In this proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Richard F. Braun, J.], entered December 4, 2007), petitioner challenges the determination of respondent Housing Authority, dated February 28, 2007, terminating petitioner's public housing tenancy on the ground of nondesirability.
The opinion of the court was delivered by: Buckley, 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 Official Reports.
Luis A. Gonzalez, P.J., David Friedman, John T. Buckley, Dianne T. Renwick, JJ.
Petitioner entered into a residential lease agreement with respondent Housing Authority in May 2003 for an apartment in a public housing building where she and her two minor children have continuously resided. The lease specifically provides that tenant is obligated:
"To assure that Tenant, any member of the household, a guest, or another person under the Tenant's control, shall not engage in:
(i) Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the Development by other residents or by the Landlord's employees, or
(ii) Any violent or drug-related criminal activity on or off the Leased Premises or the Development, or
(iii) Any activity, on or off the Leased Premises or the Development, that results in a felony conviction."
The Housing Authority's ability to terminate a tenancy is subject to "Termination of Tenancy Procedures." Under those Procedures, the Project Manager is to speak with the tenant, "in order to discuss the problem which may lead to termination of tenancy, seek to ascertain the facts involved, and, when appropriate, seek to assist the tenant by securing outside help." If remedial actions fails, "or if the [Project] Manager believes that termination of tenancy is the appropriate course of action," the tenant's file and the Project manager's recommendations are submitted to the Tenancy Administrator for review. If the Tenancy Administrator finds a basis for termination of tenancy, the file is referred to the Housing Authority's Law Department to prepare and send to the tenant a notice of charges setting forth the specific grounds for termination. The notice is sent at least 15 days prior to a date set for a hearing before a Hearing Officer and is accompanied by a copy of the Termination of Tenancy Procedures, which apprises the tenant that adjournments will be freely granted, and that the tenant has the right to be accompanied by an attorney or other representative, as well as to testify, present witnesses (including character testimony) and evidence, issue subpoenas, inspect the Housing Authority's folder, cross-examine the Authority's witnesses, and "make a general statement, in mitigation, as to why his/her tenancy should not be terminated."
The Housing Authority learned that petitioner had been arrested on June 9, 2006 for possession of two loaded firearms, and by letters dated July 27th and August 3rd offered her an opportunity to meet with her Project Manager to discuss the possible termination of her tenancy based on nondesirable conduct. Petitioner failed to appear at either scheduled meeting with the Project Manager or to avail herself of the letters' offer to call to arrange another appointment. Thereafter, the Project Manager informed petitioner that her file was being forwarded to the Tenancy Administrator for review. By notice dated October 16, 2006, petitioner was formally charged with nondesirable conduct and breach of her lease, based on her possession of firearms in her apartment. A copy of the Termination of Tenancy Procedures was appended to the notice, which expressly reiterated that petitioner could appear at her scheduled hearing, along with such witnesses as she desired, and could be represented by counsel or other representative of her choice; the notice also suggested that she contact a free legal services agency if she could not afford a lawyer.
At the outset of petitioner's hearing, conducted on February 2, 2007, the Hearing Officer ascertained that petitioner had received the charges and understood them. The Hearing Officer reminded her that she had the right to an attorney or other representative, but petitioner asserted that she wished to represent herself and that she was prepared to proceed. Before reading the two charges aloud, the Hearing Officer stated that petitioner could admit or deny the charges, and if she wasn't sure how to respond she should deny them. Petitioner denied both charges: unlawful possession of firearms, and failure to refrain from illegal or prohibited activity under the lease.
The Hearing Officer then explained that the Housing Authority would attempt to prove its case by presenting the testimony of a police sergeant and other evidence, and that petitioner would be able to examine the documents, cross-examine the sergeant, testify on her own behalf, call witnesses, and present documents. When petitioner mentioned a letter from her criminal attorney indicating that criminal charges had not been pursued, the Hearing Officer stated that the proceeding was not a criminal matter, but a civil matter involving the possible termination of her tenancy and entailing a different burden of proof. The Hearing Officer continued that, regardless of the outcome in Criminal Court, the ...