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VIALEZ v. NEW YORK CITY HOUSING AUTH.

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.

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 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.


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