The opinion of the court was delivered by: Carol Robinson Edmead, 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 Craig Yancey ("Petitioner") moves for an order and judgment, pursuant to Article 78 of the CPLR: (1) annulling and vacating the determination of respondent New York City Housing Authority (the "Housing Authority") to terminate Petitioner's tenancy; (2) ordering the Housing Authority to reinstate Petitioner's tenancy, or in the alternative, pursuant to Housing Authority regulations, reopening the underlying termination of tenancy hearing to afford petitioner a reasonable opportunity to present and defend fair case prior to any termination of his tenancy; (3) declaring the Housing Authority's determination terminating Petitioner's tenancy arbitrary and capricious, contrary to law, an abuse of discretion and in violation of Petitioner's constitutional right to procedural due process; (4) granting Petitioner a preliminary stay pending final determination of all issues raised in this Article 78 proceeding of the Housing Authority or any marshal of the City of New York from taking any action with respect to the termination of Petitioner's tenancy or the eviction of Petitioner from his apartment; (5) granting Petitioner a temporary restraining order pending any decision on the above request for a preliminary stay; awarding Petitioner costs and disbursements against the respondents pursuant to CPLR § 8101; and awarding Petitioner reasonable attorneys fees.
In 1972, Petitioner's mother, Sharon Yancey ("Ms. Yancey"), became the tenant of record for the apartment located at 505 East 120th Street, Apartment 13A, New York, New York 10035, also known as the Wagner Houses, a public housing project located in the County, City and State of New York, which is operated by the Housing Authority (the "Apartment"). Ms. Yancey resided in the apartment with Petitioner, Petitioner's brother, Lydell, and Ms. Yancey's granddaughter, Whitney Beadwiley.
After the other members of the household left the apartment, Petitioner succeeded to the lease in July 1997 and was the sole authorized occupant of the apartment.
Petitioner is 38 years old and has resided at the Wagner Houses for over 33 years, since he was five years old. According to the New York City Housing Authority Social Services Department, Petitioner is mentally disabled and has learning disabilities. Specifically, Petitioner suffers from schizoaffective disorder with depressed mood, avoidant personality disorder, obsessive compulsive personality disorder, paranoid personality disorder, and attention-deficient hyperactivity disorder. However, he attends an outpatient psychiatric clinic and takes medication for his condition. Petitioner also suffers from sciatica and is on public assistance.
Respondents allege that during the period between February 18 and August 19, 2003, Petitioner conspired with drug traffickers to sell narcotics. In furtherance of that conspiracy, Petitioner sold heroin on the same block as his building on April 29, 2003. Initially, on June 21, 2004, the police arrested Petitioner for, among other charges, criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree. Petitioner pleaded guilty to criminal sale of a controlled substance in the fourth degree, and the criminal court sentenced him to nine months incarceration. On June 28, 2005, the date Petitioner was to be sentenced in his criminal drug case, the police arrested him for conspiracy in the second degree. Petitioner pleaded guilty to conspiracy in the second degree, and the criminal court sentenced him to one to three years incarceration. Petitioner served fifteen months.
During that time, Petitioner kept current with his rent.
Petitioner asserts that since his release, he has been substance-free, and compliant with his prescription medication and curfew.
Pursuant to the Housing Authority's procedures, the Manager sent Petitioner several letters advising him she was considering terminating his lease for non-desirability and breach of rules and regulations, and offered him multiple opportunities to meet with management. After Petitioner failed to appear for any of the meetings, the Manager informed Petitioner in writing that she was forwarding Petitioner's tenancy record to the Operations Services Tenancy Administration Division for the preparation of charges. The Manager also informed Petitioner he would have an opportunity for a hearing and he was entitled to be represented by an attorney.
By notice and specification of charges, dated August 10, 2006, the Housing Authority charged Petitioner with the following:
1. On or about JUNE 28, 2005, or sometime prior there to, you CRAIG YANCEY, tenant of record, individually or in concert with others did engage in a conspiracy
a) to unlawfully possess a controlled substance, to wit, heroin;
b) to unlawfully possess a controlled substance, to wit, heroin,; and
c) did unlawfully sell a controlled substance, to wit, heroin.
2. On or about JUNE 21, 2004, or sometime prior there to, you, CRAIG YANCEY, tenant of record,
a) did unlawfully possess a controlled substance;
b) did unlawfully possess a controlled substance with intent to sell it;
c) did unlawfully sell a controlled substance;
d) did unlawfully possess a forged instrument; and
e) did unlawfully possess marijuana.
BREACH OF RULES AND REGULATIONS IN THAT:
3. You CRAIG YANCEY, tenant of record, failed to refrain from illegal or other activity....[as required by his lease obligations].
The notice informed Petitioner the determination may result in his eviction and, if he desired to contest the charge, he could reply to the notice, appear at the hearing, and be represented by counsel.
After Hearing Officer Ester Tomicic Hines ("Hearing Officer") adjourned the hearing first for Petitioner to retain counsel and then, after Petitioner was unsuccessful in doing so, on Petitioner's application that he be evaluated for the appointment of a guardian ad litem, the hearing commenced on August 10, 2007.
Petitioner appeared with his guardian ad litem. At the outset of the hearing, Petitioner's guardian ad litem admitted the charges for non-desirability based on Petitioner's: (1) unlawful sale of heroin on or about June 28, 2005 or some time prior thereto; and (2) unlawful sale of a controlled substance on or about June 21, 2004 or some time prior thereto.
The Housing Authority introduced: (1) Petitioner's lease setting forth his obligation to refrain from any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the development by other residents or by Housing Authority employees or any violent or drug-related criminal activity; (2) the arrest report, which shows that Petitioner sold heroin and the police arrested him for, among other charges, criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree on June 21, 2004 and the transcript from the plea proceeding and the certificate of disposition stemming from Petitioner's June 21, 2004 arrest, which show that Petitioner pleaded guilty to criminal sale of a controlled substance in the fourth degree and the criminal court sentenced him to nine months incarceration; and (3) the arrest report, which shows that Petitioner conspired with drug traffickers and that the police arrested him for conspiracy in the second degree on June 28, 2005, and the transcript from the plea proceeding and the ...