Opinion
02-15-2017
In the Matter of Sherry SCOTT, petitioner, v. VILLAGE OF NYACK HOUSING AUTHORITY, et al., respondents.
Legal Aid Society of Rockland County, Inc., New City, NY (Mary Ellen Natale of counsel), for petitioner. Finger & Finger, A Professional Corporation, White Plains, NY (Carl L. Finger of counsel), for respondents.
Legal Aid Society of Rockland County, Inc., New City, NY (Mary Ellen Natale of counsel), for petitioner.
Finger & Finger, A Professional Corporation, White Plains, NY (Carl L. Finger of counsel), for respondents.
RANDALL T. ENG, P.J., RUTH C. BALKIN, SANDRA L. SGROI, BETSY BARROS, JJ.
Proceeding pursuant to CPLR article 78 to review a determination of the Village of Nyack Housing Authority dated April 7, 2014, which upheld the imposition of a charge of $8.25 upon the petitioner to remedy a clogged drain condition in her apartment.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.
The petitioner, a tenant in an apartment unit owned by the Village of Nyack Housing Authority (hereinafter the VNHA), commenced this CPLR article 78 proceeding to review a determination of the VNHA upholding the imposition of a charge of $8.25 against her for services performed in clearing a clogged bathtub drain in her apartment. The petitioner's lease specifically provided that the cost to repair a condition attributable to a tenant's action or neglect would be borne by the tenant. After a grievance meeting, the VNHA determined that the petitioner was responsible for the drain clearing charge at issue in this proceeding. Following the commencement of the proceeding, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).
The Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804(g) since the determination to be reviewed was not made after a hearing held pursuant to direction of law at which evidence was taken (see CPLR 7803[4] ; Matter of VanHouten v. Mount St. Mary Coll., 137 A.D.3d 1293, 1294–1295, 28 N.Y.S.3d 433 ; Matter of Holcomb v. Williams, 72 A.D.3d 687, 687–688, 897 N.Y.S.2d 913 ). Accordingly, the determination is not subject to substantial evidence review. Nevertheless, since the full administrative record is before us, in the interest of judicial economy, we will decide the proceeding on the merits (see Matter of VanHouten v. Mount St. Mary Coll., 137 A.D.3d at 1295, 28 N.Y.S.3d 433 ).
The applicable standard of review in this is proceeding is whether the determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803[3] ; Matter of Resto v. State of N.Y., Dept. of Motor Vehs., 135 A.D.3d 772, 773, 22 N.Y.S.3d 584 ). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Matter of Peckham v. Calogero, 12 N.Y.3d 424, 431, 883 N.Y.S.2d 751, 911 N.E.2d 813 ; see Matter of Resto v. State of N.Y., Dept. of Motor Vehs., 135 A.D.3d at 773, 24 N.Y.S.3d 120 ). Here, contrary to the petitioner's contention, the record establishes that the VNHA's determination that the clogged drain was caused by the petitioner, who had exclusive occupancy and control of the apartment, was not arbitrary and capricious.
Similarly unavailing is the petitioner's complaint that the VNHA's executive director, who testified in support of the imposition of the charge, was also a member of the grievance committee that rendered the determination upholding the charge. The text of the challenged determination, although drafted by the executive director, clearly recited that it was the decision of the VNHA's grievance committee, of which the executive director is not a member.
The petitioner's remaining contentions either are not properly before this Court, as she did not advance them at the administrative level (see Matter of Peckham v. Calogero, 12 N.Y.3d at 430, 883 N.Y.S.2d 751, 911 N.E.2d 813 ; Matter of Lockley v. Housing Preserv. & Dev. of N.Y. City, 142 A.D.3d 1075, 37 N.Y.S.3d 588 ; Matter of Williams v. New York City Hous. Auth., 130 A.D.3d 433, 434, 14 N.Y.S.3d 330 ; Matter of
Rowe v. Rhea, 101 A.D.3d 420, 421, 955 N.Y.S.2d 30 ; Matter of Wallace v. Environmental Control Bd. of N.Y. [Dept. of Consumer Affairs], 8 A.D.3d 78, 78, 778 N.Y.S.2d 477 ), or without merit.