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Gray v. Hernandez

November 25, 2008

IN THE MATTER OF THE APPLICATION OF SYBIL GRAY, PETITIONER, FOR A JUDGMENT PURSUANT TO CPLR ARTICLE 78 OF THE CIVIL PRACTICE LAW AND RULES,
v.
TINO HERNANDEZ, AS CHAIRMAN OF THE NEW YORK CITY HOUSING AUTHORITY, RESPONDENT.



The opinion of the court was delivered by: Walter B. Tolub, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Petitioner, Sybil Gray ("Gray" or "petitioner") moves, pursuant to CPLR Article 78, for a judgment reversing respondent New York City Housing Authority's ("NYCHA" or "the landlord") decision to terminate Gray's tenancy and for an order, inter alia, requiring that NYCHA grant Gray a new "termination of tenancy" hearing. In addition, Gray seeks an injunction staying the landlord from proceeding with a pending summary holdover proceeding in Housing Court. On June 23, 2008, this court granted a temporary restraining order staying the Housing Court proceeding.

In October, 2004, petitioner and her adult son moved into an apartment in Bayview Houses, an NYCHA public housing complex in Brooklyn. The monthly rent for the apartment was $495. In December, 2004, the Internal Revenue Service ("IRS") placed a lien against petitioner's paycheck and petitioner was left with less than $500 in salary per month as a result of the lien. It is undisputed that petitioner failed to pay rent from December, 2004 through May, 2005 when NYCHA instituted tenancy termination proceedings against petitioner based on allegations of chronic rent delinquency. Petitioner was served with notice of the hearing which advised her that she had the right to an attorney or other representative to assist her at the hearing. Petitioner attended the hearing without counsel and admitted to the non-payment. On August 24, 2005, the Impartial Hearing Officer ("IHO") issued an order terminating petitioner's tenancy.

Thereafter, in 2006, NYCHA initiated summary eviction proceedings against Gray. During the pendency of the summary eviction proceeding, Gray was referred to Adult Protective Services for a psychiatric evaluation which determined that Gray was suffering from, "Major Depressive Disorder, Single Episode, Severe Without Psychotic Features". The examining psychiatrist recommended, inter alia, the appointment of a guardian ad-litem ("GAL") to assist Gray in housing court. Once the GAL was appointed, NYCHA proceeded with the summary holdover proceeding. (Reply, Ex. F)

Moreover, during this period, petitioner applied for, and in December, 2006, she was granted Social Security disability benefits retroactive to March, 2006. The Social Security hearing officer found that Gray was suffering from a host of physical disabilities, and depression, which rendered her disabled. (Reply, Ex. G)

In October, 2007, petitioner's counsel requested that, in accordance with the decision in Blatch v. Hernandez, 360 F. Supp.2d 595 (S.D.NY 2005), NYCHA grant Gray a new termination of tenancy hearing because NYCHA failed to appoint a GAL to represent Gray at the original August, 2005 termination of tenancy hearing (Reply, Exs. J & K). NYCHA denied the request (Reply, Ex. L), and this Article 78 proceeding followed.

The petition alleges that the August, 2005, termination of tenancy hearing violated Blatch v. Hernandez, supra., and that respondent's May, 22, 2008 decision not to reverse the earlier decision was a further violation of Blatch because at the time of the termination of tenancy hearing in August, 2005, Gray's condition should have given rise to an evaluation to determine whether she required a guardian to assist her at that hearing. According to the petition, because NYCHA instituted proceedings against a mentally incapacitated tenant in violation of Blatch, the termination of tenancy hearing and the August, 2005 determination were improper. Petitioner alleges that NYCHA's failure to follow their own termination guidelines violated her federal and state due process rights; Title II of the Americans with Disabilities Act; Section 504 of the Rehabilitation Act of 1973 and the Fair Housing Act.

NYCHA's Termination of Tenancy Procedures

NYCHA is a governmental entity created to provide housing for low-income families in New York City. In accordance with its state and federal powers, NYCHA can take administrative action to terminate the tenancies of tenants who are chronically delinquent in the payment of their rent. The administrative procedures were developed to comply with the due process requirements set forth in Escalera v. New York City Housing Authority, 425 F.2d 853 (2nd Cir. 1970), cert. denied, 400 U.S. 853 (1970).

Chapter V, section VI of the NYCHA Management Manual discusses procedures to be followed by NYCHA in the event of a tenant's rent delinquency. Part VI (D)(3) states:

Since collection of rent is one of the most important functions of management staff, it is necessary to maintain a constant follow-up of delinquent accounts. At the first sign of rent delinquency, the tenants should be called into the office or interviewed at their apartments by the Housing Assistants in order to ascertain the reason for the delinquency. . . .

Problems contributing to the delinquency should be determined, and, where necessary, referrals made to the appropriate public or private social agencies. All interviews must be recorded in tenant folders . . . . (Ans., Ex. 3, Chapter V, p. 29)

Chapter VII of the NYCHA Management Manual which outlines the procedures related to termination of tenancy for, inter alia, chronic rent delinquency states that before considering referral of a chronic rent delinquency case, "the manager or Assistant manager must first interview the tenant in order to discuss the problem(s) . . . seek to ascertain the facts involved and, when ...


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