Opinion
No. 400406/12.
2012-06-29
In the Matter of the Application of Yvonne MERRITT, Petitioner, v. John B. RHEA, as Chairperson and member of The New York City Housing Authority and the New York City Housing Authority, Respondents.
The Bronx Defenders, Bronx, for Petitioner. Sonia M. Kaloyanides New York, General Counsel to Respondent.
The Bronx Defenders, Bronx, for Petitioner. Sonia M. Kaloyanides New York, General Counsel to Respondent.
MANUEL J. MENDEZ, J.
Upon a reading of the foregoing cited papers, it is ordered and adjudged that this Article 78 Petition is granted the Hearing Officer's determination is annulled and remanded for further proceedings with the appointment of a Guardian Ad Litem.
Petitioner brings this Article 78 Petition to annul the Hearing Officer's decision dated December 30, 2011, that denied her motion to set aside the hearing officer's determination terminating her tenancy and have a new Hearing with the assistance of a Guardian Ad Litem. Petitioner resides at 645 Arnow Avenue Apt. 2C Bronx, New York (Park side Houses). Respondent sought termination of Petitioner's tenancy for non-desirability. A hearing was conducted before Hearing Officer Desiree Miller, where petitioner appeared without an attorney or a Guardian. She was represented by her daughter who has no legal training.
The Hearing took place over a period of time spanning two months. The first day, March 19, 2009 Petitioner requested and was granted an adjournment. The second day, April 21, 2009 Petitioner's daughter, Daysha Staggers, submitted a letter from an Community Mental Health Center (Fordham–Tremont) to show that Petitioner has been a patient in the program since September 2008, that she is chronically mentally ill with a diagnosis of “Schizoaffective Disorder Cannabis Dependence”, is taking medication, attends individual and group therapy daily, and sees a psychiatrist monthly for medication review. [see Petition Exhibits I and J].
Upon reviewing the letter the Hearing Officer stopped the hearing and adjourned for purposes of having a mental competence evaluation. The evaluation by Marilyn Goulbourne-administrator-took place on May 19, 2009.
Ms. Goulbourne noted that “within the past year, [petitioner] has exhibited seriously confused or disordered thinking”, “ “[she] denies any past or present mental health history”, and determined that [petitioner] is competent and does not need a Guardian Ad litem (GAL).” [See Exhibit K].
The information recorded by Ms. Goulbourne at the assessment interview is contrary to that given the hearing officer by Petitioner's daughter. It does not mention if the Fordham–Tremont Health Center was contacted to determine the extent and seriousness of Petitioner's mental illness; does not mention the medications she is taking to treat her mental illness or the effects that these medications may have or her ability to understand the proceedings and defend her rights. [see Exhibit K].
Acting on the recommendation of the competency evaluator the Hearing Officer continued with the hearing and terminated Petitioner's tenancy. Following the determination petitioner obtained the assistance of counsel who filed an Article 78 Petition to annul the determination. This Petition was granted and the determination annulled. Respondents appealed and a decision on the appeal is pending [See Exhibit L]. While the appeal was pending Petitioner made a motion before the Hearing officer to set the matter for a new Hearing with the assistance of a Guardian. That motion was denied on December 30, 2011 and petitioner brings this Article 78 Petition to annul that determination.
[See Exhibit O].
“Schizoaffective disorder is a condition in which a person experiences a combination of schizophrenia symptoms—such as hallucinations or delusions—and of mood disorder symptoms, such as mania or depression. People with the condition experience hallucinations, disorganized thinking and paranoid thoughts. Psychotic features and mood disturbance may occur at the same time or may appear on and off interchangeably. The course usually features cycles of severe symptoms followed by an improved outlook.”
At the hearing Petitioner's participation was limited, letting her non-attorney daughter speak on her behalf. The one statement she made in her defense was incoherent and disjointed, apologizing to the Law Department attorney for putting him through this ordeal. This testimony leads the reader to the conclusion that Petitioner does not understand the nature of the proceeding and cannot adequately protect and assert her rights and interests. [see Motion Exhibit C, Pg. 63–65].
While under article 78 the power of the supreme court to overturn an administrative agency's determination is limited, the court is charged with the obligation to insure that the proceeding leading to such determination comports with basic tenets of due process and complies with the agency's own guidelines and procedures. (See Padilla v. Martinez, 300 A.D.2d 96, 752 N.Y.S.2d 28 [1st. Dept.2002] annulling determination and remanding for appointment of Guardian where despite petitioner's inappropriate and bizarre behavior during the hearing, the Housing Authority's apparent knowledge that petitioner had been treated by a psychiatrist, petitioner's testimony regarding her treatment by a psychiatrist and the hearing officer's comments that petitioner needed psychiatric help the Authority held a hearing and held petitioner's inability to represent herself against her).
In the present case Petitioner has been diagnosed with a Schizoaffective disorder, is receiving outpatient treatment at a mental health center, is required to attend the Mental Health Center on a daily basis, is required to participate in individual and group therapy and see a psychiatrist on a monthly basis to review her medication. The Mental Competency Evaluator did not contact the Mental Health Center, speak to any of her therapists or Psychiatrist to determine the extent of her illness and competency. This information should have been provided to the hearing officer prior to the continuation of the hearing, and the Hearing Officer should have questioned further the Authority's determination that Petitioner was competent and not in need of a Guardian. The hearing officer was required to either seek the appointment of a Guardian or make another referral for Social Services Evaluation [see GM–3472 (Revised § III(E)(3); Blatch v. Hernandez, 360 F.Supp.2d 595 (S.D.NY 2005]. The hearing officer should have erred on the side of caution by appointing a Guardian, given the facts uncovered at the hearing regarding Petitioner's Mental Illness (See Davis v. New York City Housing Authority, 30 Misc.3d 1020(A), 2010 WL 5187708 [NY Supreme, 2010] ).
Respondent was aware of Petitioner's Psychiatric history and should have appointed a guardian to assist her in the administrative proceeding. Petitioner's psychiatric history, the incoherency of her testimony and lack of defense at the administrative hearing make the proceeding unfair and compel the annulment of the resulting disposition (see Padilla v. Martinez, 300 A.D.2d 96, 752 N.Y.S.2d 28, Supra). The Hearing Officer should have granted Petitioner's motion to set aside the determination terminating Petitioner's tenancy and granted a new hearing with the assistance of a Guardian Ad Litem.
Accordingly, for the foregoing stated reasons it is ORDERED and ADJUDGED that the Petition is granted, the Hearing Officer's denial of Petitioner's motion is annulled and the matter is remanded to the Housing Authority for a new hearing where petitioner shall be afforded the assistance of a Guardian.