Opinion
No. 2244/12.
2012-09-14
In the Matter of the Application of Annie R. AIKEN, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. NEW YORK CITY HOUSING AUTHORITY, Respondent.
Petitioner represented herself pro se. Respondent represented by Laura R. Bellrose, Of Counsel to Kelly D. Macneal, Acting General Counsel for the New York City Housing Authority.
Petitioner represented herself pro se. Respondent represented by Laura R. Bellrose, Of Counsel to Kelly D. Macneal, Acting General Counsel for the New York City Housing Authority.
GENINE D. EDWARDS, J.
Pursuant to Article 78, Annie R. Aiken brings this Order to Show Cause to vacate respondent New York City Housing Authority's (“NYCHA”) determination to place her on one year probation for breaching the terms of her lease. NYCHA opposes the petition.
The Court will only address Aiken's claims regarding the chronic rent delinquency charge and the breach of the rules and regulations concerning the installation of the satellite dish. The air conditioner claim is a matter for the Housing Court.
It is well established law that judicial review of an agency's determination is limited to whether the determination was arbitrary and capricious or an abuse of discretion or made in violation of a lawful procedure or was affected by an error of law. Clendon v. New York City Housing Authority, 33 AD3d 913, 823 N.Y.S.2d (2d Dept.2006); Bradford v. New York City Housing Authority, 34 A.D.2d 463, 824 N.Y.S.2d 350 (2d Dept.2006); Zeigler v. New York City Housing Authority, 35 AD3d 624, 824 N.Y.S.2d 737 (2d Dept.2006); Brown v. New York City Housing Authority, 27 AD3d 733, 812 N.Y.S .2d 135 (2d Dept.2006).
Seventy-three year-old Aiken has been a NYCHA tenant since 1969. In the 1990s, she installed a satellite dish outside her apartment window. In 2004, she began to pay her rent with social security benefits she received on the third Wednesday of each month.
At the hearing, Aiken seemed to indicate that she had permission to install the satellite dish. See Hearing Transcript at pgs. 43–44, 71, 93–95.
In February 2009, Aiken sustained damage to her personal property due to a flood in her apartment. Aiken withheld her rent and commenced a Small Claims action to recover damages. NYCHA commenced a non-payment proceeding in Housing Court. That proceeding was discontinued before Judge Milin on October 29, 2009. The Small Claims action was resolved in December 2009; Aiken accepted a $1,780 .00 settlement from NYCHA. Aiken, however, inappropriately continued to withhold $400.00 from her rent.
In February 2010, NYCHA sent Aiken rent delinquency notices and charges for the period from February 2009–January 2010. These notices and charges were amended four times to include different dates. In 2011, Aiken received notices and charges that stated she breached NYCHA's rules and regulations by installing and failing to remove a satellite dish.
Aiken's 2001 lease required rent to be paid on the first day of each month. See Respondent's Verified Answer, Exhibit A.
Aiken's 2001 lease prohibited the installation of “other antenna on the window sill or at any place outside of the Leased premises.” Respondent's Verified Answer, Exhibit A. See also Respondent's Anser, Exhibit B. NYCHA also claimed that a 1979 lease contained the same provision, but that lease was not annexed to its papers.
From the chronology of facts, it appears that NYCHA had no issues with Aiken until she exercised her rights concerning her property damage claim. Indeed, NYCHA accepted Aiken's rent well beyond the first of the month for more than six years; and the satellite dish was outside her window for close to two decades. NYCHA also had access to Aiken's income and her premises through its recertification and inspection processes.
This Court finds that NYCHA's long-standing course of conduct of accepting petitioner's late rent payments for more than six years as well as not requiring petitioner to remove the satellite dish for nearly two decades amounts to a waiver of both provisions in petitioner's lease. Griffin's Landscaping Corp. v. Bisesto, 87 AD3d 1111, 929 N.Y.S.2d 867 (2d Dept.2011) (Having acquiesced in a course of conduct the defendant is estopped from asserting the contract terms.); BPIII–548 West 164th St. LLC v. Garcia, 95 AD3d 428, 943 N.Y.S.2d 483 (1st Dept.2012); Haslacha, Inc. v. Jubilee, Inc., 8 Misc.3d 1003(A), 801 N.Y.S.2d 777 (Civ.Ct., New York County 2005); Urban Horizons Tax Credit Fund, L.P. v. Zarick, 195 Misc.2d 779, 761 N.Y.S.2d 795 (Civ.Ct., New York County 2003). Thus, NYCHA's penalty of probation was in derogation of the law.
Accordingly it is,
ADJUDGED that the New York City Housing Authority's decision to place Aiken on one year probation is reversed; and it is
ORDERED that the New York City Housing Authority remove Aiken from the one year probation; and it is further
ORDERED that the New York City Housing Authority remove and return the satellite dish outside Aiken's window upon thirty days written notice; and it is further
ORDERED that Aiken shall provide access to the New York City Housing Authority for the removal of the satellite dish from the outside of her window and shall pay any outstanding rental arrears due to the New York City Housing Authority on or before October 5, 2012.