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VIALEZ v. NEW YORK CITY HOUSING AUTH.

United States District Court, Southern District of New York


June 18, 1991

ANA VIALEZ, PLAINTIFF,
v.
THE NEW YORK CITY HOUSING AUTHORITY, EMANUEL POPOLIZIO, INDIVIDUALLY AND IN HIS CAPACITY AS CHAIRMAN OF THE NEW YORK CITY HOUSING AUTHORITY, DEFENDANTS.

The opinion of the court was delivered by: Sharon E. Grubin, United States Magistrate Judge:

OPINION

Defendants seek summary judgment dismissing plaintiff's claims. The motion is granted in part and denied in part.

BACKGROUND

Plaintiff is a resident of the Castle Hill Houses, a housing project in the Bronx administered by the New York City Housing Authority. She lives in an apartment with her twenty-two-year-old daughter who is unemployed and supported by public assistance. According to plaintiff's affidavit, at all times relevant hereto, she was unable to speak and read English but able to both speak and read Spanish.*fn1 On or about November 10, 1988, plaintiff received a Housing Authority "Notice" of a tenancy termination hearing to be held before a hearing officer on December 8, 1988. Plaintiff contends that the Notice was written solely in English; defendants, however, contend that the one-page form was in English on one side of the paper and in Spanish on the other. On the bottom of the English side of the page are the words "VEA AL DORSO," meaning SEE BACK. The Notice reads, inter alia:

    At the hearing you may appear in person with
  such witnesses as you may desire, AND BE
  REPRESENTED BY COUNSEL OR OTHER REPRESENTATIVES OF
  YOUR CHOICE. If you desire legal representation and
  cannot afford a lawyer, it is suggested that you
  contact one of the agencies which provide free
  legal services. A copy of the procedures covering
  these proceedings is enclosed for your information.

    IT IS IMPORTANT THAT YOU REALIZE THAT THIS
  HEARING WILL BE THE ONLY OPPORTUNITY TO BE

  HEARD, THAT THE DETERMINATION BASED THEREON MAY
  RESULT IN YOUR EVICTION, AND THAT SUCH
  DETERMINATION MAY NOT BE CHALLENGED IN
  LANDLORD-TENANT COURT. ACCORDINGLY, IF YOU DESIRE
  TO CONTEST THE ABOVE CHARGES, YOU MUST REPLY TO
  THIS NOTICE AND APPEAR AT THE HEARING. OTHERWISE,
  YOU WILL BE DEEMED TO HAVE WAIVED YOUR RIGHT TO
  SUCH HEARING.

Attached to the notice of hearing was a "Specification of Charges" dated August 31, 1988. That form specified that the charge against plaintiff was "CHRONIC DELINQUENCY IN THE PAYMENT OF RENT, in that you have repeatedly failed to pay your rent when due." The document went on to list, for a nine-month period, the dates plaintiff's rent had been due and the later dates that the rent had been paid. It is undisputed that this Specification of Charges was written solely in English.

The parties dispute whether the Notice and the Specification of Charges were accompanied by a copy of the Housing Authority's "Termination of Tenancy Procedures." Defendants claim the procedures form was attached, while plaintiff claims she did not receive the four-page form.*fn2

Although plaintiff claims herein that she did not understand the Notice and Specification of Charges forms because they were in English, she appeared at the Housing Authority's offices as scheduled on December 8, 1988.*fn3 On that date the hearing was adjourned until January 17, 1989, when it was adjourned again to February 22, 1989 at which time it was held.*fn4 At the hearing plaintiff was provided with an interpreter and proceeded pro se. The charges were read to her in Spanish by the interpreter.*fn5 Plaintiff admitted that she paid her rent late, but claimed she did so because she lost one of her customers in her housekeeping business. Plaintiff had brought with her records of her income.

On February 28, 1989, the hearing officer rendered a decision terminating plaintiff's tenancy.*fn6 The Members of the Housing Authority unanimously confirmed the hearing officer's decision and sent a copy of their "Determination," dated March 15, 1989, to plaintiff.*fn7 Both the hearing officer's decision and the Authority's determination confirming it were in English only.

Plaintiff did not seek an appeal of the Housing Authority's determination. She apparently did nothing about her case until August 1989 when she received a holdover petition from the Bronx Housing Court that was issued as an automatic result of the Authority's determination. At that time she sought the help of Bronx Legal Services. With the help of counsel she applied to the Housing Authority in September 1989 to reopen the hearing, arguing that her circumstances had changed in that she had been paying her rent timely since July. The application to reopen was denied. Plaintiff did not seek an appeal of that denial or seek any other redress in the state courts. Rather, she brought the instant action under 42 U.S.C. § 1983 claiming violation of her federal civil rights. Defendants have agreed to stay eviction proceedings pending this action.*fn8

Plaintiff pleads the following eight claims herein: (1) defendants' failure to recertify and adjust plaintiff's rent when notified by plaintiff of a change in her income violated her due process rights under the fourteenth amendment to the Constitution, in that defendants failed to follow their own regulations by timely lowering her rent; (2) defendants' failure to recertify and adjust plaintiff's rent violated 42 U.S.C. § 1437a, known as the Brooke Amendment to the United States Housing Act of 1937; (3) defendants' failure to provide plaintiff with notice of the charges against her or any notice in Spanish violated her fourteenth amendment right to due process; (4) defendants' failure to provide plaintiff with notice of the charges against her in Spanish violated 42 U.S.C. § 2000d et seq., 42 U.S.C. § 3604 and 24 C.F.R. § 1.4; (5) defendants' failure to provide plaintiff with the decision of the hearing officer in Spanish violated her fourteenth amendment right to due process; (6) defendants' failure to provide plaintiff with the decision of the hearing officer in Spanish violated 42 U.S.C. § 2000d et seq., 42 U.S.C. § 3604 and 24 C.F.R. § 1.4; (7) defendants' failure to provide plaintiff with notice of her right to appeal the hearing officer's decision violated her fourteenth amendment right to due process; (8) the hearing officer's failure to conduct a fair hearing, in that he did not fix the issues in the proceeding; examine witnesses and direct witnesses to testify; elicit and develop all relevant evidence; develop a complete record; and determine all relevant issues, violated 24 C.F.R. § 2.63 and the due process clauses of the United States and New York Constitutions. Plaintiff seeks declaratory and injunctive relief. She also seeks reimbursement of alleged rent overcharges, as well as attorneys' fees and expenses of this action.

DISCUSSION

I.

Under Rule 56(c) of the Federal Rules of Civil Procedure a motion for summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing out that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The nonmoving party then must meet a burden of coming foward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. at 2552.

The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion," Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). But the court is to inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), and to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative, id. at 249-50, 106 S.Ct. at 2510-11; Knight v. U.S. Fire Insurance Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1295, 94 L.Ed.2d 151 (1987). To determine whether the nonmoving party has met his or her burden, the court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of the summary judgment motion. See, e.g., Knight v. U.S. Fire Insurance Co., 804 F.2d at 11-12.

Once the nonmoving party has successfully met the burden of establishing the existence of a genuine dispute as to an issue of material fact, summary judgment must be denied unless the moving party comes forward with additional evidence sufficient to satisfy his or her ultimate burden under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. at 330 & n. 2, 106 S.Ct. at 2556 & n. 2 (Brennan, J., dissenting). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)); see also Weg v. Macchiarola, 654 F. Supp. 1189, 1191-92 (S.D.N.Y. 1987).

II.

Recovery under 42 U.S.C. § 1983 is premised upon a showing that the defendants have denied the plaintiff a federal constitutional or statutory right under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir. 1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986). The touchstones of due process are notice and an opportunity to be heard. Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Rockland Medi-labs, Inc. v. Perales, 719 F. Supp. 1191, 1199 (S.D.N.Y. 1989). See also Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965); Patterson v. Coughlin, 761 F.2d at 890.

However, if a plaintiff had an opportunity to contest a defendant's actions but failed to do so, there can be no claim for violation of his or her procedural due process rights under 42 U.S.C. § 1983. Marino v. Ameruso, 837 F.2d 45 (2d Cir. 1988); Tall v. Town of Cortlandt, 709 F. Supp. 401, 408 (S.D.N.Y. 1989). Moreover, an unauthorized property deprivation under color of state law does not give rise to a § 1983 constitutional claim where the state provides a post-deprivation remedy adequate to meet the due process requirements of the Constitution. Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420 (1981); overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Barrett v. United States, 651 F. Supp. 615, 620 (S.D.N.Y. 1986). Although one need not exhaust state remedies before bringing a § 1983 action claiming a violation of due process, see Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), one must nevertheless show that state procedural remedies are inadequate. See Marino v. Ameruso, 837 F.2d at 47. Thus, where a plaintiff alleges deprivation of property in violation of the due process clause, the federal court's initial inquiry must be whether the state has provided adequate remedies to redress such unlawful acts. If so, there will be no claim before the federal court, whether or not the plaintiff took advantage of the state procedure. See Rosa R. v. Connelly, 889 F.2d 435, 438-89 (2d Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 3225, 110 L.Ed.2d 671 (1990); Campo v. New York City Employees' Retirement System, 843 F.2d 96, 101 (2d Cir.), cert. denied, 488 U.S. 889, 109 S.Ct. 220, 102 L.Ed.2d 211 (1988); Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 888 (2d Cir. 1987); Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir.), cert. denied, 469 U.S. 932, 105 S.Ct. 328, 83 L.Ed.2d 265 (1984); Menon v. Utica Estates Co., No. 86 Civ. 7613 (CSH), slip op. at 4 (S.D.N.Y. Nov. 2, 1989) (1989 WL 135268) (1989 U.S.Dist.Lexis 13126); Drogan v. Ward, 675 F. Supp. 832, 837 (S.D.N.Y. 1987). Indeed, "[i]f the state provides an adequate alternative remedy the loss of property is not without due process of law. The existence of the alternative remedy supplies the `due process' and there is no `deprivation' of a property interest by the state." Bates v. N YC. Transit Authority, 721 F. Supp. 1577, 1581 (E.D.N Y 1989), citing Parratt v. Taylor, 451 U.S. at 543-44, 101 S.Ct. at 1916-17; see also Katz v. Klehammer, 902 F.2d 204, 207 (2d Cir. 1990); Campo v. New York City Employees' Retirement System, 843 F.2d at 100-03; Tall v. Town of Cortlandt, 709 F. Supp. at 408; Drogan v. Ward, 675 F. Supp. at 837.

It is undisputed that a proceeding under N.Y.Civ.Prac.L. & R. § 7803 (McKinney 1981) ("Article 78") is available to obtain relief in the state courts from an unconstitutional or otherwise unlawful determination of an administrative agency like that alleged of the Housing Authority herein.*fn9 See Katz v. Klehammer, 902 F.2d at 207; Campo v. New York City Employees' Retirement System, 843 F.2d at 101; Giglio v. Dunn, 732 F.2d at 1135; Liotta v. Rent Guidelines Board, 547 F. Supp. 800, 802 (S.D.N.Y. 1982); see also Mangine v. New York City Housing Authority, 140 A.D.2d 523, 528 N.Y.S.2d 416 (2d Dep't. 1988) (review of determination terminating tenancy in housing project); Chase v. Binghamton Housing Authority, 91 A.D.2d 1147, 458 N.Y.S.2d 960 (3d Dep't. 1983) (same). In Giglio v. Dunn, supra, the plaintiff claimed that he had been denied due process when he was coerced to resign from his position as a high school principal without a "precoercion hearing." The Second Circuit upheld the district court's conclusion that an Article 78 proceeding after the resignation would have been "adequate to satisfy the requisites of due process" and explained:

  Article 78 of N.Y.Civ.Prac.Law, which is an
  amalgam of the common law writs of certiorari to
  review, mandamus, and prohibition, made available
  to Giglio both a hearing and a means of redress.
  . . . For reasons best known to his attorney,
  appellant abjured this readily available remedy,
  preferring to base his claim on an alleged due
  process right to a pre-coercion hearing. . . .

  Where, as here, Article 78 gave the employee a
  meaningful opportunity to challenge the
  voluntariness of his resignation, he was not
  deprived of due process simply because he failed
  to avail himself of the opportunity.

732 F.2d at 1134-35.

  In Alfaro Motors, Inc. v. Ward, supra, a tow car company
brought a § 1983 action against the City of New York, alleging
that the city's failure to give a prompt administrative

hearing to review the denial of plaintiff's application for
tow car medallions deprived it of due process. The Second
Circuit held otherwise:

    . . [I]t cannot be said that appellants were
  deprived of property without due process of law.
  In reviewing state administrative proceedings, it
  is the function of the federal courts to
  determine only whether the state has provided
  adequate avenues of redress to review and remedy
  arbitrary action. . . . Section 1983 is not a
  means for litigating in a federal forum whether a
  state or local administrative decision was
  arbitrary and capricious . . . [O]ur inquiry is
  satisfied by noting that adequate state
  procedures, sufficient to protect appellants'
  claimed property interest, such as a New York
  State Article 78 proceeding . . . were available
  to appellants.

814 F.2d at 888 (citations omitted).

In a decision one year later, Campo v. New York City Employees' Retirement System, supra, the Second Circuit reaffirmed its above conclusions when the widow of a New York City employee was denied a survivor's benefit under her husband's pension by the New York City Employees' Retirement System ("NYCERS"). The agency had denied the benefit without any hearing apparently because the New York City Administrative Code does not require one. The widow brought a § 1983 action in this court claiming that, by failing to grant her a hearing, NYCERS had deprived her of property without due process of law in violation of the fourteenth amendment. The Second Circuit affirmed the dismissal of the action, explaining that the plaintiff's challenge to the adequacy of the procedures regularly used by NYCERS was something she could have argued to an Article 78 court:

    In Solnick v. Whalen, 49 N.Y.2d 224,
  401 N.E.2d 190, 425 N.Y.S.2d 68 (1980), the Court of Appeals
  of New York noted that an Article 78 proceeding was
  available to challenge procedures used to revise
  Medicaid reimbursement rates. In Solnick, Judge
  Jones wrote that such a challenge is "available as
  a question for review in such a proceeding under
  the third question authorized by CPLR 7803 —
  whether the `determination was made in violation of
  lawful procedure [or] was affected by an error of
  law'." . . . If the record before the Article 78
  court demonstrates a lack of appropriate procedure,
  the Article 78 court has the authority and
  seemingly the duty to order the agency to conduct a
  proper hearing, regardless of the type of
  substantive claim involved. . . . Thus, if Mrs.
  Campo had timely sought Article 78 review, a New
  York court would have had the authority to remand
  this case to NYCERS for an appropriate
  administrative proceeding.

843 F.2d at 101.

Liotta v. Rent Guidelines Board for the City of New York, supra, was an action in this court seeking to enjoin enforcement of an order of the Rent Guidelines Board for the City of New York. The plaintiffs contended that the meeting of the board at which the order was adopted was so dominated by a loud, angry and threatening audience that no rational deliberations on the order could have been had. Judge Conner found no claim had been stated:

    Plaintiffs' action cannot be sustained in this
  Court. Assuming without deciding that plaintiffs
  have satisfied the other requirements for stating
  a claim under § 1983, the Article 78 proceedings
  that exist under this regulatory framework satisfy
  the requirements of procedural due process. Article
  78 proceedings provide for speedy review of
  administrative action and thus serve as an integral
  part of the regulatory process, rather than as a
  source of separate judicial review. Plaintiffs
  cannot complain that due process has been denied
  them when they have rejected the state procedure
  that is available to them for correcting the
  alleged procedural deficiency. If due process were
  denied every time an agency official made a
  decision under questionable circumstances, any
  losing party to the decision could attack it
  indirectly by suing the agency under § 1983. . . .
  Plaintiffs cannot manufacture a § 1983 claim by
  pointing to the allegedly defective meeting while
  ignoring that part of

  the regulatory process that serves to redress
  administrative error. Rather, in considering
  whether defendants have failed to afford
  plaintiffs due process in connection with the
  rent guidelines, the Court evaluates the entire
  procedure, including the adequacy and
  availability of remedies under state law.

547 F. Supp. at 801-02. In a later recent case, Menon v. Utica Estates Co., slip op., No. 86 Civ. 7613 (CSH) (S.D.N.Y. Nov. 2, 1989) (1989 WL 135268) (1989 U.S.Dist.Lexis 13126), Judge Haight in another context reached the same conclusion:

  It is not the proper function of the federal
  district courts, courts of limited jurisdiction,
  to review all state judicial or administrative
  proceedings, even if a plaintiff's federal claims
  are clothed in constitutional due process
  language. Where a plaintiff alleges deprivation
  of property by state authorities in violation of
  the Due Process Clause, the federal court's
  inquiry is limited to determining "whether the
  state has provided adequate avenues of redress to
  review and remedy arbitrary action." . . . In the
  case at bar, appeals and proceedings under
  Article 78, N.Y. CPLR, were available to
  plaintiff. In these circumstances, plaintiff has
  no viable claim under the federal civil rights
  statutes.

Slip op. at 4 (citations omitted).

Plaintiff here maintains that the availability of review in an Article 78 court should not preclude this action because she was unaware that she had that opportunity for review. Of all the documents sent to plaintiff by the Housing Authority in connection with her proceeding, it is only the "Termination of Tenancy Procedures" — which was to accompany the original "Notice" and "Specification of Charges" — that informs a tenant of the availability of review of an adverse administrative decision.*fn10 As mentioned earlier, according to plaintiff, the Procedures leaflet was not included with the Notice and Specification of Charges she received. Accepting that representation as true, it is, nevertheless, irrelevant because plaintiff also states that, as the Procedures are only printed in English, she could not have understood them and, moreover, that the relevant language in the Procedures (set forth in footnote 10, supra) is so incomprehensible to a layperson that she would not have understood it in Spanish. Defendants note that the Notice reads, "A copy of the procedures covering these proceedings is enclosed for your information," and assert that if plaintiff did not receive the enclosure she should have asked for it. Plaintiff counters by asserting that, because the Notice was in English only, she could not read it to learn that the procedures were supposed to have been enclosed. However, she also maintains that the Notice affirmatively misled her to believe that she had no right to appeal by the following language:

    IT IS IMPORTANT THAT YOU REALIZE THAT THIS
  HEARING WILL BE THE ONLY OPPORTUNITY TO BE HEARD,
  THAT THE DETERMINATION BASED THEREON MAY RESULT
  IN YOUR EVICTION, AND THAT SUCH DETERMINATION MAY
  NOT BE CHALLENGED IN THE LANDLORD-TENANT COURT.

Plaintiff's position in this regard appears disingenuous and casts further doubt on her claim of having been unable to read English; surely, if she were able to read this one portion of the Notice which allegedly misled her, she should have been able to read other portions of both this document and the other documents.

In any event, based upon the authorities discussed earlier, it is apparent that the first question to be resolved herein is whether plaintiff had a constitutional right to receive notice of her right to appeal the Housing Authority's determination through an Article 78 review. All her claims of the unconstitutionality of her hearing and of the circumstances surrounding that hearing rise or fall upon the answer to this question, because it is quite clear that these claims could and should have been raised in an Article 78 proceeding.*fn11 Plaintiff avers, however, that because she was never adequately informed by defendants that she had the opportunity to appeal, she remained unaware of it until after the time limitation period had run (see footnote 8, supra). If plaintiff had a constitutional right to be told of her opportunity for review, her due process claims herein remain viable; if, however, she were not entitled to notice of a right to appeal, her failure to raise her claims to the state courts through Article 78 remains unexcused and this court cannot entertain such claims in this action.

Research reveals that, faced with the question, courts have uniformly found a plaintiff claiming a due process entitlement to specific notice of the right to appeal unable to demonstrate a legally sound argument. In Bennett v. Director, Office of Workers' Compensation Programs, 717 F.2d 1167 (7th Cir. 1983), for example, a petitioner sought review of a decision of the United States Department of Labor Benefits Review Board ("BRB") which dismissed as untimely his appeal of an administrative law judge's decision denying him benefits under the Black Lung Benefits Act. Under the Department of Labor's regulations, a claimant had thirty days within which to appeal. Petitioner argued that his failure to have appealed within that time period should be excused because he did not receive notice of his appeal rights, and, therefore, he was not aware of the time limitation. The Seventh Circuit rejected the contention:

Although this regulation does not require the ALJ's decision to include a notice of appeal rights, the petitioner argues that such a notice should be included, based on general principles of fairness. He points out that black lung claimants commonly have little education and cannot reasonably be expected to be aware of the contents of either the Federal Register or the Code of Federal Regulations. . . .

    We recognize that it may be difficult for an
  unrepresented black lung claimant to understand
  his appeal rights. However, the petitioner has
  cited no authority, and we have found none, that
  would permit the time limits for appeal to the
  BRB to be waived in cases like the one at bar.

    It has long been established that publication
  of regulations in the Federal Register has the
  legal effect of constructive notice of their
  contents to all who are affected thereby. . . .
  The United States Supreme Court has stated that
  such regulations are binding "regardless of
  actual knowledge of what is in the Regulations or
  of the hardship resulting from ignorant
  innocence."

717 F.2d at 1169 (citations omitted). Similarly, in Childress v. Small Business Administration, 825 F.2d 1550 (11th Cir. 1987), the Eleventh Circuit, in a case involving cancellation of a loan by the Farmers Home Administration, stated (in dicta):

  Under the regulations, the Childresses had a
  right to appeal this decision and the federal
  parties did not advise them of this right, either
  orally or in writing.

    We know of no case, however, which holds that
  minimum due process requires that the parties not
  only be given a notice and hearing but also that
  they be specifically advised of their right to
  appeal.

  In any event, we need not hold that minimum due
  process does not include such a right to notice
  but only recognize, as we must [to determine the
  issue of qualified immunity] that such a right
  has not been clearly established as a
  constitutional minimum.

825 F.2d at 1553. See also Arzanipour v. I.N.S., 866 F.2d 743 (5th Cir.), cert. denied, 493 U.S. 814, 110 S.Ct. 63, 107 L.Ed.2d 30 (1989); Culbreath v. Block, 799 F.2d 1248, 1250 (8th Cir. 1986); Hunley v. Director, Office of Workers' Compensation Programs, 751 F.2d 385 (6th Cir. 1984).

  Plaintiff relies on Escalera v. New York City Housing
Authority, 425 F.2d 853, 866 (2d Cir.), cert. denied,
400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970), in contending that "an
Article 78 proceeding would not be a substitute for fair
procedures in the [public housing] decision in the first
instance." But those Housing Authority procedures which
plaintiff here was indisputably afforded appear to have been
established in large part as a result of the Escalera decision.
Escalera involved eviction and penalty proceedings instituted
by the Housing Authority as a result of various alleged acts by
the plaintiff tenants. At the time of the case, tenancies were
being terminated without the procedural safeguards we take for
granted today. Thus, tenants were not provided with notice of
the charges, opportunity for confrontation and
cross-examination of witnesses, an impartial hearing officer, a
transcript of the hearing or a written decision. It was these
and other basic inadequacies in the administrative proceeding
which the Second Circuit ruled an Article 78 proceeding would
not cure. The procedures with which plaintiff here was provided
included those designed to remedy the inadequacies found in
Escalera.*fn12 See Simmons v. Popolizio, 160 A.D.2d 368, 553
N YS.2d 422 (1st Dep't), appeal granted, 76 N.Y.2d 712, 563
N YS.2d 768, 565 N.E.2d 517 (1990). The Escalera court did
not require the type of relief sought by plaintiff here.
Indeed, the Second Circuit, eighteen years after it decided
Escalera, decided Campo v. New York City Employees' Retirement
System, supra, which, as discussed earlier, holds that the mere
availability of Article 78 proceedings is sufficient to satisfy
due process requirements lacking at the administrative stage.
In so holding, the court distinguished its own decision in
Escalera:

    . . Escalera focused on pre-deprivation
  procedures and did not discuss whether the Article
  78 court could have been asked to remand the case
  to the [Housing Authority] for an administrative
  proceeding in a post-denial context to be conducted
  in full accord with procedural due process
  standards, and therefore does not affect the
  outcome of this case.

    In the light of those authorities we hold that
  the State of New York, through Article 78,
  offered to Mrs. Campo a due process hearing at a
  meaningful time and in a meaningful manner.

843 F.2d at 102-03 (footnote omitted).

  Plaintiff also relies on Ellender v. Schweiker, 575 F. Supp. 590
 (S.D.N.Y. 1983), the only decision which appears to lend a
small bit of support to plaintiff's claim. That case, however,
involved far different circumstances from this one. Ellender
was a class action in which the defendant, the Secretary of the
Department of Health and Human Services, had sought to recover
overpayments of Supplemental Security Income (SSI) that had
mistakenly been made to plaintiffs. Plaintiffs were all persons
who were currently receiving old-age, survivors and disability
income ("OASDI") from defendant and who had also received
alleged SSI overpayments. Defendant, in his attempt to recover
the SSI overpayments, had sent to some of these persons a
notice requesting repayment of the

overpayment, permitting the recipient to authorize withholding
of OASDI benefits to repay the SSI overpayment and informing
the recipient of his or her rights to waiver and appeal. This
notice was followed by a second one which, for many of the
recipients, was the first and only one received and which
merely recited the amount of overpayment due, asked for its
refund immediately and explained that if full payment could
not be made at that time the balance could be withheld from
the recipient's OASDI benefits. This notice did not state that
recipients could have a hearing and that the alleged amount of
overpayment was subject to waiver and appeal. For those who
received only this notice, there was simply an amount
allegedly owed, and, although there had been no hearing, a
demand for repayment. It left recipients with the
understanding that they had a choice only of either repaying
in full at that time or authorizing withholding from OASDI.
Judge Cooper held that these recipients had been misled and,
without being afforded a hearing, they were denied any
opportunity to present their objections or otherwise challenge
the Secretary's determinations. Thus, it was in light of the
lack of any hearing in the first instance that the court held
that, without notice of waiver and appeal rights, "plaintiffs
would be denied all opportunity to present their objections."
575 F. Supp. at 603. The situation here, of course, is quite
different. Plaintiff admits receiving notice of her hearing
and of being afforded an interpreter who, the record shows,
explained the charges against her in Spanish and translated
the full hearing. It is undisputed that the hearing officer
apprised her of her rights to counsel, to testify on her own
behalf, to call witnesses and to present evidence.

Similarly, in McNair v. New York City Housing Authority, 613 F. Supp. 910 (S.D.N.Y. 1985), also cited by plaintiff, the plaintiffs had been denied an entitlement simply on the basis of an interview that had none of the procedural safeguards attendant to hearings, such as the rights to counsel, confrontation and cross-examination. It was, again, in the absence of a hearing that the court held plaintiffs should have been informed that there existed a means for review. Moreover, the defendant in McNair was found to have affirmatively misled plaintiffs about their right to a hearing. In addition, this case was decided as a matter of statutory, not constitutional, law (United States Housing Act, 42 U.S.C. § 1437d(c)(3)).

  Plaintiff, in attempting to distinguish some of the cases
relied on by the defendants, argues that "the fact that Ms.
Vialez is indigent and does not read or understand English,
unquestionably requires different conclusions as to whether
due process principles were violated." Letter from plaintiff's
counsel dated April 18, 1990 at 6-7. However, plaintiff has
not provided any relevant authority for her proposition. To
the contrary, the cases hold that in similar situations the
Constitution does not require the government to take into
account a person's language or education in determining what
process is due. For example, in Commonwealth v. Olivo,
369 Mass. 62, 337 N.E.2d 904 (1975), the defendants, who were
unable to read English, had failed to comply with condemnation
notices. The Massachusetts Supreme Judicial Court held that
such English-only notices violated neither due process nor
equal protection and that, upon receipt of the notices,
defendants were on "inquiry notice" to find out their meaning:

      . . [W]e believe that in-hand service of an
  official order by a constable was sufficient to
  put a reasonable person on notice that the order
  was important and, if not understood, required
  translation. Moreover, such translation would
  have provided the defendants with actual
  knowledge of the importance of the order and of
  their obligations thereunder. Finally, the nature
  of the defendants' disability, here the inability
  to read English, was not such as would render
  them incapable of understanding the need for
  further inquiry. Thus, we are of the opinion that
  the notice received by the defendants was
  constitutionally sufficient, and that bilingual
  notice was not constitutionally required.

337 N.E.2d at 909-10.*fn13 See also Soberal-Perez v. Heckler, 717 F.2d 36, 43 (2d Cir. 1983), cert. denied, 466 U.S. 929, 104 S.Ct. 1713, 80 L.Ed.2d 186 (1984) ("A rule placing the burden of diligence and further inquiry on the part of a non-English-speaking individual served in this country with a notice in English does not violate any principle of due process."); Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1075, 1077, appeal dismissed and cert. denied, 459 U.S. 806, 103 S.Ct. 30, 74 L.Ed.2d 45 (1982) ("The courts have recognized, whether explicitly or implicitly, that in an English-speaking country, requirements of `reasonable notice' are satisfied when the notice is given in English."); Hernandez v. Dep't of Labor, 83 Ill.2d 512, 48 Ill.Dec. 232, 235-36, 416 N.E.2d 263, 266-67 (1981) (unemployment insurance termination notices written only in English held constitutionally adequate, and, therefore, failure to seek timely review of termination was fatal to claim); Dalomba v. Director of Division of Employment Security, 369 Mass. 92, 337 N.E.2d 687, 689-91 (1975) (same); Guerrero v. Carleson, 9 Cal.3d 808, 109 Cal. Rptr. 201, 203-06, 512 P.2d 833, 835-38 (1973), cert. denied sub nom. Guerrero v. Swoap, 414 U.S. 1137, 94 S.Ct. 883, 38 L.Ed.2d 762 (1974) (welfare termination notices in English only held constitutional). See also Kuri v. Edelman, 491 F.2d 684 (7th Cir. 1974); Carmona v. Sheffield, 475 F.2d 738 (9th Cir. 1973); Nuez v. Diaz, 101 Misc.2d 399, 421 N.Y.S.2d 770, 773-74 (Sup.Ct. Monroe Co. 1979) (cases collected).

To accept plaintiff's contention that as a constitutional — rather than legislative — matter, plaintiff has a right to have certain documents written in Spanish would place an insurmountable and unjustified burden on the Housing Authority. The Housing Authority, which singly administers the largest number of public apartments in this country, would have to keep track of what language each of its tenants speaks and send correspondence specially translated into each language. In each case, the Authority would have to ensure that each tenant understood the notices received, despite language disabilities, physical handicaps like blindness and mental handicaps. If such were to be deemed a constitutional requirement, would tenants who were illiterate be entitled to oral notice? Due process can only require that which is reasonable in the circumstances. In the circumstances plaintiff found herself — upon receipt of the original Notice of Hearing and Specification of Charges, or at the time of her hearing when the interpreter read the charges to her and told her of her right to counsel, or upon receipt of the hearing officer's decision, or upon receipt of the Authority's final determination — it is not unreasonable to expect her, if she cannot read or understand, to seek out someone to translate the documents for her or to tell her what they mean.*fn14 However, it was not until she received the holdover petition and notice to vacate from Housing Court (which was also in English only) that she sought help from Bronx Legal Services. As the court stated in Commonwealth v. Olivo, supra:

    "English is the language of this country. This
  conception is fundamental in the administration
  of all public affairs." . . . This is not an
  officially multilingual country, and notification
  of official matters in the sole official language
  of both this nation and this Commonwealth
  [Massachusetts] is patently reasonable.

337 N.E.2d at 911 (citations omitted).

To be sure, those in this country for whom English is not a native tongue can face intense problems just in the daily chores of living, and for those also without the good fortune of a good education the pressures are far greater. Yet, it is not the role of the courts to resolve this societal situation by a strained, at best, construction of the Constitution. The New Jersey Supreme Court gave an apt description of numerous decisions in which courts have found the Constitution to require no more than English-only language:

    These holdings are not born of any lack of
  appreciation for the difficulties that
  non-English speaking people encounter in our
  society. Those difficulties are many and
  burdensome. It is doubtless true, especially in
  areas where there is a high density of
  non-English speaking population, that
  administrative and humanitarian considerations
  would warrant the use of bilingual documents. . .
  . But these salutary considerations by no means
  translate into a requirement, under procedural
  due process concepts, that the State adopt a
  policy mandating the use of such documents. The
  decision to provide translation, encompassing as
  it does the determination of when a translation
  should be provided, and to whom, and in what
  language, is one that is best left to those
  branches of government that can better assess the
  changing needs and demands of both the
  non-English speaking population and the
  government agencies that provide the translation.

Alfonso v. Board of Review, 444 A.2d at 1077. The Massachusetts Supreme Judicial Court expressed the same idea as follows:

    Whether the agency sending the notice knows, or
  has reason to know, that the recipient is not
  literate in English does not alter the rule as
  stated above. The law does not place a burden on
  government agencies to ascertain whether the
  recipient is able to read English, nor does it
  require that they communicate with those not
  literate in English in anything but the nation's
  official language, notwithstanding actual or
  constructive knowledge of such language
  deficiency. It might be appropriate and advisable
  for government agencies to give bilingual notice.
  . . . However, if such a burden on governmental
  function is desirable, it should be done by
  legislative action and with carefully delineated
  rules and guidelines. It is not appropriate for
  this court to enter so difficult and obscure an
  area without legislative mandate.

Commonwealth v. Olivo, 337 N.E.2d at 910 n. 6. See also Soberal-Perez v. Heckler, 717 F.2d at 43 ("Plaintiffs argue that notice in English to those with limited English abilities is a `mere gesture [which] is not due process'. . . . We do not agree.").

In sum, New York does provide an adequate avenue for appeal of a Housing Authority decision, and due process does not require that plaintiff have been sent notice of that opportunity to appeal. However, it might be noted that even if we were to hold that such a constitutional requirement exists, it would be unavailing to plaintiff in this case because the alleged failure of the Housing Authority to have sent her the Procedures which do advise of the right to appeal — even though in English only and in terminology difficult for some to understand — was a random, unauthorized act and plaintiff has made no showing that New York does not provide her with adequate remedies to have this alleged failure rectified. See Parratt v. Taylor, 451 U.S. at 541, 101 S.Ct. at 1916.

The New York State legislature or the Housing Authority perhaps could have devised more elaborate procedures which would have had the effect of forestalling the situation in which plaintiff currently finds herself. However, this court should not legislate. As plaintiff has failed to demonstrate the existence of any federal constitutional claims, the First, Third, Fifth, Seventh and Eighth Claims of the complaint shall be dismissed.

III.

    The next issue before the court is whether Title VI of the
  Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., required
  the original notice of the charges against plaintiff and the
  decision of the hearing officer to have been in Spanish.
  Section 2000d provides:

  No person in the United States shall, on the
  ground of race, color, or national origin, be
  excluded from participation in, be denied the
  benefits of, or be subjected to discrimination
  under any program or activity receiving Federal
  financial assistance.

Title VI proscribes only those classifications prohibited by the fourteenth amendment's equal protection clause or the right to equal protection incorporated into the fifth amendment by its due process clause. Regents of the University of California v. Bakke,
438 U.S. 265, 287, 98 S.Ct. 2733, 2746, 57 L.Ed.2d 750 (1978) (Powell, J., announcing judgment of the Court); id. at 325, 328, 98 S.Ct. at 2766, 2767 (Brennan, White, Marshall and Blackmun, JJ., concurring in the judgment in part and dissenting in part); Williamsburg Fair Housing Committee v. New York City Housing Authority, 493 F. Supp. 1225, 1244 n. 21 (S.D.N.Y. 1980); Bryan v. Koch, 492 F. Supp. 212, 230-31 (S.D.N.Y.), aff'd, 627 F.2d 612 (2d Cir. 1980); see Parent Ass'n of Andrew Jackson High School v. Ambach, 598 F.2d 705, 716 (2d Cir. 1979). Where governmental action disadvantages a suspect class or burdens a fundamental right, the conduct must be strictly scrutinized and will be upheld only if the government can establish a compelling justification for the action. See, e.g., Regents of the University of California v. Bakke, 438 U.S. at 299, 98 S.Ct. at 2752 (Powell, J., announcing judgment of the Court); San Antonio School District v. Rodriguez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 1287-88, 36 L.Ed.2d 16 (1973); Soberal-Perez v. Heckler, 717 F.2d at 41. Where a suspect class or a fundamental right is not implicated, the challenged action need only be rationally related to a legitimate governmental purpose. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976); Soberal-Perez v. Heckler, 717 F.2d at 41. While entitlement to low-income housing is not a fundamental right, Acevedo v. Nassau County, 500 F.2d 1078, 1080-81 (2d Cir. 1974), quoting Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972); Schmidt v. Boston Housing Authority, 505 F. Supp. 988, 996 (D.Mass. 1981), Hispanics as an ethnic group do constitute a suspect class for the purpose of equal protection analysis. Keyes v. School District No. 1, 413 U.S. 189, 197, 93 S.Ct. 2686, 2691, 37 L.Ed.2d 548 (1973); Hernandez v. Texas, 347 U.S. 475, 477-79, 74 S.Ct. 667, 669-671, 98 L.Ed. 866 (1954); Soberal-Perez v. Heckler, 717 F.2d at 41. However, the Housing Authority's failure to provide its documents to plaintiff in Spanish does not implicate a protected class. As the Second Circuit has stated:

  [T]he . . . failure to provide forms and services
  in the Spanish language does not on its face make
  any classification with respect to Hispanics as
  an ethnic group. A classification is implicitly
  made, but it is on the basis of language,
  i.e., English-speaking versus non-English-speaking
  individuals, and not on the basis of race, religion
  or national origin. Language, by itself, does not
  identify members of a suspect class. Frontera v.
  Sindell, 522 F.2d 1215, 1219-20 (6th Cir. 1975);
  Carmona v. Sheffield, 475 F.2d 738, 739 (9th Cir.
  1973).

Soberal-Perez v. Heckler, 717 F.2d at 41 (emphasis added). See also Garcia v. Gloor, 618 F.2d 264, 271 (5th Cir. 1980) (employer's English-only rule does not violate Title VII or 42 U.S.C. § 1981), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981); Guadalupe Organization, Inc., v. Tempe Elementary School District No. 3, 587 F.2d 1022, 1027 (9th Cir. 1978) (no right to bilingual education); Frontera v. Sindell, 522 F.2d 1215, 1218 (6th Cir. 1975) (English-only Civil Service exams do not violate Hispanic individuals' equal protection rights).

Soberal-Perez v. Heckler was an action on behalf of Hispanic individuals with limited abilities in the English language who had been denied Social Security benefits by the Secretary of Health and Human Services. They claimed that the denial was the result of the Secretary's failure to provide the forms and instructions in Spanish. They claimed relief under Title VI as well as under the due process and equal protection clauses. The Second Circuit found no basis for any of these claims for largely the reasons set forth in the quotation above. The court additionally wrote:

  It is not difficult for us to understand why the
  Secretary decided that forms should be printed
  and oral instructions given in the English
  language: English is the national language of the
  United States. . . . A decision to provide
  Spanish language services as well as English
  would merely shift the alleged discrimination to
  all other non-English-speaking groups.

717 F.2d at 42. The court then held that the Secretary's actions clearly bore a rational relationship to a legitimate governmental purpose:

  We need only glance at the role of English in our
  national affairs to conclude that the Secretary's
  actions are not irrational. Congress conducts its
  affairs in English, the executive and judicial
  branches of government do likewise. In addition,
  those who wish to become naturalized citizens
  must learn to read English. . . . Given these
  factors, it is not irrational for the Secretary
  to choose English as the one language in which to
  conduct her official affairs.

Id. at 42-43.

As in Soberal-Perez v. Heckler, although plaintiff's complaint claims that the Housing Authority's failure to provide documents in Spanish reflects a preference for English-speaking people over Hispanics, the Housing Authority's action reflects, at most, a preference for English over all other languages. Defendant is entitled to summary judgment on plaintiff's Title VI claim.

IV.

Plaintiff also contends that her tenancy was terminated in violation of the Fair Housing Act, 42 U.S.C. § 3601, et seq., Title VIII of the Civil Rights Act of 1968, because the notice and the hearing officer's decision were not provided in Spanish. We need not dwell long on this claim because it suffers from the same infirmity as the Title VI claim and must be dismissed as well. Under 42 U.S.C. § 3604(b), it is unlawful

  [t]o discriminate against any person in the
  terms, conditions, or privileges of sale or
  rental of a dwelling, or in the provision of
  services or facilities in connection therewith,
  because of race, color, religion, sex, familial
  status, or national origin.

"The Act is violated by `discriminatory actions, or certain actions with discriminatory effects, that affect the availability of housing.'" Huertas v. East River Housing Corp., 674 F. Supp. 440, 454 (S.D.N.Y. 1987), quoting Southend Neighborhood Improvement Ass'n v. County of St. Clair, 743 F.2d 1207, 1210 (7th Cir. 1984). Title VIII thus outlaws discrimination against persons in the same classifications protected under Title VI (race, color and national origin) and adds religion, sex and familial status as shielded classifications.

Again, however, plaintiff's allegations do not state a case of discrimination on the basis of any of these Congressionally-mandated categories, but rather on the basis of language. The "discrimination," if there be any, is against all non-English speaking tenants of the Housing Authority, including those who speak Chinese, Korean, Yiddish, Greek, Russian or any other language. All non-English speaking people are equally affected by English-only forms. There is no distinct impact on those of Hispanic origin. Plaintiff's demand for bilingual Housing Authority correspondence would place unfairly on all who spoke neither Spanish nor English the burden of which she here complains. The Housing Authority is landlord to about 180,000 apartments. The purpose of the Fair Housing Act is to provide "for fair housing throughout the United States." 42 U.S.C. § 3601. Nothing could be fairer than to apply the English language uniformly to all tenants of whatever national origin.*fn15

V.

The final issue for consideration is plaintiff's Second Claim: that, although notified by plaintiff that her income had decreased, the defendants failed to decrease the amount of plaintiff's rent during the relevant period in violation of 42 U.S.C. § 1437a, known as the Brooke Amendment to the Housing Act of 1937. This statutory provision sets a ceiling, keyed to monthly income, on the amount of rent to be charged low-income tenants in housing projects like the Castle Hill Houses that receive federal subsidies pursuant to regulations of the Department of Housing and Urban Development.

Contrary to defendants' contention, this claim is not foreclosed under 42 U.S.C. § 1983 by the existence of a state remedy, i.e., Article 78, because it alleges violation of a right secured by a federal statute rather than by the due process clause. See Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987); See also Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 110 S.Ct. 2510, 2516-18, 110 L.Ed.2d 455 (1990); West Virginia University Hospitals, Inc. v. Casey, 885 F.2d 11, 22 and n. 2 (3d Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 3213, 110 L.Ed.2d 661 (1990). In Wright v. Roanoke Redevelopment and Housing Authority, the Supreme Court specifically decided that public housing tenants have a private right of action in the federal courts under § 1983 for violations of the Brooke Amendment. See also Beckham v. New York City Housing Authority, 755 F.2d 1074, 1077 (2d Cir. 1985). Thus, "[i]t is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 481, 5 L.Ed.2d 492 (1961), overruled in part not relevant here, Monell v. New York City Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Whether plaintiff was improperly overcharged for her rent should be a fairly straightforward question of fact answerable on papers. However, the papers submitted do not appear to provide the answer. Accordingly, oral argument on this issue shall be scheduled for July 18, 1991 at 11:30 a.m. If trial on this issue is found necessary, it will be scheduled at that time. The parties shall cooperate before then in providing discovery if needed on this issue.

CONCLUSION

Defendants' motion for summary judgment is denied at this time on plaintiff's Second Claim and granted on all other claims.*fn16


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