Opinion
401234/10.
Decided March 8, 2011.
Sandra Cabrera, Petitioner, Pro Se.
Sonia M. Kaloyanides, General Counsel to Respondent, New York City Housing Authority, New York, NY.
Upon the foregoing papers, it is ordered and adjudged that this Article 78 petition is granted, the Hearing Officer's determination is annulled and the matter is remanded to the Housing Authority for the imposition of a lesser penalty.
Petitioner resides at 251 East 3rd. Street Apt. 3E (Bracetti Plaza Houses) which is managed by the Respondent New York City Housing Authority. Respondent brought charges against Petitioner for Non-desirability, Chronic Rent Delinquency and Breach of Rules and regulations. At the time of the hearing petitioner was in arrears for two months rent. [see Petition specification of charges, Answer Exhibits A D ].
Petitioner is a 57 year old woman who cannot read or write and relies on public assistance as her only source of income. She resides in the apartment with her children and Grandchildren. [see Answer Exhibits M N ]. One of the family residents, Miguel Salish, petitioner's 20 year old son who also cannot read or write, was arrested in 2006 for possessing a loaded firearm. It is not clear from the record if he possessed the fire-arm on Housing Authority grounds, what is clear from the record is that he pled guilty to the felony charge and was sentenced to five (5) years probation. Mr. Salish is currently serving a sentence of two to four years in a state correctional facility on another charge. [see Answer Exhibits J K]. Sometime in 2008 Petitioner's apartment was searched pursuant to a search warrant and various individuals arrested therein, all of the charges were later dismissed [ see Answer Exhibits G, H, I F Transcript pg. 7 Line 15-17]. Petitioner has never been arrested.
An administrative Hearing took place on August 28, 2009 and March 11, 2010. The Housing Authority did not present any witnesses, but simply relied on documentation to establish its case. Petitioner appeared Pro-se accompanied by her daughter Elizabeth Escobar. Following the completion of the Housing Authority's case petitioner testified. She explained to the Hearing Officer that her son was no longer residing in her apartment because he was incarcerated. With respect to the Chronic-Rent Delinquency, Ms. Cabrera explained that her only source of income is Public Assistance and that there appears to be a problem with Public Assistance and the payment of her rent. The Housing Authority sends her a notice regarding non-payment of rent, she goes to the Public Assistance office who tell her that her rent has been paid.
Ms. Escobar was able to explain the problem in more detail. She stated that "well, the reason why she owed that large amount of rent from the process (sic) of July until when they finally made the payment — welfare has been battling back and forth with her about the work program. She actually was found ineligible to work, and for some reason, they keep going back and forth with her with that issue. And in the process, they keep on closing her case and saying that she's not complying with the work program, which she's not eligible to be in the program. So the reason whey she owed all that rent was because welfare kept on closing her case and then re-opening it. And when they would re-open it, they would never add rent to her budget when we applied for rent. So then she would go carrying another month or two of rent. And in the meantime, when we finally found out, it was like a month or two that she owed the rent. We would go back. They would say okay, fine. Sign this paper. We're going to add rent to the budget. Its just an ongoing process, which is the reason why now I'm taking her for a fair hearing, because it just keeps on going on." [see Answer Exhibit F Transcript Pg. 29 Line 3 to Pg. 30 line 3]. At Pg. 31 Line 4-9 Ms. Escobar stated: "I'm actually considering taking her social security so she could apply for that, so she did — — she'll have a different way to pay her rent, and she doesn't have to go through welfare and them closing her case, and you know, her missing rent. She could just pay her rent herself."
Hearing Officer Pannell gave petitioner until March 25, 2010 to submit documentation that rent arrears were paid or that public assistance would pay. [see Answer Exhibit F P]. Petitioner paid all rent arrears on March 16, 2010, prior to the expiration of the period given by the Hearing Officer; However, the Hearing Officer did not have knowledge of this fact when she made her determination.
On March 30, 2010 hearing officer Joan Pannell sustained the firearm possession charge and the Rent delinquency charge, but dismissed the remaining charges as not sufficiently supported by the record. In her findings and conclusions the hearing officer stated: "Permanent exclusion of Miguel Salich would be the appropriate disposition had the rent delinquency been cured. Tenant's explanation for the delinquency is credible. However, the charges were served in 2/09, and Tenant was accorded an adjournment in 8/09. After the hearing she was accorded an additional two weeks to submit documentation showing that the delinquency was at least about to be cured. NYCHA has accorded tenant all reasonable time to cure. Timely rent payment is an essential tenancy obligation. NYCHA is entitled to its requested disposition. [see Answer Exhibit P]. The hearing officer's determination was approved by NYCHA's Board on April 14, 2010. [see Answer exhibit Q].
Following service of NYCHA's Board determination Petitioner timely filed this Article 78 Petition to review and reverse the Hearing Officer's determination. [see CPLR § 217 (1] .
An administrative decision will withstand judicial scrutiny if it is supported by substantial evidence, has a rational basis and is not arbitrary and capricious, (Matter of Pell v. Board of Education, 34 NY2d 222; Davis v. Hernandez, 13 AD3d 90 [App. Div. 1st. 2004]). Termination of tenancy as a penalty for chronic rent delinquency is not so disproportionate to the offense as to be shocking to one's sense of fairness (Clendon v. New York City Housing Authority, 33 AD3d 913 [App. Div. 2nd. 2006]). The repeated failure or refusal of a tenant to pay rent when due is a sufficient standard fora termination of tenancy adjudication (Moise v. Christian, 97 AD2d 536 [App. Div. 2nd. Dept. 1983).
Judicial review of an administrative determination under Article 78 is confined to the facts and record adduced before the agency. Sanctions must be upheld unless it shocks the judicial conscience (see Featherstone v. Franco, 95 NY2d 550). A finding that a sanction of termination shocks the judicial conscience was made when petitioner, a 16 year resident of a public housing apartment, charged with chronic rent delinquency was prevented from presenting evidence in mitigation (see Robertson v. Popolizio, 179 AD2d 809 [1st. Dept. 1992]), when petitioner who had no criminal record, whose only source of income is from SSI and public assistance has cured the condition that led to the determination of non-desirability: has paid full restitution to the complaining witness, and complied with all conditions of probation (Vasquez v. New York City Housing, 57 AD3d 360 [1st. Dept. 2008]) Under these situations the court can remand the matter to the Housing Authority for imposition of a lesser penalty (see Vasquez v. New York City Housing Authority, Supra; Spand v. Franco, 242 AD2d 210 [1st. Dept. 1997]; Peoples v. New York City Housing Authority, 281 AD2d 259 [1st. Dept. 2001]).
The Hearing Officer although sustaining the charge of Non-desirability believed that the appropriate disposition on that charge should have been the permanent exclusion of Petitioner's son. The Hearing Officer found Petitioner's explanation for the delinquency to be credible. Petitioner paid the rental arrears within the period given to her by the hearing officer.
Petitioner is a 57 year old illiterate woman who is totally dependent on her daughter for assistance. She has been embroiled in an administrative nightmare with the Human Resources Administration which continually closes her Public Assistance case, her only source of income, causing her to be delinquent on her rent and other payments. Once she learns of the delinquency from the Housing Authority, she and her daughter immediately take steps to remedy the situation, which is remedied temporarily. She is not intentionally delinquent on her rent but is made delinquent by the continual bureaucratic entanglement. The non-desirability charge stems from an incident that occurred four years ago and her son is no longer residing in the apartment. Petitioner has never been arrested and there has been no finding that she or any of the other residents of the apartment pose any threat to NYCHA's residents or employees. To terminate her tenancy under these set of facts is shocking to the judicial conscience and to one's sense of fairness.(See Matos v. Hernandez, 79 AD3d 466 [1st. Dept. 2010]).
Accordingly, it is the decision and order of this court that the petition is granted, the hearing officer's determination terminating petitioner's tenancy is annulled and the case is remanded to the Housing Authority for the imposition of a lesser penalty.
Accordingly, it is ORDERED and ADJUDGED that the petition is granted, the hearing officer's determination terminating Petitioner's tenancy is annulled and it is further
ORDERED, that the case is remanded to the Housing Authority for the imposition of a lesser penalty.
This constitutes the decision and judgment of this court.