The opinion of the court was delivered by: Sharon E. Grubin, United States Magistrate Judge:
Defendants seek summary judgment dismissing plaintiff's
claims. The motion is granted in part and denied in part.
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.
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
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 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
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
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).
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
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.