Opinion
100580-2015
04-14-2016
In the Matter of the Application of C.F., Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. New York City Housing Authority, Respondent.
Movant: C.F. MFY Legal Services Rochelle Watson, Esq. 299 Broadway, 4th Floor New York, New York 10007 (212) 417-3885 Respondents: New York City Housing Authority David Farber, Esq., Of Counsel Kimberly Wong, Esq. 250 Broadway, 9th Floor New York, New York 10007 (212) 776-5261
Movant: C.F. MFY Legal Services Rochelle Watson, Esq. 299 Broadway, 4th Floor New York, New York 10007 (212) 417-3885 Respondents: New York City Housing Authority David Farber, Esq., Of Counsel Kimberly Wong, Esq. 250 Broadway, 9th Floor New York, New York 10007 (212) 776-5261 Alexander W. Hunter Jr., J.
The motion by petitioner C.F. seeking an order, pursuant to C.P.L.R. § 2221 (e), granting leave to renew is hereby denied.
In November 2014, the New York City Housing Authority ("NYCHA") initiated proceedings to terminate the petitioner's tenancy due to her chronic failure to timely pay rent for her apartment in the public housing complex known as the Polo Grounds Houses ("subject premises"). NYCHA further alleged that the petitioner illegally sublet her public housing apartment and permitted an unauthorized individual to reside in said apartment. NYCHA furnished the petitioner with a notice informing the petitioner of the charges levied against her and instructed her to attend a hearing scheduled for January 5, 2015 if she wished to contest the aforesaid charges. Due to the petitioner's failure to appear at the hearing to contest NYCHA's claims, the Hearing Officer issued a Decision and Disposition, dated January 8, 2015, sustaining NYCHA's charges against the petitioner.
The petitioner subsequently made an application to open her default on February 2, 2015, on the basis that she was unable to appear at the hearing due to an emergency at her son's school, for which her presence was required. In her application, the petitioner admitted to having engaged in some of the proscribed forms of conduct alleged by NYCHA, but disputed ever having illegally sublet the subject premises. However, the petitioner acknowledged that she allowed an unauthorized occupant to reside in her dwelling, but asserted that the charges related to said unauthorized occupant had since been resolved, which NYCHA confirmed. With respect to the rent arrears, the petitioner averred that she was awaiting a "one-shot deal," which she seemingly believed would cure the problem.
On February 11, 2015, the Hearing Officer denied the petitioner's application, determining, among other things, that the complete absence of "any explanation for her inability to call or arrange to have a representative call or appear on her behalf to request an adjournment" rendered her papers insufficient to state an excusable default. Furthermore, the Hearing Officer highlighted the fact that the petitioner owed $4,651.40 in outstanding rent at the rate of $280.00 per month and noted that the petitioner was not guaranteed to receive a one-shot deal. Moreover, the Hearing Officer explicitly conveyed that her decision would remain unchanged even if the petitioner were to obtain the one-shot deal, because the petitioner "did not present a viable plan to become current and remain current with future payments," and, therefore, did not demonstrate that she had a meritorious defense.
The petitioner commenced this Article 78 proceeding seeking an order from this court, reversing the above-mentioned decision and granting the petitioner's application to reopen her default and vacate the termination of her tenancy. In assessing the record before it, this court drew conclusions that were analogous to those enumerated in the Hearing Officer's decision. Significantly, the court noted that the petitioner was afforded advanced notice of the January 5, 2015 hearing and failed to proffer any information establishing that the petitioner was somehow unable to seek an adjournment of the hearing. The court also emphasized that, although the petitioner received the one-shot deal and alleged that she had resolved all of the arrears, she never achieved a zero balance. Furthermore, NYCHA provided evidence documenting the
petitioner's continued failure to make timely rent payments after she procured the one-shot deal — as of May 26, 2015, NYCHA's records indicated that the petitioner owed $1,178.00. Consequently, by decision and order dated September 9, 2015, this court denied the petitioner's motion and dismissed the matter. This court thereafter declined to sign the petitioner's order to show cause, submitted in conjunction with a proposed temporary restraining order, on December 22, 2015.
In the instant motion, the petitioner seeks an order granting leave to renew. Pursuant to C.P.L.R. § 2221 (e), a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion." Renewal is not intended to function as a "second chance freely given to parties who have not exercised due diligence in making their first factual presentation." Rubenstein v. Goldman , 225 AD2d 328, 329 (1st Dept. 1996), quoting Matter of Beiny , 132 AD2d 190, 210 (1st Dept. 1987), lv dismissed 71 NY2d 994 (1988).
The appellant's attorney contends that NYCHA has incorporated an unduly onerous prerequisite to proving a reasonable excuse for default by purportedly requiring the petitioner to both establish that she had an excuse for the delay and explain why she did not seek an adjournment. This court does not agree with the petitioner's attorney's interpretation. Rather, the fact that petitioner failed to seek an adjournment despite being previously aware that the parent-teacher conference and the NYCHA hearing were scheduled for the same day operates as a qualitative factor, which militates against finding that said excuse was "reasonable." In fact, this court iterated as much in its previous decision.
In support of the instant motion, the petitioner submits three purportedly newly-presented facts, which petitioner's attorney argues suffice to warrant a reversal of this court's prior decision. The first two arguments relate to a Housing Court stipulation ("Stipulation") between the petitioner and NYCHA, in which NYCHA, having received payment for the amount in arrears, acquiesced to the discontinuation of the housing court matter against the petitioner. The petitioner's attorney maintains that this court incorrectly overlooked the aforesaid stipulation when deciding the petitioner's motion. The second, related, point raised in the petitioner's motion can be summarized as the petitioner's attorney's belief that there is a conspicuous correlation between the timing of the Human Resource Administration's ("HRA") payments to NYCHA and the date when the petitioner's pro se application to vacate the default, which the petitioner's attorney categorizes as a "new" fact.
The respondents describe the petitioner's motion as a belated motion to reargue, and, unfortunately, the petitioner's attorney's own verbiage tends to substantiate the respondent's classification of the motion. Indeed, the petitioner's attorney's affirmation informs that [t]he Supreme Court, in rendering its decision dated September 9, 2015, overlooked the Housing Court stipulation submitted by the Petitioner in support of her Article 78 motion, failing to take into account a key fact in the case. This mistake of fact is sufficient to warrant a reversal of the Supreme Court's decision.
Any potential oversight by the court in assessing factual allegations presented on a prior
motion may be properly set forth in a motion to reargue, but typically, cannot form the basis of a motion to renew. By the petitioner's own admission, she was in possession of said stipulation agreement when she filed the prior Article 78 petition seeking reversal of the Hearing Officer's determination. Thus, it is hard to defend the notion that said stipulation agreement is "newly discovered evidence." The same holds true for the information and inferences which naturally flow from said stipulation, which significantly weakens the petitioner's contention that the timeline of events intimated by the petitioner's attorney should be deemed "new information."
C.P.L.R. § 2221 (d) provides that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." To obtain relief under C.P.L.R. § 2221 (d), a movant must file a motion to reargue within thirty (30) days after service of a copy of the order determining the prior motion and written notice of entry. The petitioner herein failed to file a motion to reargue within the permissible time period and is thereby precluded from seeking relief thereunder.
The third piece of information the petitioner's attorney construes as "new" is the more detailed and informative articulation of the import and context of the petitioner's "emergency" at her son's school. This extrapolation of previously conveyed information cannot rationally be regarded as a new fact.
However, although a motion to renew should usually be founded upon newly discovered facts, petitioner's attorney correctly surmises that such a rule is not absolute; under proper circumstances, a court may exercise its discretion to grant renewal in the interests of justice despite the movant's failure to comply with all of the statutorily prescribed requirements. Frampac Delicatessen v. Aetna Cas. & Sur. Co., 249 AD2d 36 (1st Dept. 1998); Martinez v. Hudson Armored Car & Courier, 201 AD2d 259 (1994); De Almeida v. Finesod, 201 AD2d 491 (1st Dept. 1990). Where a court permits a motion to renew to rest upon facts known to the movant at the time of the original motion, it is still incumbent upon the movant to provide a reasonable excuse for the failure to present such facts on the original motion and to demonstrate that said facts would alter the court's prior determination.
In evaluating whether the interests of justice weigh in favor of relaxing the statutory requirement mandating the inclusion of "new facts" in the instant motion, this court takes particular notice of the circumstances underlying the petitioner's situation and the severity of the imposed penalty of eviction. With the assistance of the New York City Human Resources Administration Domestic Violence Aftercare Program, the petitioner was granted an emergency relocation to the subject premises to prevent her from being subjected to further acts of domestic violence. The petitioner attests that she is the sole caretaker of her four year old son and that she lacks family or other resources upon which she could rely to secure new housing for herself and her son, which further demonstrates the magnitude of NYCHA's eviction proceedings.
Nonetheless, even if this court were to incorporate the "new" facts adduced by the petitioner into its analysis, its previous determination would remain unaltered. It is axiomatic that the breadth of judicial review of an administrative determination is confined to whether said "determination was made in violation of a lawful procedure, was affected by an error of law or [*4]was arbitrary and capricious or an abuse of discretion as to the measure or mode of penalty or discipline imposed." C.P.L.R. § 7803 (3). The proper test looks solely as to whether there is a rational basis underlying the determination. In Matter of Pell v. Bd. Of Educ., 34 NY2d 222 (1974). The Court of Appeals has further elaborated on this standard of review by stating, [w]here, however, a hearing is held, the determination must be supported by substantial evidence (CPLR 7803, subd 4); and where a determination is made and the person acting has not acted in excess of his jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of his discretionary power, including discretion as to the penalty impose, the courts have no alternative but to confirm his determination. Id ., at 231.
In simplistic terms, to grant the petitioner the relief requested herein, this court would have to perceive the "new" facts to be so compelling as to mandate a determination that the Hearing Officer's decision to deny the petitioner's application to open her default was arbitrary and capricious. Pursuant to NYCHA's Termination of Tenancy Procedures, where an aggrieved tenant makes an application to open a default within a reasonable time after the default in appearance, a hearing officer may open a default and schedule a new hearing date for a good cause shown. To exhibit "good cause," the tenant petitioner is required to tender both a reasonable excuse for the default and a meritorious defense. Matter of Daniels v. Popolizio, 171 AD2d 596 (1st Dept. 1991); Matter of Matias v. New York City Hous. Auth., 46 Misc 3d 1213(A), 9 N.Y.S.3d 594 (Sup. Ct. NY Cty. 2015).
Ultimately, there are two facts addressed in both this court's prior decision and the initial Hearing Officer's determination which prove to be fatal for petitioner's motion. First, it is quite apparent that the petitioner had prior notice of both the NYCHA hearing and the parent-teacher conference at her son's school. Both this court and the Hearing Officer stressed that the petitioner's dereliction of her responsibility to reschedule her NYCHA hearing negated the notion of a "reasonable excuse." While it is true that the petitioner informed the Hearing Officer that she was awaiting a one shot deal in her initial application, both this court and the Hearing Officer determined that the lack of evidence intimating that petitioner would be able to remain current with any future payments to be a rational basis for terminating her tenancy.
However, this court would be remiss if it did not discuss the oddity of NYCHA's course of action in these proceedings. In July 2015, NYCHA and the HRA entered into a Memorandum of Understanding Regarding the Rental Assistance Unit and Emergency Assistance Grant ("MOU"). The MOU was executed "for the purpose of assisting NYCHA residents subject to a NYCHA administrative hearing, by expediting the processing and payment of rent arrears or the issuance of Emergency Assistance Grants ("EAG") by HRA to eligible NYCHA residents." The agreement reflects an increasing awareness of the cyclical economic hardships many public housing residents endure and attempts to prevent impoverished individuals from being further penalized due to their socio-economic status. The petitioner herein, a domestic violence survivor with a young child, exemplifies the [*5]type of tenant the agreement is designed to protect. The petitioner listed several reasons for her inability to timely pay rent, which included her need to relocate to Georgia to escape her former abuser, as well as sustained periods of time during which she was unemployed. Furthermore, NYCHA received payment in full for the arrears accrued prior to February 2015. Although the petitioner fell back in arrears, the petitioner's attorney has indicated that the HRA has transferred the funds necessary to repay the amount owed to NYCHA for the newly accrued arrears. Nonetheless, because it cannot be said that the Hearing Officer acted without a foundation in fact, the court must uphold the Hearing Officer's determination despite concluding "that it would have reached a different result than the one reached by the agency." Matter of Pena v. New York City Hous. Auth., 2010 WL 3451934 (N.Y.Sup.), 2010 NY Slip Op. 32325(U), *3(Sup Ct, NY County 2010), affd Matter of Pena v. New York City Hous. Auth., 91 AD3d 581 (1st Dept. 2012). Accordingly, it is hereby ORDERED that the petitioner's motion for leave to renew is denied, and it is further ORDERED that movant serve a copy of this order with notice of entry upon all parties within twenty (20) days of entry and file proof thereof with the clerk's office. This constitutes the decision and order of this court. Dated:April 14, 2016ENTER: _____________________________ J.S.C.
Because the MOU was executed by the HRA and NYCHA on July 14, 2015, which post-dates the underlying proceedings, it cannot be evaluated for purposes of deciding whether NYCHA's decision to terminate the petitioner's tenancy was arbitrary or capricious.