New York City Hous. Auth. v. Evans

Full title: NEW YORK CITY HOUSING AUTHORITY, Petitioner-Landlord-Respondent, v…

Court: Appellate Term of the Supreme Court of New York, First Department

Date published: Sep 9, 2005

2005 N.Y. Slip Op. 51428 (N.Y. App. Term 2005)

806 N.Y.S.2d 446

Opinion

570492/04, 05-035.

Decided September 9, 2005.

Tenant appeals from a final judgment of the Civil Court, New York County, entered February 11, 2004 after a nonjury trial (Cyril K. Bedford, J.) which granted possession to landlord in a holdover summary proceeding.

Final judgment entered February 11, 2004 (Cyril K. Bedford, J.) affirmed, with $25 costs.

PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM J. DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.

PER CURIAM:

Civil Court lacks authority to permanently stay an eviction where, as here, the tenancy was terminated by petitioner New York City Housing Authority following an agency hearing on the merits and tenant exhausted all administrative remedies (see New York City Hous. Auth. v. McClinton, 184 Misc2d 818; New York City Hous. Auth. v. Williams, 179 Misc2d 822).

CONCURRING MEMORANDUM HON. LUCINDO SUAREZ, P.J.

I concur in the result. After an administrative hearing, landlord New York City Housing Authority determined that tenant was no longer eligible for continued occupancy on the grounds of chronic delinquency in the payment of rent. This determination was subject to review only in the CPLR Article 78 proceeding commenced by tenant. See New York City Housing Authority v. Velazquez, 191 Misc2d 15, 740 NYS2d 549 (App. Term 2nd Dep't 2001); New York City Housing Authority v. McClinton, 184 Misc2d 818, 711 NYS2d 293 (App. Term 1st Dep't 2000). The administrative determination was ultimately upheld and the final determination of the New York City Housing Authority may not be collaterally attacked in a summary proceeding. See West 95 Housing Corp. v. Baultwright, 2003 WL 22220126 (App. Term 1st Dep't); New York City Housing Authority v. Williams, 179 Misc2d 822, 687 NYS2d 539 (App. Term 2nd Dep't 1999).

Even if Civil Court had the power to afford the tenant a post judgment stay, it would have been inappropriate to do so here, as the rent delinquencies underlying the landlord's termination of the tenancy continued unabated into the probationary period agreed to by the parties during the course of the Article 78 proceeding. See Uptown Realty Unlimited, L.L.C. v. Obregon, 4 Misc 3d 131[A], 791 NYS2d 874 (App. Term 1st Dep't 2004); 960 Management Corp. v. Dzaba, 3 Misc 3d 127[A] (App. Term 1st Dep't 2004). Tenant has still failed to demonstrate a present ability to timely pay his rent.

This constitutes the decision and order of the court.