Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Falkowski v. North Fork Housing Alliance

September 30, 2009

ROY FALKOWSKI, PLAINTIFF,
v.
NORTH FORK HOUSING ALLIANCE, INC., TANYA PALMORE, IN HER CAPACITY AS EXECUTIVE DIRECTOR, BARRY LATNEY, IN HIS CAPACITY AS HEARING OFFICER, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

The Court is in receipt of Magistrate Judge A. Kathleen Tomlinson's Report and Recommendation ("R&R"), which recommended that Plaintiff's motion for a default judgment be denied. Plaintiff objects to the R&R and argues that his motion for a default judgment should be granted, or in the alternative, the Court should permit Plaintiff to file an Amended Complaint. For the reasons stated below, the Court adopts Judge Tomlinson's R&R and grants Plaintiff's motion to amend.

BACKGROUND

The R&R sets forth the facts of this case in a thorough manner, and therefore, the Court will not recite them in detail. See 08-CV-2550, Docket No. 12 (E.D.N.Y. Aug. 17, 2009). In summary: Plaintiff is a participant in the Department of Housing and Urban Development's ("HUD") Housing Choice Voucher Rental Assistance Program (hereinafter referred to as the "Section 8 program"). Defendant North Fork Housing Alliance, Inc. (the "Housing Authority") is a non-profit corporation established by the Town of Southhold. The Housing Authority pays Plaintiff's monthly rent because Plaintiff is a recipient of Section 8 rental assistance.

On April 8, 2008, Defendant Tanya Palmore ("Palmore"), Executive Director of the Housing Authority, sent Plaintiff a notice terminating his Section 8 voucher. The notice stated that Plaintiff's Section 8 rental assistance had been terminated because an unauthorized person, Peter Foster ("Foster"), had been residing in Plaintiff's unit since December 2007, Plaintiff had been collecting $150.00 in weekly rent from Foster while receiving Section 8 rental assistance, and Foster was a known sex offender.

On May 22, 2008, an informal hearing was held to review the Housing Authority's decision to terminate Plaintiff's Section 8 benefits. Although Plaintiff was present with counsel at the hearing, Plaintiff maintains that Defendants did not provide him with a full opportunity to be heard. In short, Plaintiff states that Defendants called a witness despite previously telling Plaintiff that no witnesses would be called, certain hearsay testimony was admitted during the hearing, Plaintiff was not permitted to cross-examine a HUD Specialist, and Plaintiff was not permitted to examine a police report regarding the matter prior to the hearing.

On May 23, 2008, Plaintiff received a letter from Palmore stating that the evidence presented at the hearing and a print-out from the New York State Department of Criminal Justice Services' website revealed that Foster had been residing in Plaintiff's residence. As a result, the Housing Authority decided to terminate Plaintiff's Section 8 rental assistance effective July 1, 2008. Plaintiff argues that Palmore should not have sent the written decision but rather the decision should have been written by Barry Latney, who presided as the hearing officer.

Plaintiff maintains that Defendants violated his due process rights by terminating his Section 8 voucher without providing him with a full opportunity to be heard at the hearing and without providing him with a written decision by an impartial policy-maker. On October 22, 2008, Plaintiff filed a motion for a default judgment against Defendants. This Court referred Plaintiff's motion to Judge Tomlinson on November 4, 2008.

On August 17, 2009, Magistrate Judge Tomlinson issued an R&R recommending that Plaintiff's motion for a default judgment against Defendants be denied because Plaintiff failed to plead a violation of Section 1983. Plaintiff objects to Judge Tomlinson's R&R and argues that the Court should grant his motion for a default judgment, or in the alternative, should provide Plaintiff with an opportunity to amend his Complaint to cure the deficiencies noted in the R&R.

DISCUSSION I. Standard of Review "When evaluating the report and recommendation of a magistrate judge, the district court may adopt those portions of the report to which no objections have been made and which are not facially erroneous." Walker v. Vaughan, 216 F. Supp. 2d 290, 291 (S.D.N.Y. 2002) (citation omitted). A party may serve and file specific, written objections to a magistrate's report and recommendation within ten days of receiving the recommended disposition. See FED. R. CIV. P. 72(b). Upon receiving any timely objections to the magistrate's recommendation, the district "court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." 28 U.S.C. §636(b)(1)(C); see also Fed. R. Civ. P. 72(b). A party that objects to a report and recommendation must point out the specific portions of the report and recommendation to which they object. See Barratt v. Joie, No. 96-CV-0324, 2002 U.S. Dist. LEXIS 3453, at *2 (S.D.N.Y. March 4, 2002) (citations omitted).

When a party raises an objection to a magistrate judge's report, the Court must conduct a de novo review of any contested sections of the report. See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). But if a party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008). Furthermore, even in a de novo review of a party's specific objections, the court ordinarily will not consider "arguments, case law and/or evidentiary material which could have been, but [were] not, presented to the magistrate judge in the first instance." Kennedy v. Adamo, 02-CV-1776, 2006 WL 3704784, at *1 (E.D.N.Y. 2006).

II. Judge Tomlinson's R&R

In her R&R, Judge Tomlinson properly stated that certain procedural safeguards are required before Defendants may terminate Plaintiff's protected property interest in continuing to receive Section 8 rental subsidiaries. In order to terminate Plaintiff's protected property interest, due process requires (1) timely and adequate notice, including the reasons for the proposed termination, (2) an opportunity to be heard at a pre-termination hearing, including the right to present evidence and confront and cross-examine witnesses, (3) a right to be represented by counsel at the hearing, (4) a written decision, including the reasons for the determination and the evidence on which the decision maker relied, and (5) an impartial decision maker. See Goldberg v. Kelly, 397 U.S. 254, 266-71, 90 S.Ct. 1011, 25 L.Ed. 2d 287 (1970).

Judge Tomlinson found that Plaintiff was provided with an opportunity to be heard at the hearing. The Court agrees. Plaintiff complains that Defendants called a witness despite telling him that no witnesses would be called; however, Plaintiff's counsel objected to this testimony, which was overruled, and as Judge Tolimson noted, there is nothing in the record to indicate that Plaintiff did not have an opportunity to refute the witness's testimony. Next, the Court rejects Plaintiff's allegation that Defendants violated his due process rights by failing to provide him with an opportunity to inspect a police report. It is clear from the record that the police report was not submitted as evidence during the hearing. Plaintiff also claims that he was not presented with an opportunity to cross-examine HUD Specialist Victor Oluwole; however, as Judge Tomlinson ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.