from_chairman.shtml (last visited July 17, 2012). 2 has lived in the residence in question, currently as a single mother with her three children, two of whom suffer from disabilities. See R 288, 292-94. For most of those years, she has struggled to make ends meet, while attempting to keep her family together, be a good role model for her children, and find connections within the local community. This behavior is undisputed in the record, evidenced, among other things, by her history as a model tenant, and the fact that her youngest child, Jacob, attends the DREAM Charter School, which caters to his special educational and health needs through speech therapy, adequate nursing stations to assist with his seizures, counseling services, and small class room settings, and is a mere four blocks from the residence in question. See R 288, 293-94, 409. In 2006, Ms. Perez admitted to NYCHA employees that she had underreported her income, which resulted in her underpayment of rent. Ms. Perez was arrested and charged with a felony. See R 85-86. She cooperated with law enforcement from the beginning and ultimately entered into an agreement with the Assistant District Attorney and NYCHA to plead guilty to the misdemeanor crime of petit larceny and commit to a restitution schedule to pay back society and the City for the wrong she committed. See R 13, 289-90, 364. It is undisputed that, since then, she has abided by her restitution commitments. See R 160, 365-80. After Ms. Perez pled guilty and agreed to restitution, and notwithstanding her 3 cooperation and good faith attempts to cure her admitted mistake, NYCHA commenced a proceeding against her to terminate her tenancy through an administrative hearing based solely on her underreporting of income, using her guilty plea as evidence against her. R 382-86. On March 31, 2010, the Supreme Court affirmed NYCHA’s judgment to terminate Ms. Perez and her family’s tenancy. Perez v. Rhea, 2010 WL 1458995 (Sup. Ct. N.Y. Cnty. Mar. 31, 2010) On August 25, 2011, the New York Appellate Division, First Department, in a 4-1 decision, reversed the judgment of the Supreme Court of New York and vacated the administrative hearing and NYCHA’s decision to terminate Ms. Perez’s tenancy, and remanded for a lesser penalty. The First Department reasoned, based on the controlling standard established by this Court in Pell v. Board. of Education, that “termination of [the] petitioner’s tenancy was ‘so disproportionate to the offense,’ underpayment of rent, ‘in light of all the circumstances, as to be shocking to one’s sense of fairness.’” Perez v. Rhea, 87 A.D.3d 476, 478, 928 N.Y.S.2d 688, 690 (1st Dep’t 2011) (quoting Pell v. Bd. of Educ., 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 841 (1974)). The First Department made this determination after examining Perez’s offense, the proposed penalty, her record as a tenant, her acts of restitution, appellate court precedent and her familial circumstances. Id. at 478-80, 928 N.Y.S.2d at 690-91. 4 In this amicus brief, Housing Court Answers, Inc. (“HCA” or “amicus”) urges this Court to uphold and apply the precedent set by this Court in Pell and followed by the First Department’s decision in Perez and numerous appellate court decisions. When applying the Pell standard, New York’s Appellate Courts have consistently taken into account mitigating factors and the circumstances of the individuals concerned. When reviewing the outcomes of administrative hearings pursuant to CPLR Article 78, lower courts must continue to conduct a rigorous fact-specific inquiry of the offense, the penalty, the circumstances and the consequences. And as in the case of Ms. Perez, where the outcome of an administrative hearing is “‘so disproportionate to the offense’ . . . ‘in the light of all the circumstances, as to be shocking to one’s sense of fairness,’” we urge the court to continue to apply the standard in a flexible manner, recognizing that families are not infallible and that justice should be tempered with mercy. Id. at 478, 928 N.Y.S.2d at 690. At its core, Pell ensures that the decisions of administrative agencies are consistent with the notions of fairness and proportionate justice. If the Court condones NYCHA’s decision in this case - and finds that a single offense is sufficient to justify the most draconian of penalties on a family (homelessness), despite nearly 40 years of good behavior, cooperation, restitution, and compelling 5 family concerns, including two young children with disabilities - it will be calling into question nearly forty years of precedent and Pell will cease to be a check on unreasonable administrative agency decisions. R 158-59, 288, 291-94. Not only would this have a devastating impact on the thousands of families that currently or may in the future rely on NYCHA for affordable housing, it could impact every citizen of New York State who may, at one point or another in his or her life, be required to look to an administrative agency to administer justice. INTEREST OF THE AMICUS CURIAE HCA was founded in 1981 when a group of concerned advocates working at community based groups and legal service offices started two task forces to help tenants without lawyers in the Bronx and Brooklyn Housing Courts. Through advocacy campaigns and research, HCA convinced the court system to make access to justice for pro se litigants a priority. HCA obtained permission from the courts to set up information tables in the lobbies of New York City’s Housing Courts, and started providing information to all pro se litigants, tenant or landlord. In April 2010, HCA received permission from NYCHA to set up an information table at NYCHA’s headquarters at 250 Broadway, New York, New York, where termination of tenancy hearings are held. 6 Last year, HCA’s information tables assisted over 31,000 litigants, more than 90% of whom were pro se tenants. HCA is also a member of the Emergency Rent Coalition which is a group of more than 40 charities and non-profit organizations that distribute grants to tenants threatened with eviction and provide eviction prevention services. HCA now goes beyond giving critical information to pro se litigants. Today, HCA gathers information for research and advocacy purposes. HCA tracks the numbers and types of case filings as well as evictions each year. HCA staff observes courtrooms and listens to hundreds of hours of testimony, conversation and oral argument on the record in order to prepare testimony for the Housing Court Advisory Council. Additionally, HCA assists thousands of tenants at risk of eviction obtain funds to pay their back rent. Through the Emergency Rent Coalition, HCA directs tenants to private charities that can provide grants or loans to save their apartments. HCA staff also assists thousands of tenants in resolving problems with their applications for rent arrears grants through programs administered by the City of New York. The intimacy and breadth of HCA’s experience in the courthouse and the large number of people HCA staff meet and counsel not only gives HCA a unique 7 perspective on the day-to-day operation of New York City’s Housing Courts and the difficulties and obstacles confronted by pro se tenants as they attempt to navigate through the court system, but the difficulties pro se tenants face in administrative hearings. Just as more than 90% of the tenants in New York City Housing Court appear pro se - while almost 90% of landlords are represented by counsel - this same phenomenon occurs in the administrative hearing context, where tenants often appear pro se and face an intimidating and complex process with experienced investigative professionals and trained advocates on the other side.2 As a general rule, pro se tenants are unfamiliar with administrative hearing procedure, unsure of their rights, and lack information about where they can go for help. The difficulty confronting the pro se tenant is compounded by the fact that administrative hearings are run by experienced, seasoned professionals. Unrepresented tenants, who are unaware of their rights, their options or even where to go to get help, are easily convinced to sign stipulations, admit guilt and/or accept termination of tenancy without presentation of the evidence at their disposal. 2 Harvey Gee, From Hallway Corridor to Homelessness: Tenants Lack Right to Counsel in New York Housing Court, 17 Geo. J. on Poverty L. & Pol’y 87, 88 (2010). 8 ARGUMENT Amicus asks the Court of Appeals to uphold its standard articulated in Pell and the decisions of New York’s Appellate Divisions, which have consistently taken into account mitigating evidence and other circumstances when reviewing administrative agencies’ disciplinary determinations. In interpreting the standard articulated in Pell, New York’s Appellate Courts have overwhelmingly overturned administrative hearing penalties where the tenants committed far more serious offenses than that committed by Ms. Perez and proffered far less mitigating evidence than that which was demonstrated by Ms. Perez. In contrast, in supporting its interpretation of Pell, NYCHA does not cite to a single case that is similar to Ms. Perez’s situation in terms of the seriousness of the offense and the presence of mitigating evidence and circumstances. NYCHA’s cases are, in fact, completely distinguishable. A. The Court Of Appeals Must Preserve The Pell Standard And Appellate Courts’ Consistent Interpretation Under N.Y. C.P.L.R. § 7803(3), New York courts are permitted to review the measure of discipline imposed by administrative agencies. N.Y. C.P.L.R. § 7803(3) states that: [t]he only questions that may be raised in a proceeding under this article are . . . whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of 9 discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed[.] (emphasis added) It is the underlined language that is at issue here. It is important to note that the mere fact that NYCHA has the right under its regulations to impose a particular penalty is not determinative of the question of whether the penalty is proportionate for purposes of Article 78. A court can set aside an administrative agency’s decision under Article 78 for various reasons - whether the decision was made in violation of lawful procedure or was affected by an error of law are two such reasons. But Article 78 goes further. N.Y. C.P.L.R. § 7803(3) says that even if the decision was itself permissible under applicable law, it must still be dismissed if it was “arbitrary and capricious or an abuse of discretion, including . . . as to the measure or mode of penalty or discipline imposed.” In other words, agencies do not have carte blanche to impose any penalty authorized under their regulations, no matter how harsh or unfitting for the circumstances. Interpreting the language underlined above, the Court of Appeals in Pell adopted a test for determining an abuse of discretion in the context of an administrative agency’s imposed penalty or discipline: “‘the statute authorizes us to set aside a determination by an administrative agency, only if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light 10 of all the circumstances, as to be shocking to one’s sense of fairness.’” Pell, 34 N.Y.2d at 233, 356 N.Y.S.2d at 841 (quoting Stolz v. Bd. of Regents, 4 A.D.2d 361, 364, 165 N.Y.S.2d 179, 182 (3d Dep’t 1957)).3 While recognizing the importance of an administrative agency being able to conduct its operations efficiently and without undue interference, the Court of Appeals also clearly stated that the purpose of N.Y. C.P.L.R. § 7803 was to ensure that justice is carried out by preventing unduly harsh sanctions: [T]he reason for the enactment of the statute was to make it possible, where warranted, to ameliorate harsh impositions of sanctions by administrative agencies. That purpose should be fulfilled by the courts not only as a matter of legislative intention, but also in order to accomplish what a sense of justice would dictate. Pell, 34 N.Y.2d at 235, 356 N.Y.S.2d at 842-43 (emphasis added). Although recognizing forty years ago that the standard it adopted was imperfect and subjective, this Court understood that this check was absolutely necessary in the face of administrative agencies, which are so often overwhelmed by unending case loads and the machinery of bureaucracy such that they are frequently unable to conduct a proper analysis of the facts necessary to administer justice. 3 The Pell standard was affirmed by this Court in Featherstone, where it held that “[i]t is now well settled that the Appellate Division is subject to the same limited scope of review that is applicable to this Court’s review of administrative sanctions: the sanction must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law.” Featherstone v. Franco, 95 N.Y.2d 550, 554, 720 N.Y.S.2d 93, 96 (2000). 11 Moreover, the Court noted that in reviewing the proportionality of an administrative agency’s penalty, courts must look at the impact of the penalty on the individual and his or her family, particularly where the offense did not involve “grave moral turpitude” or “grave injury to the agency involved or to the public weal”: Consideration of the length of employment of the employee, the probability that a dismissal may leave the employee without any alternative livelihood, his loss of retirement benefits, and the effect upon his innocent family, all play a role, but only in cases where there is absent grave moral turpitude and grave injury to the agency involved or to the public weal. Id. at 235, 356 N.Y.S.2d at 842-43 (emphasis added). Ms. Perez’s situation appears to be just the type of case Pell had in mind. Ms. Perez admittedly made a mistake. And, as a result, she was arrested, now has a permanent criminal record, and is required to make restitution to NYCHA.4 But other than her isolated mistake, Ms. Perez has been a model tenant.5 And her misdemeanor crime of petit larceny does not reflect “grave moral turpitude.” Pell, 34 N.Y.2d at 235, 356 N.Y.S.2d at 843. Likewise her “innocent family,” including 4 Ms. Perez “has already repaid over $10,000 of the amount owed and in a few years restitution will be complete.” Perez, 87 A.D.3d at 478-79, 928 N.Y.S.2d at 690. 5 Ms. Perez “is a long-time resident of NYCHA housing with an otherwise unblemished record.” Id. at 479, 928 N.Y.S.2d at 690. Other than her arrest in connection with this action, Ms. Perez had a clean criminal record. See R 280. 12 children with disabilities, should not be penalized for her one mistake. Id.6 Nor can NYCHA, which is receiving restitution from Ms. Perez to make up for her wrongdoing, claim to suffer “grave injury” if Ms. Perez and her three children were to remain in her home. Id. It was mitigating factors like these which this Court had in mind when it noted “always there must be a persisting discretion exercised to avoid unnecessary hardship to erring human beings not compelled by a supervening public interest.” Id. at 241, 356 N.Y.S.2d at 848. As noted above, a penalty authorized under the applicable regulations is not necessarily appropriate and must not necessarily be upheld by a court. In this case, the draconian penalty of eviction (and likely homelessness) of Ms. Perez and her family is patently inappropriate and this Court should uphold the Appellate Division’s decision rejecting the administrative agency’s determination. 6 The impact on Ms. Perez’s children cannot be overstated and is clear from the record. While the record need not be repeated at length here, it is sufficient to note that both her two youngest children attend schools which specifically cater to children with special needs. Brandon attends the Graham School that employs a "program [] designed to support students with varying ability levels who struggle academically and/or emotionally." R 292. Jacob attends the DREAM Charter School which caters to his special educational and health needs through speech therapy, adequate nursing stations to assist with his seizures, counseling services, and small class room settings. R 292-94. 13 B. New York Appellate Courts Applying The Pell Standard Have Consistently Held That Administrative Penalties Affecting Tenancy Were Disproportionate To The Offense In Cases With Graver Offenses And Weaker Mitigation Evidence Than That Which Was Demonstrated By Ms. Perez Following the precedent set by Pell, New York’s Appellate Courts have consistently overturned highly punitive administrative hearing decisions, especially in cases such as Perez’s where - 1) the penalty affected tenancy, 2) there were familial mitigating factors, and 3) the policy consideration was economic, not health and safety. See Wise v Morales, 85 A.D.3d 571, 571, 573, 925 N.Y.S.2d 479, 480, 481 (1st Dep’t 2011) (vacating the penalty of termination of tenancy where the offense was underpayment of rent and eviction would result in homelessness for the tenant and her three children); Paul v. N.Y.C. Hous. Auth., 89 A.D.3d 520, 521, 523, 932 N.Y.S.2d 477, 477-79 (1st Dep’t 2011) (annulling NYCHA’s order to terminate tenant’s rent subsidy where the tenant’s offense was failure to report income and termination would result in homelessness for tenant and her minor child); Davis v. N.Y.C. Dep’t of Hous. Pres. & Dev., 58 A.D.3d 418, 419, 871 N.Y.S.2d 86, 86-87 (1st Dep’t 2009) (vacating the termination of a tenant’s rent subsidy where the offense was failure to report income and termination would result in homelessness for the tenant and her three children); Gray v. Donovan, 58 A.D.3d 488, 488, 870 N.Y.S.2d 347, 348 (1st Dep’t 2009) 14 (vacating termination of tenant’s housing subsidy, where the offense was failure to report income, and termination would result in homelessness for tenant and her minor son).7 The Appellate courts have particularly been willing to challenge the autonomy and independent decision making of administrative agencies charged with housing decisions, because they have recognized that “forfeiture of public housing accommodations is a drastic penalty because, for many of its residents, it constitutes a tenancy of last resort.” Holiday v. Franco, 268 A.D.2d 138, 142, 709 N.Y.S.2d 523, 526 (1st Dep’t 2000) (citation omitted). Amicus would further reason that courts are reluctant to terminate tenancies due to the Court of Appeals’ wariness of punitive sanctions that will inevitably have a deleterious effect upon “innocent famil[ies].” Pell, 34 N.Y.2d at 235, 356 N.Y.S.2d at 843. This 7 In contrast, these cases affirmed at the appellate level termination of tenancy, but only where the health and safety of the other tenants was in question. See Rodriguez v. N.Y.C. Hous. Auth., 84 A.D.3d 630, 631, 923 N.Y.S.2d 502, 503 (1st Dep’t 2011) (finding that termination of tenancy did not shock the court’s sense of fairness where petitioner tenant pled guilty “to criminal sale of a controlled substance in the third degree and [] to criminal facilitation stemming from her arrest for the sale of crack cocaine to an undercover officer in or at the subject housing project”); Spencer v. N.Y.C. Hous. Auth., 81 A.D.3d 537, 537, 917 N.Y.S.2d 176, 176-77 (1st Dep’t 2011) (finding that termination of tenancy did not shock the court’s sense of fairness since the tenant engaged in numerous confrontational acts including “threatening to injure [her] neighbor”); Bellamy v. Hernandez, 72 A.D.3d 814, 814-15, 898 N.Y.S.2d 469, 470 (2d Dep’t 2010) (finding that termination of tenancy was not shocking to one’s sense of fairness where the petitioner tenant was involved in a confrontation with three police officers in his building as they were on routine patrol, which resulted in injury to one officer). 15 deleterious effect is painfully evident in the case of Ms. Perez, where her family, including her 9 year old son, will be forced into homelessness. R 158-59. Even in cases where the administrative agency could demonstrate strong policy considerations affecting health and safety (which is not the case here), New York’s Appellate Courts have recognized that these considerations are often outweighed by the enormous cost of tenancy terminations. See Vazquez v. N.Y.C. Hous. Auth. (Robert Fulton Houses), 57 A.D.3d 360, 871 N.Y.S.2d 10 (1st Dep’t 2008); Spand v. Franco, 242 A.D.2d 210, 663 N.Y.S.2d 813 (1st Dep’t 1997). In Vazquez, NYCHA, through an administrative hearing, terminated Ms. Anita Vazquez’s tenancy for rent delinquency and for non-desirability. In particular, Ms. Vazquez was arrested for “‘gain[ing] the trust of a 74-year old woman’ and then us[ing] the woman’s bank card to make thousands of dollars of unauthorized withdrawals.” Addendum 1 (Answer at 5, Vazquez v. N.Y.C. Hous. Auth. (Robert Fulton Houses), 57 A.D.3d 360, 871 N.Y.S.2d 10 (1st Dep’t 2008)) (citation omitted). The Appellate Division, First Department vacated the penalty of termination of tenancy against Ms. Vazquez. Although Ms. Vazquez had pled guilty to a felony - grand larceny in the third degree - having stolen from an elderly woman and fellow tenant, and consistently failed to pay her rent on time, the First Department recognized the strong mitigating factors of her case. 16 Vazquez, 57 A.D.3d at 360-61, 871 N.Y.S.2d at 11-12 (1st Dep’t 2008). Although Ms. Vazquez lived without dependent children and was far from a model tenant, she made restitution to her victim, she had no criminal record (so the felony was an aberration), and she was disabled. Id. at 360, 871 N.Y.S.2d at 10. This mitigating evidence that led the court to overturn the penalty of eviction in Vazquez pales in comparison to the mitigating evidence and circumstances presented by Ms. Perez. Although both pled guilty to crimes and made restitution, Ms. Perez’s crime was a misdemeanor not a felony. In addition, unlike Ms. Vazquez, Ms. Perez has been a model tenant and, more importantly, unlike Ms. Vazquez, Ms. Perez is a single mother with three children - two of whom suffer from disabilities - and faces with them certain homelessness. R 158-59, 291-294. Furthermore, unlike in the case of Ms. Vasquez, which triggered policy implications as to whether NYCHA could properly oversee the safety of its tenants, Ms. Perez never victimized a fellow tenant. If termination of tenancy was found to be too harsh of a penalty for Ms. Vasquez, there is no principled basis on which to find that Ms. Perez’s penalty is proper. Spand is similar to the case of Ms. Perez because the New York Appellate Division, First Department rejected NYCHA’s attempt to terminate Ms. Spand’s tenancy for non-desirability. Spand v. Franco, 242 A.D.2d 210, 663 N.Y.S.2d 813 17 (1st Dep’t 1997). Yet Ms. Spand was much less sympathetic of a tenant than Ms. Perez, as Ms. Spand was arrested for possession and distribution of crack cocaine in the vicinity of the public housing grounds. Addendum 2 (Respondents’ Brief at 3-4, Spand v. Franco, 242 A.D.2d 210, 663 N.Y.S.2d 813 (1st Dep’t 1997)). Nevertheless, notwithstanding that Ms. Spand may have been a danger to herself and her fellow tenants by attempting to profit from harm that she had inflicted and NYCHA arguably had a profound need to stop such action and keep its tenants safe, the First Department recognized that Ms. Spand deserved a second chance. Like Ms. Spand, Ms. Perez argues that termination of tenancy would result in the eviction of her and her three children. Yet Ms. Perez’s situation is even more dire (and therefore the circumstances more compelling), as two of Ms. Perez’s children suffer from disabilities and Ms. Perez has argued that the result of such eviction would be homelessness for her and her three children. R 158-59, 291-94. Justice requires that like Ms. Spand, Ms. Perez be given a second chance. A decision to uphold the eviction of Ms. Perez would be completely inconsistent with both Vazquez and Spand. In those cases, under far less compelling facts, courts have applied Pell in finding that eviction is too harsh a penalty for human error so as to offend notions of fairness. Pell and its progeny 18 require a determination that Ms. Perez not be evicted in light of the circumstances of her case. C. Every Case NYCHA Cites To Support Its Proposition That The Penalty Imposed On Ms. Perez Was Proportionate To Her Circumstances Is Highly Distinguishable From The Case At Bar In contrast to the numerous cases where courts have held that termination of tenancy is an inappropriate penalty where the wrongdoing in question is not one of “grave moral turpitude,” especially where the continued tenancy of the individual and her family does not endanger the health and safety of others, each of the six cases NYCHA cites to support its proposition that termination of Perez’s tenancy does not “shock the conscience” is highly distinguishable from Perez’s circumstances. See Brief of Respondent-Appellant at 23-24, Perez v. Rhea, 87 A.D.3d 476, 928 N.Y.S.2d 688 (1st Dep’t 2011).8 In each of these six cases, unlike the case at bar, either there was no mitigating evidence or the administrative agency’s oversight of health and safety were directly at stake. 8 The six cases NYCHA cites to argue Ms. Perez’s penalty is proportionate to her offense are: Newton v. Mun. Hous. Auth., 38 N.Y.2d 220, 379 N.Y.S.2d 688 (1976); Parker v. N.Y.C. Hous. Auth., 73 A.D.3d 632, 905 N.Y.S.2d 139 (1st Dep’t 2010); Bland v. N.Y.C. Hous. Auth., 72 A.D.3d 528, 901 N.Y.S.2d 158 (1st Dep’t 2010); Smith v. N.Y.C. Hous. Auth., 40 A.D.3d 235, 835 N.Y.S.2d 131 (1st Dep’t 2007); Waterside Redevelopment Co. v. Dep’t of Hous. Pres. & Dev., 270 A.D.2d 87, 704 N.Y.S.2d 63 (1st Dep’t 2000); and Cuevas v. Beacon Hous. Auth., 220 A.D.2d 179, 644 N.Y.S.2d 108 (3d Dep’t 1996). 19 NYCHA cites Newton ostensibly because it is a New York Court of Appeals case in which a tenancy termination was affirmed for a tenant’s failure to accurately report income to the Municipal Housing Authority (“MHA”). Newton, 38 N.Y.2d at 221-22, 379 N.Y.S.2d at 689-90. However, even a cursory reading of Newton makes clear that the case did not involve the very issue at the heart of the instant case - the question of the proportionality of a penalty. Rather, it involved a question of statutory interpretation - whether under the governing statute, a welfare recipient was required to report her income to the applicable housing authority. Id. at 222, 379 N.Y.S.2d at 690. The Court rejected the tenant’s arguments and held that the statute did require such income to be reported.9 Pell was not even implicated in Newton.10 Here, the question is not whether a tenant must properly report her income (there is no dispute that such a requirement exists), but whether this Court, relying on Pell, should uphold severe administrative penalties for failure to report income in the face of strong mitigation evidence and a misdemeanor, first time offense. As such, Newton has no bearing 9 This Court noted that, “[p]etitioner's reliance upon 9 N.Y.C.R.R. 1627-2.6(c)(5)(i), which provided, in part, at the time this proceeding was commenced, that ‘[income] reviews are not required of families or persons receiving full or partial monetary welfare assistance’, is misplaced.” Newton, 38 N.Y.2d at 222, 379 N.Y.S.2d at 690. 10 Indeed, a review of MHA’s brief submitted to this Court one year after this Court’s decision in Pell reveals that MHA never references Pell. See Addendum 3 (Brief for Respondent, Newton v. Mun. Hous. Auth., 38 N.Y.2d 220, 379 N.Y.S.2d 688 (1976)). 20 on the case at bar. And a review of Ms. Newton’s briefs to this Court reveals that she did not rely on any mitigating evidence. See Addendum 4 (Brief for Appellant, Newton v. Mun. Hous. Auth., 38 N.Y.2d 220, 379 N.Y.S.2d 688 (1976)); Addendum 5 (Reply Brief For Petitioner-Appellant, Newton v. Mun. Hous. Auth., 38 N.Y.2d 220, 379 N.Y.S.2d 688 (1976)). Unlike Newton, which strictly involved statutory interpretation, Ms. Perez is asking this Court to uphold the appellate courts’ consistent employment of an abuse of discretion standard. NYCHA cites Parker because the Appellate Court affirmed NYCHA’s decision to terminate Sharon Parker’s tenancy for concealment of her and her daughter’s earned income. Parker, 73 A.D.3d at 632, 905 N.Y.S.2d at 140. But NYCHA fails to mention that - unlike in Perez where Ms. Perez was given no warning by NYCHA, generally cooperated with authorities, and has submitted a plethora of mitigation evidence - Ms. Parker not only repeatedly lied to NYCHA after she was warned and placed on probation, but she “failed to provide any evidence at [her] hearing regarding mitigating factors.” Id. at 634, 905 N.Y.S.2d at 141. As such, Parker is completely distinguishable from the case at bar. In Bland, the Appellate Division reversed the Supreme Court’s order to remand for a de novo hearing NYCHA’s decision to terminate Ms. Bland’s tenancy for underreporting her income. Bland, 72 A.D.3d at 528, 901 N.Y.S.2d at 21 159. The Supreme Court had erroneously ordered a de novo administrative hearing so that petitioner could be afforded a full opportunity with counsel to put additional mitigating evidence before the hearing officer. See Addendum 6 (Respondent-Appellant’s Brief at 4, Bland v. N.Y.C. Hous. Auth., 72 A.D.3d 528, 901 N.Y.S.2d 158 (1st Dep’t 2010)). Unlike the tenant in Bland, Ms. Perez is not seeking to re-open and amplify the record of the administrative hearing. Indeed, based on the record already existing, Ms. Perez’s mitigating circumstances were already powerful enough to convince four justices of the First Department to overturn the Supreme Court’s ruling. In Smith, the Appellate Division upheld the Supreme Court’s affirmation of termination of tenancy of Roslyn Smith. Smith, 40 A.D.3d at 235, 835 N.Y.S.2d at 132. Although NYCHA today argues that Smith is similar to Perez because Ms. Smith’s tenancy was terminated for misrepresentation of household income, NYCHA’s own brief submitted to the Appellate Division indicates that Smith is wholly dissimilar. Unlike the tenant in Perez, Ms. Smith was chronically delinquent in her rent payments to NYCHA, failed to list her husband as an occupant of the residence or his taxable income for rent calculation purposes, submitted false income affidavits through half of her more than two decades of tenancy, and rejected NYCHA’s offer to preserve her tenancy in exchange for 22 restitution of previous rents owed. See Addendum 7 (Brief of Respondent- Respondent at 7-9, 12, 38, Smith v. N.Y.C. Hous. Auth., 40 A.D.3d 235, 835 N.Y.S.2d 131 (1st Dep’t 2007)). Amicus agrees with NYCHA that a housing agency’s ability to regulate the number of people in each unit and to confirm their background is of paramount importance to protect the health and safety of other tenants. Unlike the case of Ms. Perez, Ms. Smith not only engaged in multiple actions which directly interfered with NYCHA’s ability to oversee the health and safety conditions of its tenants, but she was unremorseful and unwilling to commit to restitution. Ms. Perez’s situation is clearly different and compels a lesser penalty than that imposed upon Ms. Smith. Waterside is so utterly inapposite to Perez, it is unclear why NYCHA cited this decision. In Waterside, the Appellate Division, First Department annulled the determination of an administrative hearing, and directed the eviction of Ms. Rosenraich for running a business in her subsidized home and violating the regulations of the Department of Housing Preservation and Development (“HPD”). Waterside, 270 A.D.2d at 87, 704 N.Y.S.2d at 64. The premises was owned by a limited profit housing company, Waterside Redevelopment Company (“Waterside”). Ms. Rosenraich’s enterprising business involved sub-leasing her 2- bedroom apartment to multiple renters, where she charged upwards of $750 per 23 month, ultimately earning more money than what she paid to Waterside while grossly ignoring safety regulations. Id. at 87-88, 704 N.Y.S.2d at 64-65. Moreover, Ms. Rosenraich broke multiple HPD regulations by lying to Waterside concerning the increased number of tenants in her residence and her increased income. Id. at 88, 704 N.Y.S.2d at 65. Unlike the case of Ms. Perez, the record in Waterside is devoid of any mitigating circumstances. Moreover, unlike the case of Ms. Perez, Waterside directly implicates the ability of a government subsidized lessor to oversee the health and safety conditions of its tenants. In Cuevas, the petitioner tenant Milagros Cuevas repeatedly deceived the Beacon Housing Authority (“BHA”) regarding the number of occupants in her apartment and her reported income. Cuevas, 220 A.D.2d at 181, 644 N.Y.S.2d at 109. Ms. Cuevas allowed her boyfriend, Arique Dross to live in her apartment for several years without reporting him as a tenant, despite the fact that he was arrested for assault, and the housing authority was not given the opportunity to conduct a proper application process and background check. Addendum 8 (Brief of Respondents-Appellants at 11, 15-16, Cuevas v. Beacon Hous. Auth., 220 A.D.2d 179, 644 N.Y.S.2d 108 (3d Dep’t 1996)). Given these facts, the Appellate Division, Third Department appropriately affirmed eviction. Unlike the case of 24 Ms. Perez, Cuevas directly implicates the ability of a housing authority to oversee the health and safety conditions of its tenants. Moreover, NYCHA’s primary argument that imposing a harsh penalty on Ms. Perez is necessary to deter other residents from misreporting their income is without basis. Ms. Perez was appropriately punished by the criminal justice system for her wrong, is making restitution, and has spent the last few years worried about whether the New York courts will sanction her and her children’s eviction and likely descent into homelessness. See R 158-59; Perez, 87 A.D.3d at 478, 928 N.Y.S.2d at 689. If other tenants of public housing even knew of Ms. Perez’s situation (which is unlikely), it is hard to believe that they would not view the harm she has suffered thus far as sufficient deterrence. Moreover, other tenants may not have the same mitigating factors as Perez that support an imposition of a lesser penalty (e.g. model tenant, cooperation and agreement to pay restitution, two disabled children). R 160, 288, 291-94, 365-80. NYCHA’s position appears to be - if you commit the offense, we can impose the maximum penalty authorized by law, regardless of the circumstances or the harm it would impose on the individual and her family. Article 78 and Pell compel a rejection of this position. Rather, proportionality and justice are principles that both the New York State Legislature 25 (in enacting Article 78) and the Court of Appeals (in establishing the Pell standard) have held must prevail over rote application of the statute. For the foregoing reasons, amicus respectfully requests that this Court apply the standard articulated in Pell and affirm the appellate courts' consistent overturning of tenancy terminations in the face of familial mitigating evidence and economic (as opposed to health and safety) policy considerations. In keeping with the New York Appellate Courts consistent view, amicus requests that this Court uphold the First Department's decision in Perez. Dated: New York, New York July 17, 2012 26 z:yw Ronit J. Berkovich David J. Schwartz Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 (212) 310-8000 On behalf of amicus curiae ADDENDUM 2006 WL 6271344 (N.Y.Sup.) Page 1 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. For Opinion See 2007 N.Y. Slip Op. 31506(U) (Trial Order) Supreme Court of New York. New York County In the Matter of the Application Of: Anita VAZQUEZ, Petitioner, for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. NEW YORK CITY HOUSING AUTHORITY (ROBERT FULTON HOUSES), Respondent. No. 2006-113892. December 15, 2006. Verified Answer Ricardo Elias Morales, General Counsel, New York City Housing Authority, Julia Millstein, of Counsel, 250 Broadway, 9th Floor, New York, NY 10007, (212) 776-5203. Nancy M. Harnett, Julia Millstein, Of Counsel. Respondent New York City Housing Authority (the “Housing Authority”),[FN1] by its counsel, answers the petition of Anita Vazquez (“Petitioner”) as follows: FN1. Robert Fulton Houses (“Fulton Houses”) is one of the Housing Authority's housing developments, not properly suable in its own name 1. Denies the allegations contained in paragraph 1 of the Petition, and respectfully refers the Court to section 401, et seq., of the New York State Public Housing Law for a description of the powers and duties of the Housing Authority. 2. Denies the allegations contained in paragraph 2 of the Petition, except admits that, prior to the termination of her tenancy. Petitioner was a tenant in the Housing Authority's Fulton Houses. 3. Denies the allegations contained in paragraph 3 of the Petition, except denies knowledge or information sufficient to form a belief as to when Petitioner received the Notice of Petition, and respectfully refers the Court to Petition (“Pet.”) Exh. B for a complete and accurate description of its contents. 4. Denies the allegations contained in paragraph 4 of the Petition, and respectfully refers the Court to Pet. Exh. C for a complete and accurate description of its contents. 5. Denies the allegations contained in paragraph 5 of the Petition, except denies knowledge or information sufficient to form a belief as to when Petitioner received the Determination of Status for Continued Occupancy, and respectfully refers the Court to Pet. Exhs. D & F for a complete and accurate description of their contents. 6. Denies the allegations contained in paragraph 6 of the Petition, except admits the Housing Authority terminated Petitioner's tenancy, and respectfully refers the Court to the Decision and Disposition of Hearing Officer Joan Pannell (“Hearing Officer”), dated May 31, 2006, annexed to this Verified Answer as Exhibit A. 2006 WL 6271344 (N.Y.Sup.) Page 2 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 7. Denies the allegations contained in paragraph 7 of the Petition, except admits Petitioner was pro se during her administrative hearing. 8. Denies the allegations contained in paragraph 8 of the Petition. 9. Denies the allegations contained in paragraph 9 of the Petition, except denies knowledge or information sufficient to form a belief as to whether Petitioner agreed to pay restitution or has paid restitution, and respectfully refers the Court to Pet. Exh. E for a complete and accurate description of its contents. 10. Denies the allegations contained in paragraph 10 of the Petition. I I. Denies the allegations contained in paragraph 11 of the Petition. 12. Denies the allegations contained in paragraph 12 of the Petition, except admits Petitioner seeks an expedited motion on this matter and a stay of the pending Landlord/Tenant I loldover petition in New York City Civil Court. 13. Denies the allegations contained in paragraph 13 of the Petition, except denies knowledge or information sufficient to form a belief as to the truth of the allegations concerning Petitioner's family arrangements and future housing sit- uations. 14. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in para- graphs 14 and 15 of the Petition. STATEMENT OF MATERIAL FACTS Background 15. The Housing Authority is a corporate governmental entity created pursuant to New York State Public Housing Law Section 401 to build and operate safe, decent, and sanitary public housing for lower-income residents of the City of New York. See N.Y. Pub. Hous. Law §§ 2, 37(1)(w) & 401. The Housing Authority is largely funded by the federal government through the United States Department of Housing and Urban Development (“HUD”), and must comply with the United States Housing Act and the federal rules and regulations thereunder. See 42 U.S.C. § 1437 et seq. To perform its mission, the Housing Authority is authorized to set standards on such matters as eligibility for tenancy and occupancy of Housing Authority apartments. See N.Y. Pub. Hous. Law §§ 2, 3(2), 37(l)(w), 156, 401; ; 24 C.F.R. § 960.202(a). 16. Petitioner was formerly the tenant of record of 418 West 17th Street, Apt. 4G, New York, New York, in the Housing Authority's Fulton Houses development. As discussed more fully below, the Housing Authority terminated Petitioner's tenancy after a Hearing Officer found she misappropriated more than $8,000 from an elderly tenant. Federal Law and Regulations 17. The federal government encourages public housing authorities to terminate or restrict the tenancies of those whose conduct prevents enjoyment of the premises by other members of the public housing community or places an undue strain on its financial well-being. The United States Housing Act, as amended, specifically requires public housing agencies to include in their leases the following provision: [A]ny criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such 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 ten- 2006 WL 6271344 (N.Y.Sup.) Page 3 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. ancy[.] 42 U.S.C. § 1437d(1)(6). The Housing Act further requires the Housing Authority to “maintain procedures designed to assure prompt payment and collection of rent and the prompt processing of evictions in cases of nonament of rent.” See 42 USC. § 1437d(c)(4(A. 18. To implement the United States Housing Act, HUD has issued regulations concerning a public housing tenant's obligations to (1) refrain from illegal and immoral activity and (2) pay rent on time each month. Those regulations read, in pertinent part: § 966.4 Lease requirements. (f) Tenant's obligations. The lease shall provide that the tenant shall be obligated: (4) To abide by necessary and reasonable regulations promulgated by the (public housing authority) for the benefit and well-being of the housing project and the tenants . (11) To act, and cause household members or guests to act, in a manner which will not disturb other residents' peaceful enjoyment of their accommodations and will be conducive to maintaining the project in a decent, safe and sanitary condition; (12)(i) To assure that no tenant, member of the tenant's household, or guest engages in: (A) Any criminal activity that threatens the health, safely or right to peaceful enjoyment of the premises by other residents (1)(2) Grounds for termination of tenancy. The PHA [public housing authority] may terminate the tenancy only for: (i) Serious or repeated violation of material terms of the lease such as the following: (A) Failure to make payment due under the lease... 24 C.F.R. §§ 966.4(f) & (1). Tenant Obligations under the Lease 19. As mandated by HUD, the Hlousing Authority's Resident Lease Agreement obligates tenants, members of the household, and guests to refrain from “[a]ny activity, on or off the Leased Premises or the Development, that results in a felony conviction.” See Petitioner's most recent lease agreement, signed on August 30, 2001, Housing Authority hearing exhibit I, annexed to this Verified Answer as Exhibit C at ¶ 12(r)(iii). The lease further prohibits tenants from engaging in “criminal activity that threatens the health, safety, or right to peaceful enjoyment of the Development by over residents” (id. at ¶ 12(r)(i)) and requires tenants to act in a manner that “will be conducive to maintaining the Development in a decent, safe and sanitary condition” (id. at ¶ 12(q)). Finally, tenants must “pay all rent, additional rent, charges and security deposits.... on the first day of the month such sum becomes due.” Id. at ¶ 12(s). Tenants agree that their tenancy may be terminated in the event they violate any material obligation under the lease. See id. at ¶ 19(a). Termination of Tenancy Procedures 20. fn accordance with its state-authorized and federally-mandated powers, the Iousing Authority takes administrative action pursuant to its Termination of Tenancy Procedures (“Termination Procedures”), a copy of which is annexed to this Verified Answer as Exhibit B, to terminate the tenancy of non-desirable tenants and those who are chronically delinquent in paying rent. The Termination Procedures define “nondesirability” as behavior which constitutes, among other things, “conduct on or in the vicinity of Authority premises which is in the nature of a sex or morals offense [or] a source of danger to the peaceful occupation of other tenants.” Id. “Chronic delinquency” means the “repeated failure or refusal of the tenant to pay rent when due” and “repeated” means the failure to pay rent when due “at least three times during any 12 month period” (i.e., “3 in 12” policy). Id.; NYCHA Management Manual, Chapter VII, page 4, annexed to this Verified Answer as Exhibit D. 2006 WL 6271344 (N.Y.Sup.) Page 4 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 21. The Termination Procedures strictly observe the due process requirements set forth in the consent decree in Escalera v. New York City Hous. Auth., 425 F.2d 853 (2d Cir. 1970), consent decree on remand docketed March 25, 1971, Case No. 67-CV-4307 (S.D.N.Y. 1971) (Mansfield, J.), and in Tyson-Randolph, et al. v. New York City Hous. Auth., Case No. 74-CV-1856 (S.D.N.Y. 1975) (Metzner, J.). The Housing Authority gives a tenant subject to termi- nation of tenancy the opportunity to discuss the problem with the I lousing Manager or her representative. If the Manager or her representative believes termination is the appropriate course of action, she forwards the case to the Tenancy Administrator for review and, if necessary, preparation of administrative charges. 22. The Housing Authority affords a tenant facing termination of tenancy a full due process hearing before an im- partial hearing officer on specific written charges. The tenant is apprized of her right to appear with an attorney, or other representative, to confront and cross-examine witnesses against her, and to present her own witnesses. After the hearing, the hearing officer issues a written decision and disposition, which is subject to the review and approval of the Housing Authority's Board. Charges Against Petitioner 23. As of November 2003, Petitioner had not paid rent on time for a single month from November 2002 through September 2003, and had failed to pay her rent for October 2003. Pursuant to the Termination Procedures, manage- ment attempted to meet with Petitioner to discuss her poor rent payment history. See Letters to Petitioner, dated No- vember 3, 2003 and November 18, 2003, annexed to this Verified Answer as Exhibit E. When Petitioner failed to respond, management forwarded her file to the Tenancy Administrator. See Transmittal to OSTA, dated November 28, 2003, annexed to this Verified Answer as Exhibit F. 24. By Notice and Specification of Charges dated January 14, 2004, the ousing Authority charged Petitioner with chronic rent delinquency, and scheduled a hearing to ke place on February 5, 2004. See Notice and Specification of Charges, dated January 14, 04, annexed to this Verified Answer as Exhibit G. Petitioner failed to appear on that day. In e absence of controverting evidence, the Heearing Officer issued a decision sustaining the arges and terminating Petitioner's tenancy. See Hearing Officer's Record, dated February 5, 04, and Decision and Disposition of I Officer, dated February 9, 2004, annexed to this erified Answer collectively as Exhibit II. 25. Petitioner made no effort to address the termination of her tenancy until several months later, when she finally applied to open her default. See Request to the Hearing Officer for a New I learing, dated April 29, 2004, annexed to this Verified Answer as Exhibit I; Memorandum re: Application to Reopen Default, annexed to this Verified Answer as Exhibit H. The Law Department did not object to Petitioner's application, and the Housing Authority thus began the process to schedule a new administrative hearing. See Memorandum, dated May 19, 2004, and Letter to Petitioner, dated June 28, 2004, annexed to this Verified Answer collectively as Exhibit J. However, before the Housing Au- thority set a date for the hearing, development management learned of Petitioner's arrest for stealing from an elderly woman's bank account. See Transmittal to OSTA, dated September 15, 2004, annexed to this Verified Answer as Exhibit K. Accordingly, the management office sent Petitioner a letter, dated September 13, 2004, offering her an opportunity to discuss the arrest with the Housing lousing Manager. See Letter to Petitioner, dated September 13, 2004, annexed to this Verified Answer as Exhibit L. 26. On that same day, Petitioner called the Housing Manager to report her September rent payment was late because she was suspended from her job, apparently as a result other arrest. See Interview Record, dated September 13, 2004, annexed to this Verified Answer as Exhibit M. The manager told Petitioner she had just sent her a letter inviting her to discuss the criminal matter, and Petitioner claimed she was innocent. See id.; see also Exh. L. However, based on the seriousness of the alleged misconduct and the ongoing criminal proceedings, the Manager informed Petitioner she planned to recommend the Law Department amend the termination-of-tenancy charges. Sec Exhs. M & K. She also reminded Petitioner she was entitled to have a lawyer present at her hearing. Sec Exh. M. 2006 WL 6271344 (N.Y.Sup.) Page 5 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 27. On December 13, 2004, the Housing Authority served Petitioner with notice and amended charges, which included non-desirability as well as ongoing rent delinquency based on Petitioner's failure to timely pay rent in every month from December 2003 to December 2004. The amended charges also included misrepresentation and non-verifiable income because Petitioner had not reported the “income” earned from her theft. See Reopened Default Letter, dated December 13, 2004, annexed to this Verified Answer as Exhibit N. The notice advised Petitioner of the hearing date. See id. The Administrative Hearing 28. An administrative hearing was held before the impartial Hearing Officer over three days between January 20, 2005 and April 18, 2006. See generally transcript of the administrative hearing, annexed to this Verified Answer as Exhibit O. Al the outset of the hearing on January 20, 2005, the Hearing Officer apprized Petitioner of her right to be repre- sented by an attorney. T. 4.[FN2] Petitioner confirmed she was prepared to represent herself. T. 5. FN2. (I.) refers to the page of the transcript of the hearing that contains supporting testimony or evidence. 29, After reviewing the Specification of Charges and listening to Petitioner's brief explanation for poor rent payment history, the Hearing Officer entered a denial of the charges and explained the administrative hearing procedures. T. 5-7. Prior to any testimony, the Housing Authority introduced Petitioner's lease and her most recent affidavit of in- come as foundation documents. See Exh. C; Petitioner's 2004 Affidavit of Income, Housing Authority hearing exhibit 2. annexed to this Verified Answer as Exhibit P. Although the petition implies Petitioner supports her children, the affidavit of income shows they are 25 and 28 years old and as Petitioner later testified, financially independent. See id.; Pet. ¶ 4.A; T. 70. Also prior to any testimony, Petitioner presented a letter from the Assistant District Attorney who handled her larceny conviction, indicating the date of her grand jury hearing and showing the proceedings were on- going. See Petitioner's hearing exhibit B, annexed to this Verified Answer as Exhibit Q.; T. 20. A. Charges Arising from Petitioner's Larceny 1. The Housing Authority's Case 30. The Housing Authority first called Joseph Karpeh, Petitioner's former Housing Assistant, who authenticated the newspaper article that had alerted Fulton Houses management to Petitioner's arrest. See Housing Authority hearing exhibit 4, annexed to this Verified Answer as Exhibit R; T. 13-14.[FN1] The newspaper article, which had run in the widely-read Daily News, announced to the public that a Housing Authority resident had “gained the trust of a 74-year old woman” and then used the woman's bank card to make thousands of dollars of unauthorized withdrawals. See Exh. R. As a result of the newspaper article, development management interviewed Petitioner about her illegal conduct and ultimately referred the case to the Tenancy Administrator for termination-of-tenancy proceedings. See T. 14. The Hearing Officer provided Petitioner an opportunity to cross-examine Housing Assistant Karpeh, but Petitioner de- clined to do so. See T. 18. FN1. The Hearing Officer did not make a recording on March 21. 2006 because no testimony or evidence was presented. 31. On March 21, 2006. after a year-long adjournment awaiting resolution of Petitioner's criminal case, Detective William Fieken appeared to testify for the Housing Authority.1 Despite the lengthy adjournment, during which time Petitioner's attorney in this proceeding represented her in criminal court. Petitioner requested another adjournment so that an attorney she has apparently retained could return from vacation. See T. 55; 62. That attorney never contacted the Housing Authority or. according to Petitioner followed up with her. See T. 57-58, 60. Thus, when he failed to appear at the adjourn date despite being noticed. Petitioner did not object to the Hearing Officer's suggestion they pioceed. See id. 2006 WL 6271344 (N.Y.Sup.) Page 6 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 32. On the adjourn date, a conflicting court appearance prevented Detective Ficken from testifying. See T. 62. The Housing Authority introduced several certified documents, including certified plea minutes, a felony indictment, a certified police report, and a certified arrest report, all of which reflect Petitioner's theft of thousands of dollars from the victim's bank account over the course of five dates. See Housing Authority hearing exhibits 5, 6. 7, and annexed to this Verified Answer collectively as Exhibit S: T. 62-64. In the plea minutes. Petitioner admits to having committed grand larceny in the third degree and is given six months to pay restitution or face up to seven years in state prison. See Exh. S. Attached to the felony indictment are photographs illustrating Petitioner's theft on one of the several dates she appropriated money from the victim's bank account. See id.; T. 73-74. Three photographs reveal Petitioner Hearing her New York Police Department crossing guard uniform, enter the bank with the victim; get something small from the victim's hand or purse; and then withdraw money from the ATM seconds later while the victim was out of sight. See id. 33. Although subpoenaed the victim did not testify. Her attorney reported she was too afraid to appear. See T. 74. As an individual so dependent on others for care that she resorted to entrusting Petitioner with her ATM card, the theft left her extremely fearful. See T. 74-75. 2. Petitioner's Case 34. At the first hearing date, Petitioner admitted she was the subject of an ongoing larceny prosecution, but claimed she had no idea why she had been accused. See T. 49. At the April I 8. 2006 hearing date, Petitioner testified, “I did go to the bank, but I did not steal that money” (T. 69) and “I did plead guilty only because I did not want to go to jail, and the reason I paid for something was because my family got together and loaned me the money of something I didn't do” (T. 77). Those claims, however, are rebutted by her own description, open court of the means by which she committed the crime: THE COURT: I low did you steal this property? THE DEFENDANT: I took it from her after she ave it to me. THE COURT: I'm sorry, who is she, the person you took it from THE DEFENDANT: The lady where I worked ... I went to the bank with. THE COURT: So you went to the bank with her and you took what, you took her ATM card? What did ou take? THE DEFENDANT: Took her money. THE COURT: And how did you do that? THE DEFENDANT: Never gave it to her. THE COURT: So you took out money with the ATM card and never gave it to her? THE DEFENDANT: Yeah. THE COURT: Okay, did she give you permission to take money out and keep it? THE DEFENDANT: No. THE COURT: In fact, she thought you would be taking money out and giving it to her... or using it for her benefit, is that right? THE DEFENDANT: Yes. Exh. S. 35. Petitioner also told the Hearing Officer, “[The victim] used to come to the corner and asked us for help. It was me and the other two crossing guards. It was not just me, and I reported that to the police station.” T. 77. In light of Pe- titioner's guilty plea, the investigator's conclusion Petitioner is the perpetrator, and Petitioner's failure to name another suspect, that statement serves only to provide a fuller picture of how Petitioner won the victim's trust. See Exh. S. Additionally. her attempt to establish a lack of motive by alleging, “I have no reason to steal money” is either patently false, or proves Petitioner's failure to pay her arrears represents a complete disregard for her lease obligations. T. 70. Finally, Petitioner tried to establish that she had paid restitution, but the Hearing Officer pointed out the documents she offered simply demonstrated she was on probation, and did not show she had paid restitution. See T. 67; see also 2006 WL 6271344 (N.Y.Sup.) Page 7 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Petitioner's April 18, 2006 hearing exhibit H, annexed to this Verified Answer as Exhibit T. B. Chronic Rent Delinquency Charges 1. The Housing Authority's Case 36. Citing Petitioner's ledger card, which the Hearing Officer admitted into evidence. Housing Assistant Karpeh testified Petitioner owed $1,400.00 in rent arrears as of the first hearing date. See Petitioner's Rent Ledger Card from December 1, 2003 to January 12, 2005, Housing Authority hearing exhibit 3, annexed to this Verified Answer as Exhibit U. The rent ledger card, consistent with Petitioner's admission “I can never paid it on time,” shows a pattern of consistent late or missing rent payments month after month. See id.; T. 78. Housing Assistant Karpeh further ex- plained that, even though Petitioner had expressed an intent to apply for public assistance. the Housing Authority could not recalculate her rent absent proof of her change in income. See T. 12. 37. Between hearing dates, on November 15, 2005, the Housing Authority served Petitioner amended charges to reflect her ongoing rent delinquency. See Amended and/or Supplemental Charges, dated November 15, 2005, annexed to this Verified Answer as Exhibit V. The specification of charges shows Petitioner failed to timely pay rent for every month during the pendency of the proceedings. See id. 38. On the April 18. 2006 hearing date, the I lousing Authority moved into evidence an updated rent ledger card. See Housing Authority hearing exhibit 3B, annexed to this Verified Answer as Exhibit W; T. 60-62. This updated ledger card shows that, under the specter of imminent eviction and after stealing over $8,000.00, Petitioner suddenly pro- duced the funds to pay her arrears. Sec Exh. W.Although Petitioner claimed welfare paid her arrears, the ledger card shows that she herself made several payments while she was out of work. See id.; T. 78. 2. Petitioner's Case 39. Although Housing Authority records show Petitioner has been consistently delinquent in rent payments since November 2002, Petitioner tried to explain her delinquency by claiming she had notified the Housing Authority in September 2004 she had resigned from work. See T. 47; Exhs. U, V & W. However, she never testified she showed development management proof of her change in income, which, as Housing Assistant Karpeh testified, is required for a rent readjustment. See T. 45; Housing Authority Management Manual, Chapter VI, the relevant pages of which are annexed to this Verified Answer as Exhibit X. Petitioner also presented copies of two checks from public assistance she had used in March 2004 to pay down some of the $1,611.50 in rent arrears she had allowed to accrue even while working. See Petitioner's hearing exhibit A, annexed to this Verified Answer as Exhibit Y; T. 6; Exh. U. 40. The remainder of Petitioner's defense to the chronic rent delinquency charges consisted solely of an effort to prove that, in the wake of being suspended from her job for her illegal conduct, she was attempting to secure welfare or disability benefits. See Petitioner's hearing exhibits C, D. E, F.G. & H annexed lo this Verified Answer collectively as Exhibit Z; T. 6, 15-18, 21-32,37-43. On the last hearing date, Petitioner submitted finally a letter showing the Social Security Administration had approved her application for benefits. See Petitioner's hearing exhibit I, annexed to this Verified Answer as Exhibit AA. Of course, that letter fails to address her history of rent delinquency even while employed. See Exh. P. The Hearing Officer's Decision 41. By Decision dated May 31, 2006, the Hearing Officer first recounted all the documents presented. See Exh. A. She then found the charges arising from Petitioner's theft and poor rent payment history had been sustained, concluding that “in stealing money from the bank account of a vulnerable older person, Tenant acted with malice aforethought and evinced patent non-desirability.” Id. The Hearing Officer dismissed specifications 3 and 4 because she disagreed with 2006 WL 6271344 (N.Y.Sup.) Page 8 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. the Housing Authority's theory that Petitioner's failure to report her theft earnings amounted to misrepresentation of income and a neglect to furnish complete income verification information. In conclusion, the Hearing Officer rec- ommended the Board terminate Petitioner's tenancy. See id. The Housing Authority's Determination And Commencement of this Proceeding 42. By Determination of Status, dated June 21, 2006, the Housing Authority adopted the Iearing Officer's decision terminating Petitioner's tenancy. See Pet. Exh. D. Thereafter, Petitioner commenced this Article 78 proceeding. In her petition. Petitioner misstates the facts of the case. For example, contrary to that the transcript clearly demonstrates, Petitioner claims the Officer denied her request for an adjournment to obtain counsel and actually failed to record the hearing at all. See Pet. ¶ 7. Furthermore, the Affirmation in Support of the Petition characterizes Petitioner's restitution obligation as a “voluntary payment,” when the plea allocution, at which Petitioner's counsel was present, made clear Petitioner would fact imprisonment if she failed to pay. See Affirmation in Support of Petition ¶ 4.A. These untruths shed further doubt on Petitioner's credibility and reinforce the Hearing Officer's decision to discredit her testimony. FIRST DEFENSE 43. To the extent the petition raises the issue of whether the determination of the Housing Authority was supported by substantial evidence at an administrative hearing, this proceeding must be transferred to the Appellate Division pur- suant to CPLR § 7804(g). SECOND DEFENSE 44. The Housing Authority's determination to terminate Petitioner's tenancy is supported by substantial evidence. THIRD DEFENSE 45. An administrative agency's decision will withstand judicial scrutiny if it has a rational basis and is not arbitrary and capricious. Where there is a rational basis to support the finding and conclusions of an administrative agency, a court may not substitute its judgment for that of the agency. The Housing Authority's determination to terminate Petitioner's tenancy for nondesirability, breach of rules and regulations, and chronic rent delinquency should not be disturbed because it is consistent with rational policies to promote a safe and decent public housing community and to deter crime. FOURTH DEFENSE 46. Since Petitioner pled guilty to larceny, the doctrine of collateral estoppel bars her from asserting her innocence in either the administrative hearing or in this proceeding. FIFTH DEFENSE 47. The I lousing Authority's determination to terminate this tenancy for nondesirability and breach of rules and reg- ulations is in accord with its own policies and procedures, applicable federal statutes and regulations, and controlling decisional law. SIXTH DEFENSE 48. The Housing Authority's termination of tenancy procedures fully comport with due process, and the Housing Authority afforded Petitioner due process in all aspects of the termination of her tenancy. 2006 WL 6271344 (N.Y.Sup.) Page 9 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. SEVENTH DEFENSE 49. Termination of tenancy was not shocking to the conscience where Petitioner stole from a vulnerable neighbor and failed to timely pay her rent for several years. EIGHTH DEFENSE 50. Petitioner breached her contractual obligations under the lease, including her obligations to refrain from “[a]ny activity, on or off the Leased Premises or the Development, that results in a felony conviction.” NINTH DEFENSE 51. Petitioner fails to state a cause of action for which relief can be granted. WHEREFORE, respondent Housing Authority respectfully requests that this Court issue an order dismissing the petition in its entirety with prejudice and with costs, including reasonable attorneys' fees, and awarding the Housing Authority such other and further relief as this Court deems just and proper. Dated: New York, New York December 15, 2006 END OF DOCUMENT ADDENDUM 60971 •1\ To Be Argued By: Eiyse Hilton Appellate Division Docket No. "11 ""'lut New York. County Clerk's Index No;. 409021/95 NEW YORK SUPREME COURT APPEUATEOMSION-RRST DEPARJJIENf In the Matter of the Application of 0/JV/A SPAND, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules -agalnst- RUBEN FRANCO, as Chairman of the New York City Housing Authotny and and THE NEW YORK CITY HOUSING AUTHORfTY, Respondents. JEFFREY SCHANBACK, GENERAL COUNSEL Attorney for Respondents NEW YORK CITY HOUSING AUTHORITY Elyse Hilton, of Counsel 75 Perk Place, 11th ffoor New York, New Yodc 10007 (212) 77(1-5(}92 Reproduced on recyclecJ paper. f ' I TABLE OF CONTENTS Preliminary Statement. Counterstatement of tha Question Presented Counterstatement of the Facts .. Point I A. B. c. THE FINDINGS OF NON-DESIRABILITY ARE SUPPORTED BY SUBSTANTIAL EVIDENCE . The substantial evidence standard. . . Substantial evidence supports the determination that Spand sold cocaine on or in the vicinity of project grounds ............... . The Housing Authority's new evidence was submitted to rebut claims made in the petition 1 2 3 7 7 8 9 Point II TERMINATION OF TENANCY WAS NOT UNDULY HARSH. . . .. 11 A. B. Spand's behavior poses a grave risk of harm to the public. . . . . . . The Housing Authority must protect its tenants 12 Point III SPAND IS NOT ENTITLED TO AN OPPORTUNITY TO CURE. 16 A. RPAPL § 753(4) was not raised in the court below. . . . . . . . . . . . . . 17 B. The plain language of RPAPL § 753(4) shows that it does not apply to public housing tenancies such as Spand's. . . . ..... 17 c. D. E. The Legislature's intentions in passing RPAPL § 753(4) do not apply to public housing. The Williams decision was wrongly decided. . Drug dealing is a crime and is not "curable" Conclusion . . -i- 19 21 23 25 PRELIMJ:NARY STA'l'BHBHT After a full due process hearing, at which she was represented by-counsel,· Olivia Spand's public housing tenancy was terminated for non-desirability: Spand had been arrested for selling crack on or in the vicinity of public housing grounds. At her hearing, Spand claimed that her arrest did not take place on public housing grounds, that she was eventually charged with possession and not sale of cocaine, and that, in any case, she had enrolled in a.drug rehabilitation program. However, the Hearing Officer credited the testimony of the police officer who had seen Spand selling drugs. The Hearing Officer also found that Spand's failure to complete the rehabilitation program negated the mitigating effect taking part in such a program would otherwise have had. The Hearing Officer therefore recommended that Spand • s tenancy be terminated. Spand challenged the termination of her tenancy in an Article 78 proceeding which was transferred to this Court because it raised a substantial evidence issue. -1- t COOIITBRSTA'l'EMENT 01" THE QUESTl:ONS PRESENrED 1. Was there substantial evidence in the record to support the Hearing Officer's fanding that spand was guilty of the charges against her, including the charge that she sold cocaine on or in the immediate vicinity of public housing grounds? The Housing Authority respectfully urges that this question be answered •yes.• 2. Was the penalty of termination of Spand's tenancy too harsh where the Hearing Officer found that Spand sold cocaine on or in the immediate vicinity of public housing grounds? The Housing Authority respectfully urges that this question should be answered •no.• This is an Article 78 petition transferred to this Court pursuant to CPLR 7804(g}. Therefore, the court below did not answer either of these questions. -2- COUNTERSTATEMBNT OP THE PACTS Shortly before ~~:00 p.m. on April 24, ~994, Housing Police Officer James RizzitellD observed Olivia Spand accept money in exchange for vials of what he assumed to be crack cocaine. See Exhibit ~ to the Housing Authority's Verified Answer ("Answer"); see also transcript of administrative hearing ("Tr.") at 33. Officer Rizzitello then arrested Spand for criminal sale and possession of a controlled substance. See Answer Exhibit ~. In the search incident to Spand's arrest, Officer Rizzitello found 20 vials of crack and $77 dollars in cash. See Answer Exhibits ~. 5; Tr. at 34. During her arrest, Spand identified her residence as ~260 Webster Avenue, Bronx, New York, her mother's address. See Answer Exhibit ~; Tr. ~9. In fact, Spand had lived in her own public housing apartment at 350 East ~43 Street for two years. Tr. 47. After learning of her arrest, project management began the process of seeking termination of Spand's tenancy pursuant to the Ho~sing Authority's Termination of Tenancy Procedures. See Answer Exhibit 2. These procedures were adopted pursuant to the consent decree in Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cere. denied 400 u.s. 853 (~970). In accordance with these procedures, on June 21, 1994, Spand met with the manager of Mott Haven Ho~ses to discuss her arrest. See Answer Exhibits 6 & 7. On July 25, ~994, the Housing Authority served Spand with a Notice and Specification of Charges alleging non-desirability based on her possession of cocaine, intent to -3- se11 cocaine and se11ing of cocaine on or in the immediate vicinity of project grounds. A hearing was schedu1ed before an impartia1 Hearing Officer for August 10, 1994. See Answer Exhibit 3. Fo11owing several adjournments, the hearing commenced on December 20, 1994 and continued on Apri1 26, 1995. At the hearing, the Housing Authority presented the testimony of Officer Rizzite11o, wbo testified that he bad arrested Spand in front of 340 A1exander Avenue in the Bronx. Tr. 33. The Housing Authority p1aced in evidence the Officer's arrest report as we1l as the po1ice 1aboratory report confirming that the via1s did contain cocaine. See Answer Exhibits 1 & 5. In response to the evidence presented by the Housing Authority, Spand offered only her own, uncorroborated testimony disputing the 1ocation of her arrest. See Tr. 48. Spand admitted that she had been arrested by Officer Rizzite11o and that she had possessed crack. Spand did not deny or produce evidence to rebut the charge that she had engaged in se11ing the drugs as we11. Instead, Spand defended her tenancy by stating that when she was arrested for the possession and sa1e of crack she had been •direct1y across the street" from Matt Haven Houses, in front of a grocery store and not on pub1ic housing property. Tr. at 48-52. Spand attempted to mitigate the charges against her by submitting an un-notarized, unsupported 1etter, dated May 18, 1994, that indicated Spand bad registered in the drug -4- I I I rehabi1itation and acupuncture program at Linco1n Hospita1. See Exhibit 9 to Answer. During cross-examination, Spand admitted that she had not comp1eted the program. Tr. at 57. Spand stated that she--and not her counse11or--decided she no 1onger needed he1p, and shou1d quit attending the program. At the c1ose of the hearing, Hearing Officer Sadur granted Spand's request to submit a memorandum of 1aw supporting Spand's contention that she shou1d not be terminated because her i11ega1 conduct occurred across the street from the deve1opment and not on project grounds. Tr. 60. The Housing Authority requested five days to respond to Spand's memo. Tr. 60. Spand's request was 1ater withdrawn. See Answer Bxhibit 12. On May 23, 1995, Hearing Officer Sadur issued a determination sustaining the Housing Authority's charges against Spand. Specifica11y, Hearing Officer Sadur he1d that Spand had possessed and so1d cocaine in the vicinity of the Matt Haven Houses, and that such conduct is non-desirab1e. See Answer Exhibit 11. In his determination, Hearing Officer Sadur rejected Spand's effort to mitigate the offense. Referring to the 1etter from Linco1n Hospital, Hearing Officer Sadur wrote, There was offered in mitigation evidence of treatment which [the] tenant has undergone for narcotic addiction from which, however, she was not officially discharged, Tenant having instead terminated it of her own volition. -5- Before recommending that Spand • s tenancy be terminated, Hearing Officer Sadur noted the fact that the outcome of the criminal case was not dispositive: [Wlhile the charge was apparently reduced in Criminal Court from selling to possession, it is the fact that the offense charged and proved in this forum is the exchange of narcotics for currency which militates against an ameliorated sanction. On June 7, 1995, after a review of the Hearing Officer's May 23, 1995, decision, the Housing Authority Board found Spand ineligible to remain in public housing. Notice of this determination was mailed to Spand on June 19, 1995. See Answer ExhLbit 12. on October 26, 1995, the Housing Authority commenced a holdover proceeding against Spand by personally serving her with a 30-Day Notice to Vacate. Spand, by counsel, then commenced an Article 78 proceeding, challenging the determination to terminate her tenancy on the grounds that the penalty was too harsh and that Spand was not arrested in the •immediate vicinity• of the project. See Petition at ,, 23 to 31. The Housing Authority agreed to put the Housing Court proceeding on holding pending the outcome of this proceeding. By order dated April 9, 1996, Justice Alice Schlesinger transferred Spand • s Article 78 proceeding to the Appellate Division pursuant to CPLR 7804 (g) for this Court to determine whether the Housing Authority's determination was supported by substantial evidence. -6- t I r PODIT J: THE· PJ:NDJ:NGS OP NON-DESJ:RABJ:LJ:TY ARE StrPPORTED BY SUBSTANTIAL EVIDENCE. Spand argues that the Housing Authority's determination was not supported by substantial evidence. Petitioner's Brief at 5- 10. Nonetheless, as discussed below, substantial evidence supports the conclusion that Spand possessed and sold cocaine on or in the vicinity of project grounds. A. The substantial evidence standard. Substantial evidence is •such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." 300 Gramatan Ave. Assocs. v. State Division of Human Rights, 45 N.Y.2d 176, 180, 379 N.E.2d 1183, 408 N.Y.S.2d 54, 56 (1978) (citation omitted) . That the same evidence would support a contrary conclusion does not detract from the substantiality of the evidence. Acosta v. Wollett, 55 N.Y.2d 761, 763, 431 N.E.2d 966, 447 N.Y.S.2d 241, 241 (1981). Hearsay is admissible in an administrative proceeding and, if sufficiently relevant and probative, may constitute substantial evidence. People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 485 N.E.2d 997, 495 N.Y.S.2d 332, 337 (1985); Wesley v. Popolizio, 186 A.D.2d 430, 589 N.Y.S.2d 316 (1st Dep•t 1992). -7- ~ I B. Substantial evidence supports the determination that Spand sold cocaine on or in the vicinity of project grounds. Spand argaes that the "onl.y" evidence supporting the conclusion that she sold and not just possessed cocaine was the Police Officer's Complaint Report. Petitioner's Brief at 5. Despite Spand's attempts to discredit it, the Complaint Report is contemporaneous, relevant evidence of the crime. Officer Rizzitello testified that he wrote the repo7t approximately one hour after making the arrest. Tr. ~3. At the top of the Complaint Report, the criminal offense listed is "criminal sale of controlled substance·. • Answer Exhibit ~; Tr. ~4-~5. One of the Penal Code citations noted is 220.31, which is criminal sale of a controlled substance in the fifth degree, a class D felony. Answer Exhibit 1. The Complaint Report also contains a "NITRO" number which indicates that the arrest was a felony narcotics arrest. Answer Exhibit 1; Tr. 22. Further, the narrative description of che arrest itself toward the bottom of the page indicates that the Police Officer observed Spand •exchange vials of alleged crack for U.S. currency. " Answer Exhibit ~. Thus, not only are there are no internal contradictions here, but the document is relevant, probative evidence of the fact that Spand was observed selling drugs by a police officer. Second, it is not true, as Spand argues, that all the other evidence contradicts the Complaint Report. The fact that the arresting officer had no independent recollection of the events was not surprising given that a year had passed since the arrest. -8- Further, the fact that the District Attorney's Office decided to charge Spand with a lesser offense has no meaning whatsoever. It is common knowiedge that decisions of this sort are made as a matter of course. C. The Housing Authority's new evidence was submitted to rebut claims made in the Petition. At the close of the administrative hearing, counsel for Spand indicated that she wanted to pursue the issue of what constitutes •vicinity• in a Brief. Counsel for the Housing Authority indicated he wanted five days to reply to Spand's Brief. However, Spand later chose not to submit a Brief. See Answer Exhibit 10. Nonetheless, in her Petition to the Supreme Court, Spand argued that the fact that her arrest did not occur on or in the vicinity of Housing Authority property made the Housing Authority's reliance on it arbitrary, capricious and in violation of due process. See Petition at ,, 24, 25, 28, 29. In its Answer to the Article 78 petition, the Housing Authority included the affidavit of one of its investigators who introduced a map and photographs of the site at which Spand claimed she had been arrested. See Answer Exhibit 8. This material was submitted to rebut the claim that Spand's arrest did not take place on or in the vicinity of Housing Authority property, an issue that the Housing Authority had not followed up on legally or factually because Spand had not done so. While Spand no longer presses the in-the-vicinity point in her Brief to this Court, she does continue to refer to her arrest -9- as being off-premises (~. ~Petitioner's Brief at 2, 3, 4). She also argues that the Housing Authority improperly presented new evidence as an Exhibit to its Answer. Petitioner's Brief at 9-11. Because Spand no longer presses the in-the-vicinity point, the Exhibit showing the location of her arrest need not be considered by this Court. Ironically, despite her outrage at the Housing Authority's introduction of this Exhibit in its Answer, Spand's Brief to this COurt is chock-full of references to post-hearing "facts" which are not documented by any evidence whatsoever, no less by evidence submitted to the Supreme Court. Spand alleges, without any evidence to back these claims up, that she has lived •peacefully and without incident for four years," that she •successfully completed a drug treatment program," that she •exhibited a tremendous determination to free herself of drugs and has succeeded in these efforts for close to three years," that she has •an unblemished record of close to three years," that she is "not currently in breach of any regulation." Brief at 14, 16, 17, 21, 22. What Spand claims to have done in the years since her administrative hearing is not only irrelevant to this Court's review of the termination proceeding but also necessarily put forward without any proof that these claims are true. In sum, substantial evidence supports the determination that Spand sold crack cocaine on or in the vicinity of project grounds. -10- I POINT J:J: TERMJ:NATJ:ON OP TENANCY WAS NOT UNDULY HARSH. Spand argues that termination of her tenancy was an unduly harsh punishment for one isolated incident. As stated above, the evidence at the hearing showed that Spand sold cocaine on or in the vicinity of project grounds. Given the serious nature of this incident, termination of tenancy was proper. The courts may set aside a penalty imposed by a government body "only if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness.• Pell v. Bd. of Educ., 34 N.Y.2d at 233, 356 N.Y.S.2d at 841, 313 N.E.2d 321 (1974), quoting Stolz v. Bd. of Regents, 4 A.D.2d 361, 364, 165 N.Y.S.2d 179, 182 (3d Dep't 1957). In applying this standard, the Court of Appeals explained that courts should weigh the severity of the misconduct and the harm or risk of harm to the agency and to the public such misbehavior poses. Pell, 34 N.Y.2d at 234, 356 N.Y.S.2d at 842. As courts have made clear, • [t] he judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.• Rochester Tel. Corp. v. U.S., 307 U.S. 125, 146 (1939); see also Howard v. Wyman, 28 N.Y.2d 434, 438, 271 N.E.2d 528, 322 N.Y.S.2d 683, 686 (1971). Consequently, as discussed below, the findings of the hearing officer should be sustained, and the Housing Authority's determination terminating Spand's tenancy should be upheld. -u- t I A. Spand's behavior poses a grave risk of harm to the ublic. There can be no debate that drug dealers and crack cocaine have caused and continue to cause serious harm to the public housing community_ This harm includes not only the danger resulting from the presence of drugs and the danger that young residents will be drawn into drug addiction or drug trafficking, but also the demoralization of the public housing community. When the Housing Authority is unable to evict those clearly involved in the drug trade, this "sends a demoralizing message to the residents of the community that the concerns of honest, law- abiding citizens are sacrificed in favor of criminals and drug dealers." Walker v. New York City Housing Authority, 91 Civ. 5259 (PNL}, 1991 U.S. Dist. LEXIS 18331 (S.D.N.Y. 1991). At her hearing, Spand claimed that she had given up drugs and, presumably, given up selling drugs, and presented evidence of enrollment in a drug program. The Hearing Officer was not impressed by this attempt to mitigate the charges against her and found that the fact that she was not officially discharged from any treatment program and that the "offense charged and proved in this forum is the exchange of narcotics for currency - . militates against an ameliorated sanction." The Hearing Officer's finding should be upheld by this Court. B. The Housing Authority must protect its tenants. The responsibility of the Housing Authority to protect its tenants was long ago recognized in Manigo v. New York City -12- - f ' I Housing Authority, 51 Misc. 2J 829, 831, 273 N.Y.S.2d 1003, 1004 {Sup. Ct., N.Y. Co. 1966), aff'd, 27 A.D.2d 803, 279 N.Y.S.2d 1014 (1st Dep'&), leave to appeal denied, 19 N.Y.2d 58, cert. denied, 389 U.S. 1008 (1967), where the court stated: There can be no doubt that the respondent, to protect the large concentration of children and elderly persons who reside within its properties, must take steps to prevent the development of unsafe conditions therein. Indeed, some courts have gone so far as to suggest that the Housing Authority may become liable to tenants if it fails to act. See Simmons v. City of New York, N.Y.L.J. Nov. 11, 1990, at 30, col. 1 {Sup. Ct. N.Y. County) (where City aware of drug activities, City may be liable for harm to plaintiff arising from drug activities where City fails to evict drug dealer) . Given the findings by the Hearing Officer sustaining the Housing Authority's charges against Spand, the rational basis for the action by the Housing Authority is evident. A drug dealing tenant threatens the safety of other tenants. In considering the relative levels of •guilt• or •innocence• of Spand, the court must keep in mind •the devastating effects of the drug epidemic upon the rest of society.• People v. Reyes, N.Y.L.J., Feb. 3, 1992, at 21, col. 2 (App. Div. 1st Dep't) (indictment for possession of drugs should stand even where it may result in deportation of wife where husband is •hard-working New York City employee•). Furthermore, the right of the Housing Authority to terminate the tenancies of those whose non-desirable conduct involved drugs and drug-dealing has been upheld on numerous occasions by this -13- Court. See Simons v. New York City Housing Authority, -- A.D.2d 648 N.Y.S.2d 18 {1st Dep't 1996) (sale and possession of illegal drugs); Jones v. New York City Housing Authority, 222 A.D.2d 260, 635 N.Y.S.2d 198 (1st Dep't 1995), ~denied, 88 N.Y.2d 807, 647 N.Y.S.2d 164 (1996) (tenant allowed others to conduct drug operation from his apartment); Gibson v. Blackburne, 201 A.D.2d 379, 607 N.Y.S.2d 345 (1st Dep•t 1994} (drug-dealing husband/co-tenant was a "danger to the health and safety of other tenants who resided in the same public housing community"); Rivera v. Hernandez-Pinero, N.Y.L.J. July 5, 1994, at 30, coL 6 (1st Dep•t 1994) (assertion that contraband belonged to others presented an issue of credibility left to the Hearing Officer) ; Blanco v. Popolizio, 190 A.D.2d 554, 555, 593 N.Y.S.2d 504, 506 (1st Dep•t 1993) (Housing Authority may terminate a tenancy for non-desirability based on the "sake if drugs either in the apartment itself or elsewhere on or in the vicinity of the Authority premises"); Wesley v. Popolizio, 186 A.D.2d 430, 589 N.Y.S.2d 316 (1st Dep't 1992) (husband possessed and sold cocaine in apartment petitioner shared with him as a cotenant). None of the cases cited by Spand (Peti~ioner•s Brief at 14- 16) involve drugs and drug-dealing, and each presented a strong mitigating factor. In James v. New York City Housing Authority, 186 A.D.2d 498, 589 N.Y.S.2d 331 (1st Dep•t 1992), this Court was evidently impressed by the fact that James, who had set fire to her apartment, was participating in counselling sessions and taking her medication, facts that were testified to at her -14- I hearing by a nurse. In Dickerson v. Popolizio, 168 A.D.2d 336, 562 N.Y.S.2d 658 (1st Dep't 1990), it was not the tenants' conduct but their mentally retarded son's conduct that was at issue. Further, contrary to Spand's version of Dickerson, the neighbor who was sexually abused by the Dickersons• son had relocated. In addition, the Dickersons provided the hearing officer with letters of support from the son's probation officer and a community mental health center. In Milton v. Christian, 99 A.D.2d 984, 473 N.Y.S.2d 194 (1st Dep't 1984), this Court was apparently sympathetic to the fact that Milton was going through a bad time in his personal life at the same time that he threatened Housing Authority employees. In addition to being supported by the caselaw, the policy of terminating tenancies where drugs are involved is explicitly endorsed by both federal and state statutes. Under federal law, a public housing tenant who allows criminal activity, especially drug-related activity, to occur forfeits their right to public housing. This mandate is expressed through the requirement that Housing Authority leases provide that: any drug-related criminal activity on or near [public housing] premises, engaged in by a public housing tenant . . . shall be cause for termination of tenancy. 42 u.s.c. § 1437d(l) (5); ~also N.Y. Real Prop. & Proc. Law§ 715. In summary, the sanction by the Housing Authority of termination of tenancy is an appropriate, indeed, necessary response to drug activity by Spand. Drug dealing is a danger to -15- - the entire public housing community and fully justifies termination of tenancy. Indeed, the Housing Authority must terminate tenancies which involve such drug activity in order to properly fulfill its mandate to provide safe and decent housing to the community it serves. POINT III SPAND :IS NOT ENT:ITLBD TO AN OPPORTUNITY TO CURE. Spand presents a third issue for this Court to consider which was not raised in the Supreme Court; namely, whether, pursuant to RPAPL § 753{4), she should be given an opportunity to cure the conduct which resulted in the termination of her tenancy. 1 Because this issue was not raised in the IAS Court, it is not properly before this Court. Further, RPAPL § 753{4) does not apply to public housing, but even if it did, drug- dealing would not be the kind of offense capable of being "cured." Finally, in only one proceeding has the Civil Court applied RPAPL § 753{4) to the Housing Authority and, for the reasons discussed below, that decision is being appealed to the Appellate Term. This statute provides that: In the event that [a summary proceeding to recover possession] is based upon a claim that the tenant or lessee has breached a provision of the lease, the court shall grant a ten day stay of issuance of the warrant [to remove], during which time the [tenant] may correct such breach. -16- A. RPAPL § 753(4) was not raised in the court be~ow. An appe~~ate court will not general~y consider issues introduced for_the first time on appea~ which were not raised in - the court below. See Matter of Silverman, 61 N.Y.2d 299, 310, 473 N.Y.S.2d 774, 781 (1984) (fai~ure to advance argument in court below waives right to argue it on appea~); Antone v. General Motors Corp., 64 N.Y.2d 20, 31, 484 N.Y.S.2d 514, 519 (1984) (statute of limitations argument not raised be~ow cannot be raised on appeal). In the instant case, Spand did not present the issue of RPAPL § 753(4) to the court below. In fact, her first mention of that statute appears in her Brief to this Court. Therefore, this Court shou~d decline to consider the issue. B. The plain language of RPAPL § 753(4) shows that it does not apply to public housing tenancies. RPAPL § 753(4) provides that if a holdover proceeding is "based upon a c~aim" that there has been a breach in the ~ease, then, if the landlord proves to the Civil Court that there has been a breach, the Civil Court may grant a stay to allow the tenant ten days to cure the breach. Thus, the Civil Court's first task is to determine whether the landlord's claim that there has been a breach is meritorious. Then, after finding such a breach, the Civi~ Court's next task is to give the tenant an opportunity to cure that breach. See Post v. 120 East End Ave. Corp., 62 N.Y.2d 19, 26, 475 N.Y.S.2d 821, 824 (1984) ("the court -17- shall, after adiudicating the merits, grant a losing tenant a ~0- day period within which to cure the default") (emphasis added). However, Poldov.er.proceedings based on the results of an . administrative hearing are not based upon "a claim" that there has been a breach. They are based upon the undisputable fact that there has been a breach. It is not within the Civil Court's power to re-litigate whether there has been such a breach. See New York City Housing Authority v. Clemente, N.Y.L.J. Sept. 23, ~994 at 2~. col. 4 (App. Term ~st Dep't) (parties may not re- litigate an agency determination of non-desirability in Civil Court) ; New York City Housing Authority v. Thoms, N.Y. L. J. June 17, 1993 at 23, col. 4 (App. Term 1st Dep't) (tenant's default at administrative hearing does not permit subsequent litigation on the merits in Civil Court). Thus, because a holdover proceeding based upon an administrative agency's determination is not based upon •a claim• of a breach and the Civil Court is without jurisdiction to re- litigate an administrative finding that there has been a breach, the Civil Court is also without jurisdiction to move to the second step of RPAPL § 753(4) and award a stay. In the instant case, the Hearing Officer correctly found that Spand had breached her lease by engaging in an illegal activity which •impairs the physical or social environment of the project.•' The Housing Authority's Board then terminated ' The Hearing Officer also found that this behavior was non- desirable behavior, another category of offense for which a tenancy may be terminated. -18- Spand's tenancy. The Housing Authority next commenced a holdover proceeding by serving Spand with a 30-Day Notice to Vacate. However, becau~e Spapdprought an Article 78 proceeding, the Housing Authority agreed to stay the Housing Court proceeding. Had that proceeding not been stayed, however, Spand would have been served with a holdover petition scheduling a Housing Court trial. The job of the Housing Court Judge would have been, among other matters, to ensure that Spand had properly been served the required holdover notices. But the Housing Court would not have had the power to determine whether Spand had breached her lease. Therefore, the Housing Court would not have had the jurisdiction to find that Spand had effected a cure of such breach in order to apply RPAPL § 753(4). c. The Legislature's intentions in passing RPAPL § 753(4) do not apply to public housing. Public housing tenants are different from other lease- holding citizens of this city in that they already have a cure period which far exceeds the ten days of RPAPL § 753(4), a right which they have had since prior to the passage of RPAPL § 753 (4). Following the 1968 Court of Appeals decision, First Nat'l Stores v. Yellowstone Shopping Center, 21 N.Y.2d 630, 290 N.Y.S.2d 721, tenants developed a practice of obtaining what became known as a Yellowstone injunction. Where a landlord claimed a breach of the lease and the tenant disputed that there had been a breach, tenants would seek an injunction. This injunction would stay the cure period provided for in the lease -19- I L__- so that the lease would not expire during the pendency of the proceeding. Then, once the court had resolved the dispute, either no brea~h wo~ld.have been found and the tenancy would be - safe, or else if a breach was found, the cure period would not have expired and the tenant could cure the breach during the remaining days of the cure period. Real Property and Procedure Law§ 753(4), enacted in 1982, provides a statutory equivalent of the Yellowstone injunction for residential tenants. It provides that in a summary proceeding "the court shall, after adjudicating the merits, grant a losing tenant a 10-day period within which to cure the default." Post, 62 N.Y.2d at 26, 475 N.Y.S.2d at 824. That is, where a landlord clahns a breach in the lease and the tenant disputes it, the tenancy is safe until there is a decision as to whether there has been a breach. If the court finds a breach,. the tenant has ten days to cure the problem or face the loss of thelr lease. In support of the enactment of the statute, State Senator Leon Bogues wrote that " [m] any tenants have the reasonable expectation that they will have a[n] apportunity to cure once they have been advised by the court that, in fact, they have breached the lease.• 1982 N.Y. Legis. Ann. at 280. Thus, it is clear that the Legislature felt that "many" tenants would be surprised to find out they could lose their homes following the Housing court's determination that they had breached their lease. But there simply is no such "surprise" for Housing Authority tenants who know from their initial meeting -20- with project management that they could lose their homes and who know, long before stepping foot in Housing Court, that they have been found gui~ty of.b~eaching their leases. - Indeed, one of the purposes of the Escalera procedures was to remove the potential for •surprise• and to thus give tenants an opportunity to cure. In the instant case, Spand met with project management in June 1994 when she was warned her tenancy could be terminated. She then received charges of non- desirability in July 1994 which also warned that her tenancy was at risk. Her hearing, scheduled for August 1994, was adjourned several times until December 1994 and then continued in April 1.995. Thus, Spand had ten months from the time she met with project management until. the day of hearing. Spand could have used these ten months to mitigate the behavior which had resulted in her arrest. But the best she could do was show she had entered a drug program but quit before she finished it and claim that, in any _case, she was not on project grounds at the time of her arrest. The hearing officer properly rejected this •cure.• D. The Williams decision was wrongly decided. In only one decision has a court held that RPAPL § 753{4) applies to public housing. See New York City Housing Authority v. Williams, 1996 N.Y. Misc. LBXIS 491, *1. {Civ. Ct. Kings County). As discussed above, the Housing Authority believes this decision was wrongly decided because the plain language of the statute as well as the legislative history strongly suggest that -21.- it simply does not apply to public housing. Therefore, the Housing Authority is currently appealing this decision to the Appellate Term~ Further, the Williams decision appears to be based, in part, on an erroneous belief that Housing Authority tenants are the same as all other residential tenants and that therefore they are entitled to take advantage of RPAPL § 753(4). See, Williams, 1996 N.Y. Misc. LEXIS 491, *3 ("Nor does the NYCHA tender any reason why its tenants should not be allowed the same advantage that is available to all other lease-holding citizens•). However, Housing Authority tenants are different from other lease-holding tenants in many ways. First, the Housing Authority itself is a creation of state law and is governed by the New York State Public Housing Law. As such, public housing developments are exempt from the Rent Control Law, the Rent Stabilization Law of 1969 and the Emergency Tenant Protection Act of 1974. N.Y.C. Admin. Code§§ 26-403e.2.(f), 26-408e and 26-504a.(1) (a); New York City Housing Authority v. Sykes, 117 Misc. 2d 293, 295, 457 N.Y.S.2d 680, 682 (Civ. Ct. Kings County 1982}. S~milarly, the right to succeed to a public housing apartment is based on different criteria than apply to other tenants. Further, and more to the point, before a public housing tenancy can be terminated for breaching a condition of the. lease, a lengthy administrative proceeding must be conducted pursuant to the consent decree in Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied 400 u.s. 853 -22- {1970) . This proceeding includes various due process protections culminating in a hearing before an impartial hearing officer and is estimated to take. an average of eight months to complete. See Escalera v. New York City Housing Authority, 924 F. Supp. 1323, 1328-30, 1345 {S.D.N.Y. 1996). In contrast, rent-controlled or rent-stabilized tenants are not entitled to any of these procedural steps. Thus, for those tenants, the importance of a ten-day cure period is clear. Finally, the proper remedy for a public housing tenant who is aggrieved by a Housing Authority determination is to bring an Article 78 proceeding--an option that is not available to other residential tenants.' E. Drug Dealing Is A Crime And Is Not "CUrable" Even were this Court to decide to consider the issue of RPAPL § 753 {4) and to then find that it applies to public housing tenants, Spand is still not entitled to take advantage of that statute because drug-dealin~ is not an offense capable of being •cured• during a ten-day cure period. Not all offenses are capable of being •cured• pursuant to RPAPL § 753 {4). "While the removal of an illegal occupant or an illegal condition can be cured within ten days, the court cannot fathom how you can cure a prior course of wrongful conduct.• Ocean Farragut Assoc. v. Sawyer, 119 Misc.2d 712, 715, 464 3 While a Housing Court judgment is appealable, a judgment from an Article 78 proceeding is also appealable. -23- N.Y.S.2d 346, 349 (Civ. Ct. N.Y. County 1983) (tenant's repeated failure to pay rent on time and repeated issuance of bad checks cannot be cure~);~ also Sharp v. Norwood, 223 A.D.2d 6, 643 N.Y.S.2d 39, 42 (1st Dep•t 1996) ("a nuisance found to be caused by chronic late payment of rent cannot be cured") (citation omitted); Lufkin v. Drago, 126 Misc.2d 177, 179, 481 N.Y.S.2d 850, 852 (Civ. Ct. N.Y. County 1984), aff'd 129 Misc.2d 1108, 498 N.Y.S.2d 334 {App. Term 1st Dept 1985) {no right to cure non-primary residence status). The Housing Authority's Termination of Tenancy Procedures (Exhibit 2 to Answer), adopted pursuant to the consent decree in Escalera, also recognize that some offenses are capable of being cured and others are not. For example, the Procedures specifically spell out the right of a tenant to cure a single breach of Housing Authority rules and regulations, but not a chronic breach of such rules. Similarly, if the charges against the tenant are based upon the actions of a person other than the tenant (the •offender•), the tenant may be able to retain his apartment by showing the offender has moved out permanently, i.e., the tenant may •cure" the problem by getting rid of the offender. But if the tenant is the offender, no such cure is possible. Compare Jones v. New York City Housing Authority, 222 A.D.2d 260, 635 N.Y.S.2d 198 (1st Dep•t 1995), ~denied, 88 N.Y.2d 807, 647 N.Y.S.2d 164 (1996) (tenant allowed others to conduct drug operation from his apartment) with Brown v. Popolizio, 166 A.D.2d 44, 569 N.Y.S.2d 615 (1st Dep't 1991) -24- f (tenants should not be evicted for bad acts of their children who have since left their parents' homes). In sum, b~cause ~g-dealing is not a curable offense, RPAPL § 753(4) should not apply. CONCLUSION In view of the above, the Housing Authority's determination finding Petitioner ineligible to remain in public housing was proper and should be affirmed by this Court. DATED: NEW YORK, NEW YORK February 2~. ~997 Elyse Hilton, of Counsel Respectfully submitted, JEFFREY SCHANBACK, ESQ. Attorney for Respondents- Respondents New York City Housing Authority 75 Park Place New York, New York ~0007 (212) 776-5092 -25- ADDENDUM 3 . ' . ' (.t ' I ~ \ ( ; ~ j ~ ; : i ~ ! :I J'" (,,. Ill fflll'd f>J/ l'llllrlt•,, ,/, ,l/trn•/ltU••· Stall! of N~w York • Hili':.\ ~I·:W'I'O.:\, I'd it;,, ...... ,,,,,,.u,,,, For· 11 ,Jnd~uu•nt l'rrr·-•urrrt to l'ivil l'nwtic•t• l.nw unci l!nh·"· Ar·tit·l,. 78. TilE Ml'!\lt'lf',\1, JIOI'HI~II Ali'I'IIOHI'I'\' I•'OH '1'111-: {'1'1'\' IW \'0~1\ I•:HH. lltwpo ndt• nl-lftw f11!1Uient. BRIEF FOR RESPONDENT. CuAru.r·:s ,) • MAt •r·:r.r.Anu, Attonwy for Ile.slwmit•llt, llfl48 Whito Plains Hoatl, Bl'OIIX, N. Y. 10467 (212) 'I'U 2-2000. "l'aa aaroaTJa OOKPAMY, Jwo., Now York, N. y, 1000'1 ata '18V:..fSG'18 10'1G (6334) d)] RECF.f\IED APR30 197S COURT OF APH.IIa :.tiS llf lld UO TABLE OF CONTENTS, Questions Raised , Statement of Facts • . Argument A public housing authority may evict a tenant of a state-aided project on the ground that the tenant failed or refused to report earned income, where such tenant • Page l 2 is a recipient of monetary welfare assistance 6 The respondent's decision to terminate petitioner's tenancy is supported by substantial evidence • Conclusion • 16 20 I ~ COUwr OF APPEALS, STATE OF NEW YORK. - - - - - - - - - - - - - - - - - - - - - - - - - - - -x IN THE MATTER of The Application of RHEA NEWTON, Petitione~-AppeZZant, for a judgment pursuant to Civil Practice Law and Rules, Article 78, aqainat THE MUNICIPAL HOUSING AUTHORITY FOR THE CITY OF YONKERS, Respondent-Respondent. - - - - - - - - - - - - - - - - - - - - - - ~ - - - - -x BRIEF FOR RESPONDENT, QUESTIONS RAISED. I. Whether a public housing authority may evict a tenant of a state-aided public housing project on the ground that the tenant failed or refused to report earned income, where such tenant is a recipient of monetary wel- fare assistance under the Social Services Law? II. Whether the Respondent's decision to terminate the tenancy of the Appellant was supported by substantial evidence? \. :, i ; 2 STATEMENT OF FACTS. 'l'he respondent (hereinafter "MilA") is a public corpor·ation organized pursuant to the New York State Constitution, the New York Public Housing Law, and Title 9 (c) of the official compilation of Codes, Rules and Regulations of the State of New York. It owns ten public housing projects and with the exception of Cot- tage Place Gardens, it receives funds from municipal, state and federal goverrnental sources. Cottage Place Gardens is funded solely from state sources. On January 5, 1969, the MHA received an application for housing from RHEA NEWTON, the petitioner herein (hereinafter "tenant"). On said application, the tenant stated she had no other income besides that received as public assistance, a fact she reiterated upon being interviewed on April 24, 1969 by Mrs. Theresa Dalton, Project Manager for the MHA. On March 15, 1971, the tenant began employment with Daitch-Shopwell, 25 Warburton Avenue, Yonkers, New York, which employment lasted until June 19, 1971. During that period she earned $436.00. On March 26, 1971, the tenant was again interviewed by Mrs. Margaret Hughes of the MHA and again stated she had no other income besides public assistance. On that same day she entered into a written lease for an apartment in Cottage Place Gardens with 3 the MilA and had every provision, especially paragraph 10 thereof, explained to her. Paragraph 10 reads as follows: "The Tenant hereby alicable to the instant case: ••• Had b(! truthfully rwealed his income, he would have been required for several years to pay a~onthly rent at a much higher rate. L 4 Misc. 2d at p. 182] In New Ytlrk City Housing Authority v. Shedlet11ky, 44 Misc. 2d 338 (Civil Court 1964), cited on pp. 11-12 of respondent's brief, the tenant was bound by a resolution of the New York City Housing Authority which provided "••• that if the tenant failed to report income or other information, or misrepresented or concealed his correct income, he should be required to pay a surcharge •• , 11 L-44 Misc. 2d at 339_7. Whereas this New York City Hous- ing Authority resolution is not applicable in the instant case, such a resolution, if applicable, would not be favorable to the respondent herein, because the penalty for violating the resolution is the payment of a surcharge. In the instant proceeding, the petitioner could not be required to pay such a surcharge, since she was already paying the rent set by the appropriate regulations for welfare recipients in her two bedroom apartment. • -3- As noted on p. 9 of respondent's bdef, :.:N.;::;.!~\~"-Y.:.c;.;.;'l.Z~.!;ttv Housing 1\uthority v. Stern, 3 t-U.sc. 2d 100'1 (Mun. Ct. 1956) was an action grounded in fraud and deceit. \ The court found sufficient evidence that the tenants had falsified their financial statements to justify judg- ment for the housing authority and decided that the Authority's "maximum" rent charge was a just measure of damages. There is no indication, however, that the tenants in Stern were welfare recipients. No such judgment could be granted against welfare recipients who pay the rent required in 9 N.Y.C.R.R. Bl627-2.6(c)(5)(i). CONCLUSION Indeed, Greenbaum, Shedletsky and Stern, supra, did not construe 9 N.Y.C.R.R. 81627-2.6(c)(5)(i), and they have no bearing on appellant's contention that a welfare recipient may not be evicted for failing to comply with income review rules of respondent. • -4- Respectfully submitted, The Legal Aid Society of West- chester County Edmund Byrnes, Esq., of Counsel John T. Hand, Esq., of Counsel Attorneys for Appellant Office and P.O.Address: 138 South ~roadway Yonkers, New York 10701 Tel. No. (914) 423-0700 ADDENDUM 6 To Be Argued By: Nadja Schulz New York County Clerk's Index No. 402384/07 J- /0- r:) {59 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION -FIRST DEPARTMENT In the Matter of the Application of PAT BLAND, Petitioner-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- NEW YORK CITY HOUSING AUTHORITY, Respondent-Appellant. RESPONDENT-APPELLANT'S BRIEF SONY AM. KALOY ANIDES, ·Acting General Counsel Nadja Schulz, Of Counsel New York City Housing Authority 250 Broadway, 9th Floor New York, NY l 0007 (212) 776-5016 Attorney for Respondent-Appellant Reproduced on Recycled Paper TABLE OF CONTENTS PRELIMINARY STATEMENT .......................................................................... I QUESTION PRESENTED ........ :· .................. , ............. · ......................................... 5 STATEMENT OF FACTS .................................................................................. 5 The Parties ...... , ........................................................................................... 5 The Housing-Act ................... · ...................... ; .... : ....................................... : .. 6 ·Termination Procedures ........................................... ; .... : ............................ 8 The Housing Authority's Discovery ofPetition,er's Fraud ....................... 9 The Housing Authority's Termination Proceedings . Against Petitioner ........................ .-........................................................... 11 P ... ' H . . . . 11 .. et1t10ner s . earmg ............... , ................................................................ . The Housing Authority's Decision ................. , .................................... : ... 16 Proceedings.Below ........ : ................... : ..... : ......... : .......... : ......•................... 17' : This Appeal .......................... · .. : ................... ; .................... : ........................ 17 ARGUMENT ....... · .............................................................................................. 18 THIS COURT SHOULD VACATE THE SUPRENIE COURT'S ORDER ............................................................. 18 A. The Order Conflicts with Appellate Precedent a Court Has no Interest-of-Justice Jurisdiction in Reviewing an Administrative Determination ............................ 18 I B. The Order Conflicts with Appellate Precedent a Public Housing Lease Is an Enforceable Contract.. ...................... 22 C. · The Order Conflicts with Appellate Precedent Futile Proceedings Should Not Be Required ................................ 23 D. The Order Conflicts with Appellate Precedent . The Housing Authority Has No Responsibility to Appoint Colinsel ........................ , ................................ , .................. 25 E. The Order Circumvents the Well-Settled Law Judicial Review Is Limited to the Record Adduced Before the· Agency .................. ; ... : .................................. 27 CONCLUSION .................................................................................................. 29 I I • I i : .11 TABLE OF AUTHORITIES Federal Cases Escalera v. New York City Hous. Auth., 425 F.2d 853 (2d Cir. .1970), cert. denied, 400 U.S. 853 (1970), consent decree on remand docketed · Page(s) March 25, 1971, Case No. 67-CV-4307 (S.D.N.Y. 1971) (Mansfield, J.) .......... 8 Mathews v. Eldridge, 424 U.S. 319 (1976) ................................................. 25-26 Tyson-Randolph v. New York CityHous .. Auth., Case No. 74-CV-1856 (S.D.N.Y. 1975) (Metzner, 1) ............. ~ ................................................................. 8 State Cases 300 Graniatan Ave. Assocs. v. State Div. of Human Rights, . 45 N.Y.2d 176 (1978) ··•···~·····················.······•····························· .. : .................... 19 Abdil v. Martinez, 307 A.D.2d 238 (1st Dep't 2003) ....................................... 22 ·. Ahsafv. Nyg~ist, 37 N.Y.2d 182 (1975) .......................................................... 20 Barnhill v~ New York CityHous.Auth.; 280 A.D.2d 339 (1st Dep't 2001) .... 23 Bronx-Lebanon Special Care Ctr. v. DeBuonQ, · .. 269 A.D.2d 195 (1st Dep't 2000) ...... ~ .....•... ~ ..................................................... 21 County of Monroe v Kiiladjian; 83 N.Y.2d 185 (1994) .................................... 21 . , Elcor Health Servs. v. Novello, 295 A.D.2d 772(3d Dep't 2002), aff'd, IOON.Y.2d 273 (2003) ........................................................................... 21 . . . . . . . . . Faison v. New York City Hous. Auth., 283 A.D.2d 353 (l5t Dep't 2001) ...... 26 Featherstone v. Franco, 95 N.Y.2d 550 (2000) ...................................... 18, 27-28 iii State Cases (Continued) Folks v. New York City Hous. Auth., 27 A.D.3d 270 (1st Dt~p't), appeal denied, 7 N.Y.3d 709 (2006) ................................................................. 26 Howard v. Wyman, 28 N.Y.2d 434 (1971) ....................................................... 19 Jimenez v. Popolizio, 180 A.D.2d 590 (1st Dep't 1992) .................................. 28 Marzec v. DeBuono, 95 N. Y.2d 262 (2000) ..................................................... 20 McFarlane v. New York City Hous. Auth._, 9 A.D.3d 289 (1st Dep't 2004) .... 22 New York City Hous. 'Auth. v. Jolmson, 148 Misc. 2d 385 (App. Term 1st Dep't 1990) ..... ; ......................... : .............................................. 26 Peconic Bay Broadcasting Corp. v. Bd. of Appeals, 99 A.D.2d 773 (2d Dep't 1984) ; ....................................................... ~ ............... 20 Pell v. Board ofEduc., 34 N.Y.2d 222 (1974) .................................................. 19 Purdy v. Kreisberg, 47 N.Y.2d. 354 (1979) ....................................................... 19 Rodriguez·v. Perales, 86 N.Y.2d 361 (1995) .................................................... 20 Salvati v. Eimicke, 72 N.Y.2d 784 (1988) ................................................... 20-21 Sanchez v. Popolizio, 156 A.D.2d 210 (1st Dep't 1989) .................................. 23 Seittelman v Sabol, 91 N.Y.2d 618 (1998) ....................................................... 20 Smalls v. New York City Hous. Auth., 25 A.D.3d 478 (1st Dep't 2006) ........ 27 Torres v. New York City Hous. Auth., 40 A.D.3d 328 (1st Dep't 2007) .... 27-28 IV ' . ' . ' Page(s) State Cases (Continued) , , Vaynshelbaum v. Dowling. 237 A.D.2d 132 (1st Dep't 1997) ........................ 28 Walker v. Franco, 275 A.D.2d 627 (1st Dep't 2000) ....................................... 19 Wooten v. Finkle, 285 A.D.2d 407 (1st Dep't 2001) ....................................... 18 ·Federal Statutes and Regulations 24 C.P.R.§ 5.230(c) ............................................................................................ 6 24 C.P.R. § 960.259(a) ......................................................................................... 6 24 C.P.R. § 966.4(1)(2)(iii)(C) ............................................................................ 7 42 u.s.c. § 1437 .................................................................................................. 6 State Statutes and Treatises . · CPLR § 222l(d)(2) ...................................................................................... 24-25 CPLR § 222l{e)(2)-(3) ...................................................................................... 25 'N.Y. Penal Law§ 155.25 ................................................................................... 10 N.Y. Pub. Hous. Law§ 3(2) ................. · ............................................................... 5 N.Y. Pub. Hous. Law§ 37(1)(w) ................... : .................................................... 5 N.Y. Pub. Hous. Law§ 156 ................................................................................. 5 N.Y. Pub. Hous. Law§ 401 ................................................................................. 5 v PRELIMINARY STATIC ME NT Petitioner-Respondent Pat Bland ("Petitioner") commenced this Article 78 proceeding to vacate the determination of Respondent New York City Housing Authority ("Housing Authority") terminating her tenancy, after an administrative hearing, for admittedly defrauding the Housing Authority of more than $30,000 by failing to report her employment income with the New York City Board of Education on annual income affidavits she submitted to the Housing Authority for at least a five-year period, thereby obtaining an artificially low rent and housing subsidies to which she was not entitled. By Order, dated March 14, 2008, the Honorable Paul G. Feinman, Supreme Court of the State ofNew York, New York County, remanded the matter to the Housing Authority "for a de novo hearing before a different hearing officer on the issue of penalty" and further directed "petitioner shall be accorded a full opportunity with counsel to put mitigation evidence before the hearing officer." The Housing Authority appeals the Order with leave of this Court. As discussed more fully below, this Court should vacate the Order because it conflicts with the holdings of the Court of Appeals and other appellate courts that a reviewing court has no interest-ofjustice jurisdiction to disturb a rational agency determination. Although the Supreme Court 1 I ' , I recognized "(t]here is no doubt that petitioner's failure to make full disclosure of all sources of income is supported by the record and violates the respondent's rules and regulations," it nonetheless remanded the matter to the Housing Authority on the basis that "justice must be tempered with mercy." The Housing Authority is in the best position to detem1ine which penalty is appropriate under its Termination Procedures in a given case, and there is no basis for disturbing the Housing Authority's decision to terminate Petitioner's · tenancy, which is supported by, among other things, her guilty plea to petit larceny, her admission in criminal co~lrt she had stolen more than $30,000 from the Housing Authority, and her admission of her criminal misconduct at her administrative hearing. The Order further conflicts with appellate court precedent that a public Iwusing lease is an enforceable contract. Like the written~consent reqqirement for adding new household members in the lease, which this Court has long upheld, the lease provision requiring tenants to accurately report household income is also enforceable as a matter of contract law and is consistent with federal regulations. This Court should also vacate the Order because it conflicts with appellate precedent that futile proceedings should not be required. The Supreme Court remanded to the Housing Authority even though Petitioner 2 . already had the opportunity to present, and did present, evidence concerning the restitution and probation requirements of her crhninal sentence, her participation in a work experience program, and her son's medical condition, and the hearing officer considered this evidence in reaching her decision. The . additional "mitigatiot1" evidence the Supreme Court suggested Petitioner and ·her counsel explore on remand does not warrant anything less than termination for several reasons. · First, the Supreme Court's suggestion that Petitioner may have stopped '. defrauding the Housing Authority in 2004 because the charges did not include 2004 and 2005 in no way undercuts the propriety of the Housing Authority's determination because it is unrefuted that Petitioner defrauded the Housing Authority for at least five years, and once a fraud is committed, the fraudfeasor cannot cure it simply by repaying the fraudulently obtained benefit. The record also indicates that the Housing Authority amended its charges to omit the years 2004 and 2005 only because the affidavits for those years were unavailable, not because Petitioner stopped defrauding the Housing Authority. Second, evidence of Petitioner's alleged employment history with autistic children is irrelevant to the issue of whether the Housing Authority properly terminated Petitioner's tenancy. Indeed, it is ironic for the Supreme Court to suggest that the nature of Petitioner's duties and the quality of her performance in the very 3 job for which she failed to report her income could somehow excuse her fraud. Third, evidence of Petitioner's purported "good character" would also carry minimal weight because 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. The Order also conflicts with appellate precedent that the Housing Authority has no responsibility to appoint counsel. The Supreme Court's suggestion remand is appropriate because Petitioner now has counsel ignores that the Housing Authority had already afforded Petitioner ample opportunity to defend against the administrative charges and to secure counsel, and due process requires nothing more. This Court should also reverse the Supreme Court's Order because it circumvents the well-settled law judicial review is limited to the record adduced before the agency. The Housing Authority afforded Petitioner a full administrative hearing before an impartial hearing officer, at which she had ample opportunity to present and did, in fact, present mitigation evidence. Under these circumstances, the Supreme Court's suggestion Petitioner · introduce additional "mitigation" evidence on remand contravenes appellate precedent that a party cannot assert evidence for the first time on appeal. 4 i . QUESTION PRESENTED Did the Supreme Court err when it remanded the matter to the Housing Authority for further proceedings on the issue of penalty before a different hearing officer when the Housing Authority already had afforded Petitioner a full administrative hearing before an impartial hearing officer, at which she had ample opportunity to present, and did present, mitigation evidence and the Housing Authority provided her ample opportunity to secure counsel? The Housing Authority submits the Supreme Court erred. STATEMENT OF FACTS The Parties The New York State Legislature cr~ated the Housing Authority to provide Safe and decent housing for lower-income families in New York City. See Record ("R") 188 at~ 39; N.Y. Pub. Hous. Law§§ 3(2), 37(I){w), 156, 401. . I Until the Housing Authority terminated her tenancy under the circumstances described below, Petitioner was the lessee of Apartment 3C at 545 Dumont A venue .in Brooklyn, NY, in the Queens bridge ,South Houses development. SeeR 188 at 'lf 40; R 204-11. 5 The Housing Act The Housing Authority receives funding for its public housing program I from the federal government through the United States Department of Housing and Urban Development ("HUD") and complies with the United States Housing Act and HUD regulations. Se" R 188 at~ 41; 42 U.S.C. §§ 1437 et seq. ("Housing Act"). In determining the rent for individual units, federal law mandates that "(t]he Secretary [ofHUD] shall establish procedures which are appropriate and necessary to assure that income data provided to public housing agencies and owners by families applying for or receiving assistance under this section is complete and accurate." R 188 at~ 42; 42 U.S.C. § 143 7f(k). Accordingly, federal regulations require tenant t"iunilies (which are generally required to pay 30% of their total household income in rent) to "supply any information requested by [the Housing Authority] or HUD for use in a regularly scheduled reexamination or interim reexamination offamily income and composition in accordance with HUD requirements." 24 C.F.R. § 960.259(a). HUD then requires.the Housing Authority to obtain verification from third parties of household income. See 24 C.F.R. § 5.230(c). To facilitate the Housing Authority's verification of tenant income, tenants are required to sign releases permitting the Housing Authority to contact various sources, including State Wage Information Collection Agencies, to verifY the information reported in annual income affidavits. Se~ R 189 at ,!43. The Housing Authority incorporated these federally-mandated obligations in Petitioner's lease, which required her to comply with the annual recertification process (seeR 189 at ,145; R 206-208 at ,1416, 12(t) & (u); R 510-515 at ~1i 6, 7, 12(t) & (u)), and to "accurateLy repott a[ny] change in income within 30 days after the event" (see R 189 at 4!45; R 205-206 at~ 6(b ); R 509-511 at~~ 6(b ), 7( d). Petitioner's lease further provided for termination in the event she violated the obligations set forth therein, including the obligation to accurately report her income on annual recertification forms. See R 189 at~ 45; R 208 at,[~ 12(t) & (u); R 210 at ~!19(a)(i); R 511 at ,i 7; R 514 at 1]~ 12(t) & (u); R'518 at~ 19(a)(i). This provision is consistent with federal : '' regulations that provide a public housing lease may be terminated for "material false statements or fraud by the tenant in connection with ... reexamination of income." R 189 at ,144; 24 C.F.R. § 966.4(1)(2)(iii)(C). On the certification statement directly above the signature line on its income affidavits, the Housing Authority explicitly wams tenants that "false statements or information" are "grounds for termination of tenancy." SeeR 189 at~ 44; R 224, 226, 230, 239, 247. 7 1,-' I Termination Procedures The Housing Authority takes administrative action to terminate the tenancies of those who violate their leases and the rules and regulations governing their tenancies by, among other things, failing to report all income fully and accurately, as required in the annual rece1tification process. The Housing Authority's Termination of Tenancy Procedures ("Termination Procedures") follow the due process requirements set forth in the consent decrees in· Escalera v. New York City Hous. Auth., 425 F.2d 853 (2d Cir. 1970), cert. denied, 400 U.S. 853 (H170), consent decree on remand docketed . March 25, 1971, Case No.·67-CV-4307 (S.D.N.Y. 1971) (Mansfield, J.); and in Tyson-Randolph v. New York City Hous. Auth., Case No. 74-CV-1856 (S.D.N.Y. 1975) (Metzner, J.). SeeR 190 at~ 46; R 212-16. The Termination Procedures authorize termination. of tenancy for, among other things,non-desirability, breach of rules and regulations, non-verifiable income, and misrepresentation of income. SeeR 190 at 4!47; R 213 at 4!4ll(A), (B), (E) & (G). Under the Termination Procedures, the Housing Authority initiates administrative proceedings to terminate the tenancies of those, like Petitioner, . who violate their tenant obligations. The Housing Authority prepares and mails to the tenant a notice and specification of charges setting forth the date fixed for 8 a full evidentiary hearing before an impartial hearing officer. The hearing notice informs the tenant that "a recommendation has been made to terminate your tenancy," references the attached specification of charges and Termination Procedures, and cautions the tenant that the "determination based thereon proceedings may result in your eviction." The notice further informs the tenant of the right to appear with an attorney or other representative, and to present witnesses and documents in her defense. After the hearing, the hearing officer prepares a written decision, which is subject to the review and approval of the Housing Authority's Board. SeeR 190-191 at '1!48; R 217-21; see also R 213-15 at '1!'1!4, 9, 11. The Housing Authority's Discovery of Petitioner's Fraud Between 1998 and 2005, Petitioner reported to the Housing Authority on her annual income affidavits that she was a part-time employee of"Rug Rats Day Care Center," operated by her sister, further reporting that she earned only a nominal income of a few thousand dollars per year, SeeR 191 at '1!49; R223-55. In 2005, Louis Vega ("Vega"), a Special Investigator with the Housing· Authority's Offic.e of the Inspector General, conducted a computer search in the Enterprise Income Verification system ("EIV"), which allows a comparison of a tenant's employment inc~me, as reported to the Housing Authority during the 9 annual recertification process, with State tax records. Vega discovered that, . . although Petitioner reported to the Housing Authority that she had been ·working for her sister for a nominal income of a few thousand dollars per year, she was actually a full-time employee of the New York City Board of Education and bad been earning "J1 annual salary of between approximately $25,000 and $30,000per year. Vega then requested, and obtained, Petitioner's W-2 foims for 1998 through 2004 from the New York City Office of Payroll Administration. SeeR 191 at 'If 50; R 256-63. Based upon Petitioner's actual income between 1998 through 2005, the Housing Authority determined that Petitioner owed more than $32,000 in back rent. See R 192 at 'If 51; R 264-66. The police subsequently arrested Petitioner and charged her with stealing more than $30,000 from the Housing Authority. SeeR 192 at 'l[52; R 269-70. In criminal court, Petitioner expliCitly .admitted she had "stolen" more than $30,000 from the Housing Authority by failing to report her actual employer and income on her annual income affidavits during the period from approximately May 1, 1998 to March 31,2005. She pleaded guilty to petit ·larceny, an "A" misdemeanor (see N.Y. Penal Law§ 155.25); agreed to repay the Housing Authority more than $30;000; and the criminal court sentenced her · to three years' probation. SeeR 192 at 'If 53; R 271-89. 10 '; The Housing Authority's Termination Proceedings Against Petitioner · In May 2006, management sent Petitioner a letter scheduling an . appointment to discuss the possible termination of her tenancy based upon her fraud. At that meeting, management informed Petitioner the Housing Authority would initiate termination proceedings against her. See R 192 at 'lf 54; R 290-91. By notice and specification of charges, dated August 8, 2006, the Housing Authority informed Petitioner it was seeking to terminate. her tenancy because she filed false income affidavits from. 1998 through 2005 that failed to disclose her employment with, and income from, theBoard of Education. Her · hearing was initially scheduled for September 27, 2006; SeeR 193 at 'lJ 55; R217-21. .Petitioner's Hearing On October 4, 2006, nearly two months after ~e Housing Authority served Petitioner with charges and notified her of her right to counsel or another representative, the parties appeared before the hearing officer~ See R 193 at 'lf 56. Petitioner requested more time to seek counsel and the hearing officer granted her request. The hearing officer then· gave her a list of free legal service ' providers in Brooklyn and infonned her of her due process rights, and Petitioner 11 signed a stipulation adjourning the proceeding to the mutually-agreed-upon date of December 7, 2006. SeeR 193 at~ 56; R 222; R 292-10. Over two months later, on December 7, 2006, Petitioner stated she had bee~ unable to secure counsel but was ready to proceed with her hearing. See . R 193-94 at~ 57; R 315. The hearing. officer asked Petitioner whether she was admitting or denying the five charges, all of which involved Petitioner's filing of false income affidavits from I 998 through 2005 that concealed her income. Petitioner admitted the charges pertaining to non-desirability, misrepresentation, and breach of rules and regulations based on her failure to pay additional rent due to her misrepresentation, but denied that her misconduct · also constituted non-verifiable income and breach of rules and regulations based on her failure to disclose her income. Despite Petitioner's ~dmissions, the hearing officer instructed the Housing Authority to present its evidence on all of the charg~s. The hearing officer then explained to Petitioner she could object to anything she wished in the Housing Authority's case, ask questions at any time, and present her witnesses and documents after the Housing Authority had completed its case. SeeR 193-94 at~ 57; R317-23. The Housing Authority called Housing Assistant Ronald Gibbs ("Gibbs"); who explained he was responsible for overseeing Petitioner's tenant account. Through Gibbs, who had compared Petitioner's signatures in the 12 tenant folder, the Housing Authority introduced Petitioner's lease, which reflected, among other things, Petitioner's obligation to "furnish such information, certification or signed statement .... regarding the income ... of his/her/their household necessary to determine the rent." R 194 at~ 58; R 325-28; R 511 at '1)7(a). · The Housing Authority next called Special Investigator Vega of the ' Housing Authority's Office of the Inspector General. Vega explained the Housing Authority had discovered Petitioner's fraud through a computer check of the EIV database, which allows a comparison of employment income fTom State tax records with the income reported by the Housing Authority tenants. Vega's EIV search revealed that Petitioner had been employed by the Board of· Education, which he confirmed by obtaining Petitioner's W-2 forms for 1998 through 2004 from the New York qty Office of Payroll Administration. See R 194 at '1)59; R 256-63; R 329-34. Vega then compared Petitioner's W-2 forms with the annual income affidavits she had filed with the Housing Authority, which demonstrated Petitioner had failed to report her employment with the Board of Education to the Housing Authority. Because Vega did not bring Petitioner's income affidavits for 2004 and 2005, the Housing Authority amended its charges- which covered the period from 1998 through 2005 -to reflect the period from 13 I 1998 through 2003 and then introduced the relevant income affidavits into evidence. SeeR 194 at~ 60; R 223-55; R 334-38. Vega explained that, after he had continned Petitioner's fraud, the police arrested Petitioner and charged her with larceny. She subsequently pleaded guilty, admitting in criminal court she stole more than $30,000 tl·om the Housing Authority, and agr~ed -.as a condition of avoiding a one-year jail sentence- to repay the stolen money to the Housing Authority. Petitioner declined the hearing officer's invitation to cross-examine Vega. SeeR 194-95 at 'If 61; R 271-89; R 339-42. Petitioner ~astified "I do admit, I did what I did, but I had a lot of outstanding bills" to pay but she did not specify the nature of the ''outstanding ' bills." ,S~ R 343. Petitioner then claimed she had been complying with the conditions of her criminal probation, including making $75 per month restitution payments to the Housing Authority; stated her son had "ADHD"; and asserted she was granted a "temporary" certificate of relief from civil· disabilities to facilitate obtaining new employment.' Petitioner introduced the following documents: (l}the temporary certificate of release from civil 1 A certificate of relief from civil disabilities limits the ability of an employer or licensing agency to deny employment or licensure to an individual convicted. of a crime. Sec R 195, fn. 4; N.Y. Correc. Law§§ 752 & 753. The Corrections Law does not, however, address the rental of apartments or the termination of federal benefits, which are governed by federal regulations. SeeR 195, fn. 4; 24 C.F.R. § 966.4(1)(2)(iii)(C) (authorizing the termination of public housing leases for "material false statements or fraud by the tenant in connection with · ... reexamination ofincome." ). 14 disabilities, dated October 23, 2006; (2) the judgment and order of restitution; (3) the conditions ofher.probation; (4) receipts confirming her $75 monthly restitution payments; (4) receipts confirming she had reported to probation each month; (5) a Work Experience Program notice confirming she had rep011ed as directed; and (6) a doctor's report indicating her son, Jordan Newman ("Newman"), had been diagnosed with ADHD. SeeR 195 at ,162; R 342-57; ~also R 364-84. Citing the many years of false affidavits Petitioner had filed and the impact of this fraud on the Housing Authority in closing, the Housing Authority asked for termination of tenancy. In closing, Petitioner stated: "I admit that l did falsify the records, and it's five years or more, but I am willing to pay the money back, and I thought I was gonna get my job back after all this." R 358. She then asked the hearing officer not to terminate her tenancy, claiming she hoped to repay the Housing Authority by obtaining new employment and citing her son's need for a stable home. SeeR 196 at~ 63; R 358-59. The hearing officer informed Petitioner she would issue a decision that would be mailed to her and then reviewed by the Housing Authority's Board, · further explaining the procedure for challenging any adverse detennination in an Article 78 proceeding commenced within four months thereafter. The 15 .) hearing officer then confirmed that Petitioner had no more questions and . concluded the hearing. SeeR 196 at~ 64; R 359-63. The Housing Authority's Decision By Decision, dated February 1, 2007, the hearing officer sustained the charges and determined Petitioner's tenancy should be terminated, noting that Petitioner admitted her failure to report her income to the Housing Authority. In reaching this determination,' the hearing officer acknowledged Petitioner's claims that her seven-year-old son was learning·disabled and receiving special · education, and that she had been making re~titution payments in accordance with the terms of her criminal probation. The hearing officer found that this was an insufficient basis for allowing Petitioner to remain in public housing, explaining: The tenant failed to report years of employment income as required of all public housing tenants. The tenant admitted she defrauded the [Housing] Authority and stole subsidies in the sum of $30,230 . . . By defrauding the [Housing] Authority and willfully concealing her income for numerous years the tenant's egregious conduct warrant[s] the ultimate sanction sought herein by the [Housing] Authority. R 196-97 at~ 65; R 388. By Determination of Status, dated February 21, 2007, the Housing Authority's Board adoptt;~d the hearing officer's findings and recommendation . ··' and terminated Petitioner's tenancy. ~ee R 197 at~ 66; R 390. 16 .. Proceedings Below . In or about April2007, Petitioner commenced this Article 78 proceeding to challenge the Housing Authority's Board's administrative determination to terminate her tenancy. SeeR 703-44. · In its Order, the Supreme Court found that "[t]here is no doubt that petitioner's failure to make full disclosure of all sources of income is supported· by the record and violates the respondent's rules and regulations." R 1.1. It nevertheless remanded to the Housing Authority for· a de novo hearing on the issue of penalty so ·that Petitioner, now represented by counsel, could have another opportunity to produce "mitigation" evidence. The Supreme Court elaborated that "mitigation" evidence would include: whc;;ther • Petitioner finally ceased her fraud after several years and whether she had an exemplary employment record at her job with autistic children for which she failed to report her income. SeeR 12. The Supreme Court further opined that "[s]urely justice must be tempered with mercy." R 13. This Appeal By motion returnable on November 20, 2008, the Housing Authority sought leave to appeal to this CoUrt. See R 156-81. Petitioner opposed the Housing Authority's motion and cross-mo.ved for leave to appeal claims allegedly raised in the Article 78 petition but not decided by the Supreme Court. SeeR 34-155. The Housing Authority then filed and served an affidavit in 17 further support of its motion and in opposition to Petitioner's cross-motion. See R 18-33. By Order, dated January 12,2009, this Court granted the Housing Authority's motion and Petitioner's cross-motion. SeeR 4. ARGUMENT · THIS COURT SHOULD VACATE THE SUPREME COURT'S ORDER A. The Order Conflicts with Appellate Precedent a Court Has no Interest-of-Justice Jurisdiction in Reviewing an Administrative Determination The Supreme Court ignored appellate precedent that courts have no int .·est-of-justice jurisdiction to review a final agency determination by . remanding the matter to the Housing Authority even though she admittedly defrauded the Housing Authority on the ground "justi~;e must be tempered with mercy." R l3. It is well-settled that a reviewing court lacks any interest-ofc justice jurisdiction to substitute its preferred result for a rational agency determination. See Featherstone v. Franco, 95 N.Y.2d 550, 554 (2000) ("the Appellate Division lacks any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed by" the Authority."); Wooten v. Finkle, 285 A.D.2d 407, 408-09 (1st Dep't 2001) ("While we acknowledge that . hardship will result from the eviction of petitioner and the children who live with her, this Court has no discretionary authority or interest of justice jurisdiction inreviewirig the penalty imposed.") (internal quotation and citation 18 omitted). Instead, an agency's determination withstands judicial scrutiny if it is rational and supported by substantial evidence. See Pel! v. Board ofEduc., 34 N.Y.:.:.d 222,231 (1974); 300 GramatanAve. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176 (1978). Where there is a rational basis to support the finding and conclusions of an administrative agency, a court may not substitute its judgment for that ofthe agency. See Purdy v. Kreisberg, 47 N.Y.2d 354, 358 (1979); Howard v. Wyman, 28 N.Y.2d 434,438 (1971). "The decision need not be the best which could have been made and need not be free from flaws- it must only have a rational basis." Walker v. Franco, 275 A.D.2d 627, 628 (lst Dep't 2000) (citation omitted). For a reviewing court to overturn a penalty imposed by an administrative agency, the punishment must be "so disproportionate to the offense as to be shocking to one's sense offaimess," Pell, 34 N.Y.2d at 237; see also Featherstone, 95 N.Y.2d at 554 ("[administrative] sanction must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of . discretion as a matter oflaw . . . . Annulment and remittal to the [Housing] Authority for reconsideration of the sanction would be appropriate only if the · penalty violated the rigorous Pell standard"). When examining the appropriateness of a particular penalty, "reviewing courts are not empowered to substitute their own judgment or discretion for that of an administrative agency 19 merely because they are of the opinion that a better solution could thereby be obtained." Peconic Bay Broadcasting Corp. v. Bd. of A~ais, 99 A.D.2d 773, 774 (2d Dep't I 984). "[R]espect and weight are to be accorded the determination made by the agency charged with responsibility for fixing the penalt-y or discipline because ofthe special capability, competence and experience of that agency and in consequence of the confidence in it implicit in the legislative grant of authority and responsibility to it.,., Ahsaf v. Nyquist, . . 37 N.Y.2d 182, 184 (1975). Moreover, a government agency's interpretation of its own guidelines is . I entitled to deference and must be upheld unless the determination is "irrational and unreasonable." See Marzec v~ DeBuono, 95 N.Y.2d262, 266 (2000); Seittelman v. Sabol, 91 N.Y.2d 618, 625 (1998). Courts will defer to an agency's interpretation of its regulations and determinations where that jnterpretation is not irrational or contrary to statute, even if a different conclusion might be reached on the same evidence. See Rodriguez v. Perales, 86 N.Y.2d 361, 367{1995) ("As the agency charged with administering and enforcing the SSI [Supplemental Security Income] program, HHS [Health and . Human Services] is entitied to considerable deference in its construction and application ofthe program's enabling legislation."); Salvati v. Eimicke, 72 N.Y.2d 784, 791 (1988) ("DHCR's interpretation of the statutes it 20 administers, if not unreasonable or irrational, is entitled to deference."); !?ronx- . Lebanon Special Care Ctr. v. DeBuono, 269A.D.2d 195, 196 (1st Dep't 2000) citing County of Monroe v Kaladjian, 83 N.Y.2d 185, 189 (1994); Elcor Health Servs. v. Novello, 295 A.D.2d 772, 774 (3d Dep't 2002), aff'Q, 100 N.Y.2d 273 (2003) (courts will defer to an agency's interpretation of its own regulations if not irrational and the agency's interpretation is not rendered irrational simply ·because the regulation may be susceptible to a different rational interpretation). It is clear the Supreme Court impermissibly seeks to substitute its preferred result for a rational agency determination because it itself acknowledged "[t]here is no doubt that petitioner's failure to make full disclosure of all sources of income is supported by the record and violates the respondent's rules and regulations." R 11. The record establishes Petitioner pleaded guilty to petit larceny, admitting in criminal court she had stolen more than $30,(J00 from the Housing Authority, and she again admitted her criminal misconduct at her hearing when she tes~ified "I do admit, I did what I did." R 271-89; R 343. The Housing Authority is in the best position to determine which penalty is appropriate under its Tel11J,ination Procedures in a given case, . . and there .is no basis for disturbing the Housing Authority's decision to terminate Petitioner's tenancy. 21 B. The Order Conflicts With Appellate Precedent a Pubiic Housing Lease Is an Enforceable Contract . Like the written-consent requirement for adding new household members in the lease, which this Court has long upheld, the lease provision requiring tenants to accurately report household income is also enforceable as a matter of contract law and is consistent with federal regulations. SeeR 188-89 at~~ 41-44; McFarlane v. New York City Hous. Auth., 9 A.D.3d 289 . (1st Dep't 2004) ("Thus petitioners' claims were barred by the terms of the· . contract as well as by the application of federal regulation."); Abdil v. Martinez, 307 A.D.2d 238 (1st Dep't 2003) (explaining the Housing Authority was "contractually entitled" to detennine petitioner was not entitled to a lease as a remaining family member because her father had failed to obtain pe11Uission to add petitioner to the household). The income-reporting obligation enables the Housing Authority to comply with its obligation under federal law to review income, set rent, and ensure tenants remain eligible for the program. The Housing Authority Termination Procedures authorize tennination of tenancy for ·misrepresentation of"any material fact ... bearing upon or relating to the rent to be paid by the tenant." R 213 at~ G. 22 C. . The Order Conflicts with Appellate Precedent· Futile Proceedings Should Not Be Required The Supreme Court contravened appellate precedent by remanding the matter to the Housing Authority and directing exploration of several issues, none of which warrants disturbing the Housing Authority's determination. This Court has held it error for a lower court to require the Housing Authority to . engage in additional pr~ceedings that are futile. See Barnhill v. New York City Hous. Auth., 280 A.D.2d 339 (1st Dep't2001) (error for lower court to remand to the Housing .Authority for new hearing when there was no merit to · . petitioner's children's remaining-family-member claims). Even if the Supreme Court were pemtitted to distUrb the Housing Authority's determination in the interest of justice, which it may not do, none of the issues identified by the Supreme Court warrants annulling the Housing Authority's determination. Therefore, remand in this case would be futile. First, the Supreme Court's suggestion that Petitioner may have stopped defrauding the Housing Authority in 2004 in no way undercuts the propriety of the Housing Authority's determination because it is unrefuted that Petitioner defrauded the Housing Authority for at least five years, and once a fraud is committed, the fraudfeasor cannot cure it simply by repaying the fraudulently obtaim;d benefit. See Sanchez v. Popolizio, 156 A.D.2d 210,210 (lstDep't 1989). Any·cure theory fails on the facts as well as the law. The record . 23 indicates that the Housing Authority amended its charges to omit the years 2004 and 2005 only because the affidavits for those years were unavailable. See R 194 at~ 60; R 334-38. In addition, Petitioner admitted at her hearing and at . . her criminal plea proceeding she misrepresented her income for seven years from 1998 through 2005. SeeR 280; R 317; R 319-20. Second, evidence of Petitioner's alleged employment history with autistic children is not relevant to the issue of whether the Housing Authority properly terminated Petitioner's tenancy. Indeed, it is somewhat ironic for the Supreme Court to suggest that the nature of Petitioner's duties and the quality of her performance in the very job for which she failed .to report her income could somehow excuse her fraud .. Third, evidence of Petitioner's purported."good character" would also carry minimal weight because if Petitioner's personal references were aware of . . . Petitioner'~ illegal activity, their opinions would be entirely unreasonable and, therefore, properly rejected by the hearing officer. Thus, remand would result in delays and inefficiencies in the Housing Authority's administrative process that no court would tolerate in allocating scarce judicial resources to manage its own docket. Indeed, a movant seeking · reconsideration or reargument must meet certain threshold requirements to justify a Court revisiting a judicial order. See,~. CPLR § 222l(d)(2) . 24 I · (requiring a party seeking leave to reargue a motion to identify "matters of fact or law allegedly overlooked or misapprehended by the court in determining the · prior motion") and CPLR § 2221(e)(2)-(3) {requiring a party seeking leave to renew to allege "new facts not offered on the prior motion that would change the prior determination or ... demonstrate that there has been a change in the law that would change the prior determination; and ... [provide] reasonable justification for the failure to present such facts on the prior motion"). ,Accordingly, here the SupremeCourt erred in ordering the Housing Authority to conduct a new hearing to consider so-called mitigation evidence, needlessly protracting thisproceeding, and taxing agency resources. Remand potentially wastes judicial resources as well, as Petitioner may once again attempt to challenge another adverse determination in a new Article 78 proceeding. The Order Conflicts with Appellate . . · Precedent the Housing Authority Has . No Responsibility to Appoint Counsel The Supreme Court's suggestion remand is appropriate because Petitic;mer now has counsel (seeR 13) ("petitioner shall be accorded a full opportunity with counsel to put mitigation evidence before the hearing officer") (emphasis added)), ignores that the Housing Authority had already afforded Petitioner ample opportunity to defend against the administrative charges and to secure ·counsel. Due process requires nothing more: See Mathews v. Eldridge., 25 424 U.S. 319, 333 (1976)(due process affords "the opportunity to be heard 'at a meaningful time and in a meaningful manner."') (citations omitted); Faison y_, · New York City Hous. Auth., 283 A.D.2d 353, 357-58 (1st Dep't 2001) (due process afforded where Housing Authority granted remaining-family-member several adjournments to prepare his case and claimant had opportunity to testify and present witnesses although he failed to do so). The Housing Authority has no obligation to appoint counsel. See Folks v. New York City Hous. Auth., 27 A.D.3d 270,271 (1st Dep't), appeal denied, 7 N.Y.3d 709 (2006)("Nor was petitioner, who was repeatedly advised by respondent of her right to legal representation, deni~d assistance of counsel at the hearing; respondent was not obligated to provide legal representation.") (citing New York City Hous. Auth. v. Johnson, 148 Misc. 2d 385, 387-88 (App. Term 1st Dep't 1990)). Here, the Housing Authority notified Petitioner of her right to counsel with the notice of the administrative hearing approximately two months before the scheduled hearing date. SeeR 218. It then adjourned the hearing and afforded Petitioner an additional two months to retain counseL See R 193 at~~ 55-56; R 298-310. Petitioner should not be afforded yet another opportunity especially when, as discussed above, she has not shown how counsel could change the outcome in light of the record evidence she misrepresented her income for five years. See Johnson, 148 Misc. 2d at 389 26 (affirming denial of tenant's posteviction mot'ion for appointment of counsel; "In short the presence of counsel could not have made a determinative . difference in the outcome of the litigation."). Because Petitioner has received all the process to which she is entitled, no further protraction ofthis summary Article 78 proceeding under the guise of a remand should be tolerated. See. Smalls v. New York City Hous. Auth., 25 A.D.3d 478,479 (lstDep't 2006) (upholding termination of tenancy and rejecting petitioner's argument hearing officer abused his discretion in denying adjournment tor petitioner to obtain counsel where "petitioner had more than sufficient time to secure counsel"). E. The Order Circumvents the Well-Settled Law Judicial Revi.ew Is Limited· to the Record Adduced Before the Agency New York Courts have long held a party may not assert new evidence for the first time on appeal. See Featherstone, 95 N.Y.2d at 554 (holding that "for a court to consider evidentiary submissions as to circumstances after the Authority made its determination would violate another fundamental tenet of CPLR article 78 review- namely, th~t "fj]udicial review of administrative determinations is confined to the 'facts and record adduced before the agency"') (citations omitted); Torres v. New York City Hous. Auth., 40 A.D.3d 328,330 (1st Dep't 2007) (rejecting petitioner's claims raised for the first time on appeal because judicial review of administrative determinations is limited to the facts 27 and record adduced before the agency); Vaynshelbaum v. Dowling, 237 A.D.2d 132, 132 (1st Dep't 1997) ("Also waived for lack of an o~jection at the administrative hearing is petitioner's argument that he did not receive proper notice"); Jimenez v. Popolizio, 180 A.D.2d 590, 592 (1st Dep't 1992) (holding that petitioner's due process claim that proper notice was not served "is unpreserved for appellate review because of the failure to state an objection at the administrative level"). In contravention of this basic principle, the Supreme Court suggested Petitioner introduce additional "mitigation" evidence on remand. As discussed above, the Housing Authority afforded Petitioner a full administrative hearing before an impartial hearing officer at which she had ample opportunity to present and did, in fact, present mitigation evidence. Under these circumstances, remanding for further proceedings contravenes precedent that a party may not raise new evidence on appeal. See Featherstone, 95 N.Y.2d at 554; Torres, 40 A.D.3d at 330; Vaynshelbaum, 237 A.D.2d at 132; Jimenez, 180 A.D.2d at 592. 28 CONCLUSION For the foregoing reasons, this Court should reverse the Supreme ~:ourt's Order and uphold the Housing Authority's determination terminating . Petitioner's tenancy. Dated: New York, NY August 27, 2009 Nancy M. Harnett · Nadja Schulz, Of Counsel TO: Andrew Goldberg, Esq. Bernadette Jentsch, Esq. MFY Legal Services, Inc. 299 Broadway, 41h Floor New York, NY l 0007 (212) 417-3760 SONY AM. KALOYANIDES Acting General Counsel N•w~J: H~'ity- By: Nadja Schulz, Of Coun el 250 Broadway, 9th Floor New York, NY 10007 (212) 776-5016 Attorneys for Respondent-Appellant Attorneys for Petitioner-Respondent 29 PRINTING SPECIFIC.<\ TIONS STATEMENT In compliance with Section 600.10(d)(l)(v) of the Rules of this Court, I hereby certifY this computer generated brief was prepared using Times New Roman proportionally-spaced typeface in 14 point size font (except for footnotes that contain 12 point size font). This brief is double-spaced (except for footnotes). The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum is 6, 140. I have relied on the word count provided by Microsoft Word. · Dated: New York, NY August 27, 2009 ADDENDUM SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST ·DEPARTiviENT --------------------------------------------C----·-----------------]{ In the Matter of the Application of: PAT BLAND, Petitioner-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- NEW YORK CITY HOUSING AUTHORITY, Respondent-Appellant. -----------~--------------------------~----------------c-----------l{ N.Y. Co. Inde]{ No. 402384/07 (F einrnan, J.) STATEMENT PURSUANT TO CPLR. 5531 1. · The indel{ number of the case in the court below is 402384/07. 2. The full names of the original parties are stated above. There has been no change in the parties. 3.. This proceeding was commenced in the Supreme Court, County of New York. 4. Petitioner Pat Bland C'Petitioner") commenced this proceeding by filing of a Notice of Petition and Verified Petition on or about April 16, 2007. Issue was joined by the Verified Answer of Respondent New York City Housing Authority ("Housing Authority"), ·which it served on June 22, 2007. Petitioner serVed the First Amended Verified Petition on or · about September 18, 2007~ The Housing Authority served the Verified Answer to the First Amended Verified Petition on October· 24, 2007. · 5. Petitioner commenced this CPLR Article 78 proceeding to challenge the · determination of the Housing Authority, made after an administrative hearing, terminating her tenancy for admittedly defrauding the Housing Authority of more than $30,000 by failing to . report her employment income with the New York City Board of Education for at least a ! .. ADDENDUM five-year period. Petitioner sought an order and judgment reversing the Housing Authority's determination, dated February 21,2007. 6. This is an appeal from an order of the Supreme Court, County of New York (lAS ·Part 52; Feinman, J) issued on March 14, 2008 and entered on October 23, 2008, remanding the matter to the Housing Authority for further proceedings . . 7. This appeal is on a full record as certified pursuant to CPLR section 2105. Dated: New York, NY August 27,2009 SONYA M. KALOYANIDES Acting General Counsel Nl]r1;:ty Ho?.:Shority Nadja Schulz, Of Counsel . 250 Broadway, 9th Floor New York, NY I 0007 (212) 776-5016 Attorneys for Respondent-Appellant ·' AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK ) : ss .. : COUNTY OF NEW YORK) I, Maria Vigario, being duly sworn, depose and say: I am not a .. party to this proceeding,. I am over EIGHTEEN (18) years of age and I am employed by the New York City Housing Authority at 250 Broadway, New York, New York 10007. On August 28, 2009, I served the within Respondent-Appellant's Brief upon: Andrew Goldberg·, Esq. MFY Legal Services, Inc. 299 Broadway, 4~ Floor New York, New York 10007 by placing two true copies of these papers in a postage paid properly .addressed envelope, addressed as set forth above, and depositing it ~n a receptacle_ under the exclu!'live care and custody of the United States Postal Service within the State of New York .10A-~. ~~~· . Maria Vigario ADDENDUM 7 SUPREME COURT CN THE: STil.Tt: OF NEW ·r.IPf: APPELLATE DIVISION: DWiT l.lEP!l.PTMEII'c' ----------------------------------------~ In the Matter of the Application ot ROSLYN SMITH, Petitioner-Appell~rrl For a Judgment Pursuant to Arti.~~lt~ -~~ Of the Civil Pr~ctice Law and Rules, -against- NEW YORK CITY HOU~ING AUTHORITY, Ec)spondent-Respondr~-;nt'. ----------------------------------------X f'h:~\\1 ·~·-.·) k . 1\!Jl! y Ind•:-':·: N ·. -! 111 '! .. '~/()I-, 't\l_· •. -,,~ t 'I I '1. ' BRIEF OF RESPONDENT-RESPONDENT PRELIMINARY STATEMENT Petitioner-Appellant Roslyn c;rni.U, r"Pet.i.ti.oner"l ap[><.eals from a decision and judgment of rhe :JupremE· Court, N·.·'W 'iut k County (Rolando'!'. Acosta, ,J. I, ddt•,,J [·,larch ti, 2006, dhmissiml her Article 78 petition challenging a determination by tl1~ New York City Housing Authority ("tJYCHA"I to terminate hee T. 127-44. On cross-examination, Grant volunteered she had been on psychiatric disability for the past five years due to "stress" encountered during her 23 years of emr:oloyment as a f~ental Hygiene Therapy Aide at the Manhattan Psychiatric Center. She explained she had been removed from employment because she had been ~empted to hit her supervisor, and had "dream[edl that [she] hit him with 2 baseball bat, and stuffed him under his desk." See T. 144-48. "They told me to go see a psychiatrist . . and tJ.-ley put !Tie out on disability." Grant had "no information about [Petitioner's] relationship with Mr. Brown" prior to when Petitioner moved into the building, which she believed occurred between 2002 and 2005. SeeT. 149-51. 18 Brenda Major ("MajorH) testified she resides at 2653 7 Avenue and used to live in Brown's mother's building 13 or 14 years earlier (~, in 1991 or 19921. Major claimed she regularly saw Brown in the evenings taking the train home and ~n his way to his mother's apartment. She could not remember the last time she saw Brown, nor could she recall any specific dates of when she herself lived in various apartments. She was unav1are of Petitioner's relationship with Brown when she lived in Brown's I mother's building, and did not know they had ever been married. I. See T. 168-83. On cross-examination, Major acknowledged she was "only 1, rr .. the same building with [Petitioner] for a very short period of time,H and had only visited Petitioner at her current apartment "once or twice.H See T. 185-91, 19G. She was unable to state, even approximately, how long she had been a NYCHA resident, and admitted she had "a hard time remembering thingsH since her hospitalization for an unknown injury. See T. 192-97. Chris Johnson i'',Johnsun"), Petiti~ner's fiance, testifi~d ~l~ first met Petitioner in 2003. He first met Brown during the 1980s, when Johnsor1 resided in Whit~ Plains; he met him whil~ visiting Brown's nephew, who was his fr~.end. Johnson could not state when Br~wr. mc~~d from White Plains, t·~t believed Brown lived with his m~:h~r ~~ some point ''befsr~ ~h~ 1980s.H See T. 205-08. Johnson volunteerej that ~~lie~ ~:ad twic~ arrested him ~s ~ result of complaints mad'2- b-_; sr~_..':i:-\. Petitioner had confronted Brown at the tennis courts on development grounds (where Brown works as a tennis instructor) to see if Brown could help them locate Petitioner's son. Brown 1Nas purportedly angry at Petitioner for disrupting him at work, and Johnson "punched [Brown] in the face" and was subsequently arrested. See T. 207. Johnson was again arrested because Brown told police Johnson had threatened him. See T. 21?-20. Petitioner offered a copy of a notarized letter from Johnson, sworn to February 10, 2005, stating Brown was a drug user who had made various false statements against Petitloner. See T. 241; Ans. Exh. 27. At the conclusion of the hearing, the Hearing Officer summarized Petitioner's evidence, which she confirmed vJas "a :air statement of [her] positions." See T. 245-50. Petitie:r:s!: then made her closing argument, mentioning (but not offeri~g into evidence) a five-page letter Brown wrote to her in I~ay 2002 claiming he disclosed her fraud ~G NYCHA because she er1jed their relati8nship. See T. 250-54. decision and explained the procedure for challenging an~· ad~~rs~ Hearing Officer's Decision In a five-page Decision, ;- i.-' "- Officer summarized t.he evidenc-2, s·J.stained the cn?r-:_:.::::-.s, •... recommended termination. motivated by 'lindictiveness and had ~aused P~tition~~ the Hearing Officer concluded that "proofs that [Brown] lived with [Petitioner] proffered by [NYCHA] permit a trier of fact to reach the ultimate conclusion that Tenant did defraud [NYCHA] of rent . . it '>las entitled to collect." See Ans. Exh. 28. Final Determination By Determination dated April 20, 2005, NYCHA's Board adopted the Hearing Officer's findings and terminated Petitioner's tenancy. See Ans. Exh. 29. Article 78 Proceeding By pro se Notice of Petition and Verified Petition, S'>lorn to June 14, 2005 ("Orig. Pet."), Petitioner challenged NYCHA's determination terminating her tenancy as unsupported by the record evidence. She later obtained counsel, and NYCHA agreed to allow her to submit an amended petition. The original petition contains several admissions. For example, the June 11, ?QQS letter attached thereto states: (1) Brown contributed $100 per month to her (notwithstanding her adamant denial of this at the hearing) and asserts that "Brown's contribution shoulrl have been listed as his moral obligation since I wasn't receiving child sqpport until the year 2002''; (2) "I was never asked anything about child suppo~t at hearing''; and (3) ''I have not received a taz refund in ten years. paying for the joint returns which is unfair." I've been The amended petition, sworn to October 12, 2005, claims that NYCHA's determination was arbitrary and capricious, affected by 21 error of law, unsupported by the evidence, and based entirely upon hearsay evidence; that Petitioner was depriucd of her right to counsel; and that NYCHA's investigator and the Hearing Officer engaged in unlawful gender discrimination against Petitioner in violation of the .• ousing Act, the New York ·~it:; i:;dministrativ;o Code, and the State and federal constitutions. :cee l'.menderJ Petition ("Amend. Pet.") at 'IJ'l! 72-83. The amended petition also attaches nurner~us j0curnents never presented at the administrative level, including Scown's May 2002 letter to Petitioner, v1hich apolcg i zes f(.Jr ro::r-:'.:- r ":. i 't'j ~;::::r frau:l -:--.- NYCHA and seeks "some type of arrangement so I ·~n pick up my personal belonging clothing mail etc" (see l".msn.J. tst. Ezh. F) and several documents post-dating the charges, including a 2002 temporary order of protection against Brovin r se~ .L,rnc::w:l. P~t. Exh. H); police reports from December 2003 (see .n..rr~en~J. ?~t. Ezh. I); a 2005 final order of protect ion against Bro;m ( sroc:-~ss sh~ ~·J,j::.· l 1J"':' -:1::! ii 1 n _•': violate any of her rights; that the Hearing ·;~fi ·~r d~p1i~i th~ correct burden of proof c.nd did nrJt disc:rirni Ii~t· -1·-~,11 r1:-_:t Petitioner; that hearsay is admissible in administrative proceedings and may constitute substantial evidence; and that Petitioner failed to state a cause of action. See An3. at 1t1t 96- 103. Decision and Judgment By decision and judgment dated March 6, 2006 ("Decision"), the lower court dismissed the amended petition and upheld NYCHA's determination as rationally based and supported by substantial evidence, finding that: "Petitioner's contention that NYCHA's determination should be vacated to the extent it relies on Brown's letter is unavailing inasmuch as NYCHA did its own independent investigation," explaining that "although Brown's letter was the engine driving NYCHA's proceeding, it was not the only evidence.n See Decision at 6-7. The Decision cites numerous documents admitted into evidence at the administrative hearing demonstrating that Brown resided with Petitioner from 1989 until 2002 - including the police reports, Brown's W-2 statem~nts, and a letter from Brown's employer. The lower court fr~und that "petitioner offered no evidence" to refute these d-:_~r~umo::::nts. See Decisi.on -:3t 3-5. The Decision also notes Petitin~Pr failed to explain how Brown 1:0ul~ have filed joint tax returns withc1Jt her p8rmission and cooperation, or \oJhy she ne·1';r :-_;c:;Jq: t: c:hild support fLam him. :~s-::.- id. at 4. 2 ; The Decision further found that NYCHA did not initiate termination proceedings until after Petitioner r~jected its offer to preserve her tenancy with a repayment plan. See Decision at 4, n.l. Finally, the Decision found that Petitioner had failed "o establish her gender-discrimination claim, noting she had rejected two offers of emergency transfers as a victim of domestir violence and concluding that "NYCHA has provided sufficient proof to satisfy a reasonable person that its decision had ample support in the record." See Decision at 6 n.2 & 7 !citation omictedJ. ARGUMENT POINT I THE LOWER COURT CORRECTLY UPHELD NYCHA'S DETERMINATION TERMINATING PETITIONER'S TENANCY FOR FRAUD AS RATIONAL AND SUPPORTED BY SUBSTANTIAL EVIDENCE The lower court properly upheld termination of PGtiticner's tenancy based upon the evidence adduced at the administrati~~ hear~ng, which establishes that Petitiuner viola·_ed her l~a~e and fedr~raJ lavJ bj defrauding NYCHA out of more than $31,000 ,,·,.rer ~-:~ thi.rt.:::en-Jear period -- ~, for mo~t of her tenan•:J· -- ~ind t-:h~t this fraud ~dS ur1related to her later d0mestic-viol~n~:~ 1ssu~s. A. The Applicable Standard of Review .r..n d'_imini.str3\:i·,r;:; determination 1f-i'ill ·~vithstan•J ju,l:··..:.,Jl scruti:·~~"'- if il has a rational basis an:::i 1s sup[.H)rt>=?d t:·· Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180 (1'178) "[A]s a burden of ~Jroof, [substanti.al evidence] demands onlj that a gi~en inference is reasonable and plausible, not necessarily the most probable." Miller v. DeBuono, 90 N.Y.2d "723, 793 (10971. In resolving substantial- evidence questions, r~viewir1g courts accord considerable deference to the 2redibillty Jeterminations of administrative hearing officers. (19871; Carson v. Ile1-1 ·r'" ~-··/ By: ~- ~- c:::' _,.~.,.,.., Andrew Kol'lPel P 49 PRINTING SPECIFICATION STATEMENT Pursuant to 22 N.Y.C.R.R. § 600.10(d) (1) (v), I, Andrew Koppel, the undersigned counsel for Respondents-Respondents, certify as follows: 1. This brief was prepared using the WordPerfect word- processing program. 2. 3. 4. Dated: The typeface is Courier 12 point. Footnotes and point headings are in compliance with section 600.10(d) (1) (i). The brief contains 11,077 words. New York, New York February 28, 2007 , ..• -.~ : _.,. -<~.' Andrew Koppel I I t AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) Andrew Koppel. being duly sworn, deposes and says: I am not a pat1y to this vroceeding, I am over 18 years of age, and my business address is 250 Broadway. 9th tloor. New York, New York 10007. On February 28,2007, I served the within BRIEF OF RESPONDENT-RESPONDENT by personally delivering two copies to: Harlem Legal Services. Inc. 55 West I 25th Street, lOth floor New York, New York 10027 ATTN: Lenina C. Trinidad and leaving them therein with a receptionist of suitable age and discretion who stated that she was authorized to accer 'te same. Sworn to before me this )'@~ day of February, 2007 ~fJ.A./A-f\J 1-/~J. ~"' Notary Public ROSANNE R. PISEM Notary Publi'O State of New Yorlc No. Oo.PlG07a391 auelltled in Kingij CountY ..., ~o l Comm•sslon Expires 4/211 r" Andrew Koppel ADDENDUM 8 76017 To be Argued by: PETER M. FORMAN Time: 15 Minutes N.ew lnrk ~upr.em.e .m Shaw, sent a letter to the Tenant asking her about Mr. Dross' residency. {R 369) 6 On September 2, 1993 the Landlord received a letter from Michael Cabrera stating that Mr. Dross lived at 179 Main Street in Beacon, (R 370) This was the first time that the address of 179 Main Street had been reported to the Housing Authority as an alleged residence of Mr. Dross. Mr. Shaw attempted to confirm the veracity of this letter by writing to Mr. Cabrera by certified correspondence. (R 371) He did not receive an answer. He sent out a second letter and then placed a telephone call to Mr. Cabrera. Mr. Cabrera would not confirm, in this conversation or in writing, that Mr. Dross had in fact lived at 179 Main Street or was living there at that time, Mr. Shaw attempted to verify Mr. Cabrera's information because a member of the Landlord's staff found what appeared to be an original note, signed by Mr. Cabrera, on the grounds of the Housing Authority shortly after the hand printed note (R3 70) was delivered to the Landlord by the Tenant which allegedly contained Mr. Cabrera's signature. During this period of time, Mr. Dross was observed on repeated occasions by employees of the Landlord coaing and going from the Tenant's apartment in a manner that led the Landlord's staff to believe that he was, in fact, living in this apartment. Steven Pavlovic, the Landlord's maintenance supervisor, happened to live next door to the Tenant at 40 Forrestal Heights. He had resided in that apartment for the past seven (7) years with his family. Mr. Pavolvic testified during the hearing that between May 1, 1993 and April, 1994 he observed Arique Dross coaing and going from the Tenant's apartment on a regular-basis including the late evenings and early mornings, (R 245-247) In addition, Mr. Shaw 7 testified that he also observed Mr. Dross coming and going from the apartment on a regular basis and on October 5, 1993 he sent a letter ta the Tenant warning her not to allow Mr. Dross to board illegally in her apartment until he had completed the application process as required by the Landlord's rules and regulations (R 373). Shortly thereafter, Mr. Shaw informed Mr. Dross that they had not been able to verify his residence and that he was restricted from the property until further notice. (R 254) Mr. Dross continued to appear on the property in flagrant violation of Mr. Shaw's direction and a complaint for criminal trespass was subsequently filed with the Beacon Police Department. Based upon the circumstances, a notice of termination was forwarded to the Tenant on October 19, 1993. (R 293) In December, 1993 members of the staff of the Landlord observed the Tenant leaving her apartment early in the morning in a white uniform and returning in the evening. According to her application for housing, she reported that her income consisted solely of Social Services assistance. There was no indication on this application that she was employed or receiving income'from an employer. An investigation by the Landlord revealed that she was working in the office of a Dr. Slade in Newburgh, New York and correspondence was directed to the doctor's office to confirm her employm~nt. Mr. Shaw also conferred with a representative of the fraud dh·i,;,;.nn of the Department of Social Services in December, 1993 and informed DSS that the Tenant was, in fact, employed. According to this representative, DSS had no prior knowledge that she had been working for Dr. Slade at the time of the phone call fro• Mr. Shaw. 8 On January 7, 1994 the Landlord sent a letter advising her of the results of its investigation into her employment. (R 107) The letter further advised her that she was in violation of her lease and that her rent would be adjusted to the HUD approved fair market rent amount. On March 18, 1994 the Landlord sent an updated notice of termination of lease to the Tenant alleging various violations of her lease agreement including the provision of accommodations to a boarder, to wit, Arique Dross, and the failure to report a change in her income to the Landlord in violation of paragraph 5b of her lease agreement. (R 295) This notice of termim tion was further amended on April 18, 1994 with the addition of a charge that a vehicle had been brought upon the premises that had not been rP~istered with the Housing Authority. (R 297) On April 1, 1994 the Housing Authority received verification from Dr. Slade regarding the Tenant's income during the months of November, 1993 through February, 1994 and on May 16, 1994 a letter was sent to the Tenant adjusting her rent for those four (4) months. (R 109) On May 5, 1994 an informal settlement conference was held with members of the Board of Directors of the Beacon Housing Authority pursuant to paragraph 13 of the lease agreement. The summary of this conference was mailed to the Tenant on May 25, 1994. (R 306) The Tenant then requested an administrative hearing which was held on June 21, 1994 before Hearing Officer Vincent J, Catalano, Esq. This hearing was concluded on that same date after testimony was taken from several witnesses over a five (5) hour period. A decision was rendered by the Hearing Officer,on July 11, 9 1994 sustaining each of the three (3) lease violations that were alleged by the Housing Authority. (R 308) The HearinK Officer found that two (2) of the violations, i.e., providing accommodations to a boarder and failing to report income to the Housing Authority were serious violations of the lease agreement and represented a good cause for terminating the lease with the tenant. A Not1ce of Petition and Petition to evict dated July 15, 1994 was se,~, c.<:! upon the Tenant returnable on Au&ust 2, 1994 in the City of Ce~con City Court. On August 1, 1994 Supreme Court Justice Judith A. Hillery signed an Order to Show Cause staying the Landlord's eviction petition and the underlying action herein commenced. 10 7/9/92 4/7/93 4/13/93 4/26/93 9/l/93 9/2/93 10/5/93 10/10/93 10/19/93 12/93 117/94 3/18/94 CHRONOLOGY Tenant (Cuevas) submits housing application to Landlord (Beacon Housing Authority), Tenant inverviewed by Beacon Housing Authority for four (4) bedroom apartment. Mr. Dross signs authorizations. Beacon Housing Authority sends letter to Tenant advising her that Mr. Dross and his daughter could not be added to application. Tenant drops Mr. Dross and his daughter from application and signs lease for four (4) bedroom apartment. (42 Forrestal Heights). Beacon Free Press article appears reporting Dross' arrest for assaulting Tenant and listing his address as 42 Forrestal Heights. Beacon Housing Authority receives note, allegedly from Mr. Cabrera, stating that Mr. Dross lives at 179 Main Street in Beacon. Beacon Housing Authority unable to verify Mr. Cabrera's note and sends letter to Tenant warning her not to board lodgers after observing Mr. Dross on premises on regular basis. Beacon Housing Authority warns Mr. Dross to stay off premises and files complaint for Criminal Trespass with Beacon Police. Notice of Termination mailed to Tenant alleging a violation of lease prohibiting the provision of accommodations to boarders and lodgers. Tenant observed going to work for Dr. Slade in Newburgh. Beacon Housing Authority sends letter to Tenant advising that her unreported employment had placed her in violation of her lease and that her rent would be adjusted to fair market amount. Beacon Housing Authority sends updated termination notice after receiving confirmation of income from Dr. Slade. 11 4/18/94 5/5/94 5/16/94 5/25/94 6/21/94 7/11/94 7/15/94 8/1/94 8/19/94 9/22/94 10/6/94 12/9/94 1/9/95 Beacon Housing Authority sends another amended termination notice adding a charae that Tenant had brought a vehicle onto the premises without registering same with the Beacon Housing Authority. Informal settlement conference held with Beacon Housing Authority board. Beacon Housing Authority sends rent adjustment letter based on Dr. Slade's information. Summary of settlement conference mailed to Tenant. Administrative hearing held before Vincent Catalano, Jr., Esq. Hearing Officer Catalano sustained each of Beacon Housing Authority's alleged lease violations and found that two (2) of those violations represented good cause for terminating Tenant's lease. Notice of Petition and Petition to evict served on Tenant returnable 8/2/94 in Beacon City Court. Hillery, J. signs Order to Show Cause staying Beacon Housing Authority's eviction petition and Tenant's Article 78 petition. Beacon Housing Authority's Answer. Tenant's Reply. Beacon Housina Authority's Sur-Reply. Hillery, J. finds that there was an error at law in finding tenant in violation of paragraph 8(2) of lease and transfers substantial evidence issue to Appellate Division pursuant to CPLR 7803(4), Notice of Appeal filed. 12 POINT I THE COURT BELOW ERRED IN RELYING UPON REAL PROPERTY LAW SECTION 235-F IN ITS REVERSAL OF THE HEARING OFFICER'S DETERMINATION It is respectfully submitted that Real Property Law Section 235-f does not apply to this case. The court below relied upon this statute in reversing the hearing officer's determination that the Beacon Housing Authority could terminate the Tenant's lease for permitting a boarder, i.e., Arique Dross, to occupy her apartment in violation of paragraph 8(21 of her lease agreement. Subdivision 8 of Real Property Law Section 235-f provides: "Nothing in this section shall be construed as invalidating or impairing the operation of, or the right of a landlord to restrict occupancy in order to comply with federal, state or local laws, regulations, ordinances or codes." It is undisputed that Section 966 of the Code of Federal Regulations (24 CFR 9661 is applicable to the Beacon Housing Authority. Specifically, 24 CFR 966.1 provides that the purpose of these federal rules is to prescribe the provision that shall be incorporated into leases by public housing agencies for dwelling units associated with the U.S. Housing Act of 1937. It is apparent, therefore, that the rules and regulations cited in the Housing Authority's teraination notice are aandated by the u.s. Departaent of Housing and Urban Developaent. Furtheraore, 24 CFR 966.4 (which sets forth lease requireaents) provides, in substance, that the lease "shall" be entered into between the public housing authority and each tenant of 13 a dwelling unit. In addition, this regulation ·~equires that each member of the household that will reside in the unit be separately identified on the lease. Section 966.4(c) also provides that the lease "shall" provide for re-determination ot' rent and family composition, which "shall" include an agreement by the tenant to furnish such information and certifications regarding these topics as may be necessary for the public housing authority to make determinations with respect to rent, eligibility and appropriateness of dwelling size. Furthermore, Section 966.4(f) requires that the Housing Authority's lease provide that the Tenant be obligated not to provide accommodations for boarders or lodgers and that the dwelling unit be solely used as a private dwelling lor the tenant and the tenant's household as identified by the lease. Sections 960.205 and 960.206 also impose a duty upon the Housing Authority to screen its housing applicants and verify the information supplied to it during the application process. (A 12-13) The repeated use of the word "shall" throughout the text of these regulations, it is argued, removes any discretion from the Housing Authority. All public housing authorities are required to incorporate these terms and procedures into its lease agree•ents. In Grammercy v. Harris, 446 F. Supp. 814 (S.D. NY 1977), the District Court held that a regulation promulgated by the Department of Housing and Urban Develo~ent, validly issued, has the force and effect of federal law. In addition, the court ruled that where compliance with a local law would require non-compliance with a federal law, the local law must give way under the Supremacy Clause (U.S. Const., Art.VI, cl.2). In effect, the Beacon Housing 14 Authority has no choice but to include these provisions in its lease and enforce them when the tenant is in violation thereof. See also, Morrisania v. Harvey, 137 M2d 651 (Civ. Ct. Bronx Co. 1988). In Mitchell v. Municipal Housing Authority ____ M2d (Sup. Ct. West Co., 1995), the court held that, in a similar factual situation, Real Property Law Section 235-f did not prohibit a Housing Authority from evicting a tenant who violated her lease by permitting the father of her children (who was not an identified resident on the lease) to reside in her apartaent. In this decision (A-1), the court found that Real Property Law Section 235-f(8) rendered the state law inapplicable due to the federal regulatory requirement that a tenant not provide accommodations to boarders or lodgers. No other result aakes any sense. To permit tenants to bring unauthorized residents into their apartments would wreck havoc with the entire public housing systea. · The ability to pre-screen applicants and to exercise discretion in rejecting them, codified in Section 960.205(b)(3) and recognized by the court in Mitchell, at (A-6), would be destroyed. Housing authorities would be powerless to exclude convicted rapists and murderers, such as described in Mitchell, supra. Re-determination of rent and dwelling size adjustments would become impossible to enforce. Surely, this is not what the state legislature intended in enacting Real Property Law Section 235-f. In fact, it is interesting to note, the Tenant herein provides absolutely no legislative history in support of this absurd position. 15 Both the Tenant and the court below misinterpret the decision in Marine Terrace Association v. Zeimbekis, 122 M2d 921 (Civ. Ct. NY Co. 1983) to support this position on this issue. While it is contended that the holding in Marine Terrace also runs afoul of the clear application of Subdivision 8 of Real Property Law Section 235-f, it is also irrelevant to the facts of the case herein. The Beacon Housing Authority has never argued that Mr. Dross should be precluded from residing with the Tenant in her apartment at Forrestal Heights. It only required that he proceed through the application process just like every other applicant. The facts elicited before the hearing officer confirmed that he did not wait for that process to conclude. He moved in almost immediately after the Tenant took occupancy of her apartment. She, thereafter, placed herself in violation of her lease agreement and the hearing officer's determination should be affirmed. 16 THERE IS SUBSTANTIAL EVIDENCE IN THB RECORD TO SUPPORT THB HOUSING AUTHORITY'S CLAIM THAT THE TENANT VIOLATED HER LEASE The hearing officer, in rendering his decision (R 15), found that the Tenant had violated paragraph 8(2) of her lease agreement (R 55) by providing accommodations to a boarder or lodger, namely Arique Dross, the father of one of her children. In addition, he found that the Tenant had violated paragraph 5(bl of her lease by failing to report any change in her income/employment to the Beacon Housing Authority. The decision followed a five (5) hour long hearing at which the Tenant, Arique Dross and Housing Authority staff members testified. Providing accommodations to boarder or lodger In reaching this conclusion, Hearing Officer Catalano listed several areas of testimony that supported this determination. (R 24-26) The Tenant testified that she gave Mr. Dross a key to her apartment after she occupied the apartment in May, 1993. (R 198) She also filled out a voter registration form in September, 1993 on Mr. Dross' behalf (which he signed) setting forth her apartment as his place of residence. (R 222) Mr. Dross admitted that he used 42 Forrestal Heights (the Tenant's apartment) as his mailing address. (R 210) He further used this apartment as his address when the City of Beacon Police asked him where he resided while being processed for an arrest which was reported in the Septeaber 1, 1993 17 edition of the Beacon Free Press. IR 3681 Later that same year, in December, 1993, Mr. Dross again used 42 Forrestal Heights as his residence when he appeared in Beacon City Court on an unrelated charge. IR 215, R 68. In addition, Mr. Dross candidly admitted that he stayed at the Tenant's apartment for " ••• about two days" (R 2171 sometime in October, 1993 without the permission of the Housing Authority. !R 216-219) The testimony of the Tenant and Mr. Dross is further supported by the observations of staff members of the Housing Authority. William Shaw, Executive Director of the Beacon Housing Authority, testified that between May 1, 1993 and April 18, 1994 he observed Mr. Dross on the premises of Beacon Housing Authority approximately twelve (121 to fifteen (151 times a month. !R 2581 Steven Pavlovic, Chief of Maintenance for the Beacon Housing Authority, testified that he resides at 40 Forrestal Heights which is next door to the Tenant's residence. Between May 1, 1993 and April, 1994 he often observed Mr. Dross in the late evenings and early mornings in and around the subject premises. He further stated that he saw Mr. Dross as late as 10:00 p.m. and as early as 8:00 a.m. in and around 42 Forrestal Heights. (R 246-2471 It is argued that this evidence, taken in its totality, is more than sufficient to support the hearing officer's determination that the Tenant violated paragraph 8(2) of her lease. 18 f.ailing to report chanl(e in income/employmen_!:: Hearing Officer Catalano again set forth several areas of testimony that he relied upon in making this determination. CR 24-26). It is undisputed that between November, 1993 and February, 1994, the Tenant worked for Dr. Slade in Newburgh, N.Y. In fact, the Tenant admitted during the course of the hearing that she did not comply with paragraph 5(b) of her lease that required her to report any change in her income and employment to the Housing Authority. CR 187) The only reason the Housing Authority became aware of Tenant's employment was because an alert staff member observed her leaving her apartment in a white uniform on several occasions in December, 1993. An investigation revealed that she was working as a receptionist across the river in Newburgh. A call by Housing Authority Executive Director Shaw to the Department of Social Services informed that agency of Tenant's employment. Again, the evidence overwhelmingly supports the hearinl( officer's determination that the Tenant violated paragraph 5(b) of her lease. Conclusion It is well recognized that courts should not interfere with an administrative finding of fact nor substitute its judgment for such a determination unless the decision is found to be arbitrary and capricious or constituted an abuse of discretion. Matter of Pell v. Board of Education, 34 NY2d 222 (1974). In Pell, the Court of Appeals stated: 19 "The doctrine is well settled that neither the Appellate Division nor the Court of Appeals has the power to upset the determination of an administrative tribunal on a question of fact ••• The courts have no right to review the facts generally as to the weight of evidence beyond seeing to it that there is substantial evidence ••• When the issue concerns the exercise of discretion by the administrative tribunal, the courts cannot interfere unless there is no ration&! basis for the exercise of discretion or the action complained of is arbitrary and capricious.'' Id. at pp.231-232, In the case at hand, there is no dispute that the Tenant violated paragraph 5(b) of her lease agreement. The only question is whether she also violated paragraph 8(2) of her lease involving the provision of accommodations of boarders and lodgers. After listening to more than five (5) hours of testimony, the hearing officer rendered a decision finding the Tenant in violation of this clause. He summarizes his reasons for making this determination in his decision. (R 24) There is certainly a rational basis to support his determination. In addition, the hearing officer found that the Tenant's violation of these two lease provisions represented good cause to terminate her lease. (R 27) In Montgomery v. New York City Housing Authority, 56 AD 2d 778 (1st Dept., 1977) the Appellate Division held that the duty of the court was complete when it satisfied itself that there was a rational basis for an administrative determination that the Tenant be removed from the public housing project because of the acts of the Tenant's minor sons. In that case the Appellate Court further held that the lower court's 20 directive that the New York City Housing Authority work with the Tenant in an attempt to secure appropriate care or supervision required for this djsruptive youngster was an unwarranted interference with the Housing Authority's powers and duties. Section 966 of the Code of Federal Regulations (24 CFR 966) requires that the Beacon Housing Authority incorporate certain language regarding duties and obligations of tenants into its lease agreements. The Landlord has complied with these regulations and is attempting to enforce those regulations as they apply to this Tenant's activities. The Hearing Officer listened to the testimony of the witnesses presented by both the Landlord and the Tenant and sustained the Landlord's determination to terminate the Tenant's lease because these regulations had been repeatedly violated by the Tenant. See also, Jones v. New York City Housing Authority, 60 AD 2d 812 (1st Dept. 1978) where the Appellate Division held that the Housing Authority's termination of a lease because a tenant violated the Housing Authority rule with regard to permitting males to take up residence with her was not excessive. The court held that termination was the only way to assure that the destructive male would stay out of the premises. 21 THERE IS SUBSTANTIAL EVIDENCE IN THE RECORD TO SUPPORT THE HEARING OFFICER'S DETERMINATION THAT THE TENANT VIOLATED HER LEASE AGREEMENT BY PROVIDING ACCOMODATIONS TO A BOARDER AND BY NOT REPORTING INCOME EARNED THROUGH HER EMPLOYMENT WITH DR. SLADE. Dated: September 8, 1995 Respectfully submitted, PISANELLI & FORMAN Attorneys for Respondents-Appellants. 2 Cannon Street Poughkeepsie, New York 12601 22