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Lopez v. Henry Phipps Plaza South Inc.

decided: June 18, 1974.

NARCISA LOPEZ, PLAINTIFF-APPELLEE,
v.
HENRY PHIPPS PLAZA SOUTH, INC., DEFENDANT-APPELLANT



Appeal from an order of the District Court for the Southern District of New York, Thomas P. Griesa, Judge, granting a temporary injunction against the eviction of plaintiff and her children from an apartment in a housing development owned and operated by a corporation organized pursuant to the New York Redevelopment Companies Law.

Moore, Friendly and Feinberg, Circuit Judges.

Author: Friendly

FRIENDLY, Circuit Judge:

I.

Defendant-Appellant, Henry Phipps Plaza South, Inc. (Phipps), is a non-profit redevelopment company organized pursuant to the New York Redevelopment Companies Law, N.Y. Priv. Hous. Fin. Law § 100 et seq. (McKinney 1962). It was created to build and operate a housing project for low and middle income families in New York City pursuant to the Bellevue South Urban Renewal Plan. The law provides for extensive supervision of the organization, planning and operation of redevelopment companies by New York City's Housing and Development Administration. Phipps' certificate of incorporation declares that it "has been organized to serve a public purpose"; that the Housing and Development Administration may remove any director from office if the company fails to comply with the Administration's requirements; and that Phipps shall remain subject to the Administration's supervision and control on a permanent basis. New York City acquired the land by exercise of its power of eminent domain and conveyed it to Phipps by a deed which incorporated by reference a detailed agreement, theretofore approved by the New York City Board of Estimate, with respect to the construction and operation of the project. The property enjoys a 25-year exemption from real estate taxes, other than assessments for local improvements, and so much of its value as exceeds the assessed value at the time of acquisition by the City. Phipps benefits from interest reduction payments provided in § 236 of the National Housing Act, 12 U.S.C. § 1715z-1, and participates in the federal rent supplement program, 12 U.S.C. § 1701 s. Participation in a § 236 program is conditioned on the execution of a Regulatory Agreement with the Federal Housing Administration; this provides, inter alia, minimum and maximum rent schedules, tenant selection priorities, and other restrictions on the landlord's rental practices.

On October 1, 1970, plaintiff Narcisa Lopez and her husband Thomas Lopez entered into a lease of an apartment in the building which Phipps had constructed pursuant to its arrangements with the City and HUD. Paragraph 9 of the lease provided in pertinent part as follows:

Tenant and Tenant's family, guests, servants, employees, agents, licensees and visitors shall comply with all of the Rules and Regulations set forth at the end of this lease and such other and further rules and regulations as Landlord may hereafter from time to time deem necessary or desirable and may prescribe for the safety, care, cleanliness and reputation of the demised premises, or all or part of the Development or for the comfort and convenience of Tenant or other tenants of the Development. Tenant and Tenant's family, guests, servants, employees, agents, licensees and visitors shall at all times conduct themselves in and about the demised premises and the Development in a manner which shall be free from annoyance to other tenants in the same or neighboring buildings or elsewhere in the Development to the end that other tenants in the same or neighboring buildings or in the Development shall enjoy the occupancy and use of their premises and their rights and privileges as tenants with reasonable comfort, convenience and safety. Failure on the part of Tenant and Tenant's family, guests, servants, employees, agents, licensees or visitors to observe any such requirements as provided in this paragraph shall be grounds for the termination of this lease in the manner herein provided . . . .

The one-year lease was renewed, apparently several times. The last renewal expired on December 31, 1972.

On January 12, 1973, Phipps addressed a letter to Mr. and Mrs. Lopez announcing that it had decided not to renew the lease again. The decision was based on thirteen alleged acts of misconduct, most of them attributed to Thomas Lopez, Sr., and the two teen-age sons, Thomas, Jr., and Jose. The letter advised that the tenants could appeal the decision by written request within 15 days. If they sought review, the letter stated, they could ask for a hearing at which they might be represented by an attorney and have witnesses present. In the absence of a request for a review or in the event of an affirmance of the initial decision, summary proceedings for eviction would be instituted.

Through an attorney, Mr. and Mrs. Lopez requested a hearing, which was scheduled for February 27, 1973. The hearing officer was John Codman, Manager of Lambert Houses, a similar project of a non-profit corporation whose stock is owned by Phipps Houses, Inc., a non-profit organization that also owns the stock of the defendant Phipps. At the request of an attorney from MFY Legal Services, Inc., the hearing was adjourned to enable Mrs. Lopez to obtain the services of a Spanish-speaking interpreter. The hearing was resumed on March 6; Mr. and Mrs. Lopez and Thomas, Jr., were present, along with an attorney from MFY Legal Services, who stated that she represented only Mrs. Lopez. Four security guards and a superintendent testified on the behalf of the landlord with regard to various charges against the Lopez family. Thomas Lopez, Sr., testified at the hearing, but Mrs. Lopez and Thomas, Jr., declined to do so. At the conclusion of the hearing, Codman reserved decision. On April 16, 1973, Phipps sent the tenants another letter alleging two further acts of misconduct by Thomas Lopez, Sr., on March 17 and March 23, 1973. The landlord requested a further hearing to explore these charges and to introduce various records that have been subpoenaed from the Police Department. The final hearing was held on May 2, 1973; although they were informed of the date and time of the hearing, the tenants did not attend.

In a report dated July 10, 1973, the hearing officer held that the charges against the tenants furnished substantial ground for the landlord's refusal to renew the Lopez ' lease. Although the hearing officer found that the landlord had not presented sufficient evidence to prove a number of the charges, he held that the following charges had been established:

(1) On the night of March 20, 1972, a security guard found Thomas Lopez Sr., lying drunk in the lobby of the Lopez ' apartment building. When the guard told him to go upstairs, Lopez swung at him and took out a liquor bottle which smashed on the floor. Police who had been summoned found on Lopez's person a knife 4 to 6 inches long with a hooked point.

(2) On June 23, 1972, the two Lopez boys tampered with the lock of another tenant.

(3) On July 8, 1972, the New York police were called on a complaint that Thomas Lopez, Sr., was ...


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