Petitioner Tiffany Jones commenced this __________ to annul the decision by the New York City Housing Authority (NYCHA) declining to vacate the termination of her mother's tenancy on default and further declining to allow Ms. Jones to apply for remaining family member status. NYCHA moved to dismiss the petition. Ms. Jones opposed the motion and requested leave to amend the petition. By letter dated October 26, 2012, counsel for NYCHA indicated that the agency took "no position" on petitioner's motion for leave to amend, and counsel then confirmed that NYCHA opted to have its cross-motion to dismiss apply to the amended petition. As leave to amend is freely granted pursuant to CPLR §3025(b) absent prejudice, the Court will accept the amended petition in the form attached to the moving papers and will consider those papers here.
Petitioner Tiffany Jones is the daughter of Melissa Jones, the prior tenant of record in Apartment 5D at 428 Columbia Street, in a NYCHA public housing development known as Red Hook West Houses and located in the Red Hook section of Brooklyn. Melissa Jones commenced her tenancy in or before 2003 (NYCHA motion, Exh A). At that time, Tiffany was about 18 years old and was listed as a member of her mother's household, along with her two brothers, authorized to occupy the apartment; in 2007 Tiffany gave birth to her own son Jason, who joined the household with NYCHA's knowledge and consent (Exh B).
In the Fall of 2009, Melissa Jones went to North Carolina with her two sons after the boys were stabbed near the apartment and to care for Tiffany's ailing grandfather. Tiffany asserts that her mother did not advise her of any plans to relocate when she left, and she continued to reside in the apartment with limited contact with her mother. At or about that time, NYCHA sent to Melissa a notice dated September 15, 2009 advising her that it would seek to terminate the tenancy for non-verifiable income and chronic rent delinquency based on the tenant's failure to submit the household income affidavit that was due in 2009 and her failure to timely pay the rent in 2008 and 2009 (Exh F). By notice dated March 31, 2010, the charges were amended regarding the rent delinquency issue to limit the period from April 2009 through March of 2010 when the rent was routinely paid late, and a hearing was scheduled for May 6, 2010 (Exh G).
In or about April of 2010, Tiffany received that notice or a similar one addressed to her mother from the management office at the development advising Melissa Jones that proceedings were being commenced to terminate her tenancy. When Tiffany went to the office, the housing manager purportedly insisted that he would only speak with the tenant of record. Tiffany allegedly indicated that her mother was then living in North Carolina and that she, Tiffany, wished to take over the lease as a remaining family member as she had been living in the apartment with her mother for several years before the mother left. In fact, she had been a member of Melissa's household listed in the NYCHA records at the time the tenancy commenced. When the manager allegedly indicated in response that a hearing would be scheduled regarding the termination of tenancy charges at which Melissa was required to appear, Tiffany advised her mother and understood that she would take care of everything.
However, no one appeared at the hearing on May 6, and NYCHA Hearing Officer Desiree V. Miller issued a decision dated May 7, 2010 sustaining the charges on default and terminating the tenancy (Exh H). Tiffany apparently received and forwarded that decision to her mother, who came to New York on May 25, 2010, stayed with family members at a different location, and applied in writing to vacate the default (Exh I). Specifically, she indicated that she had not been in New York at the time and had not known that her daughter Tiffany could not attend the hearing in her place. She explained that she had "moved her sons" to the South and that she also had a father in the South who needed her help. As to the charges, she stated that the "problems are still being resolved and should be completed by June 6th, 2010." She indicated that public assistance would pay the rent and that she had submitted copies of her pay stubs as proof of her income, albeit late, and that she had since lost her job.
On June 10, 2010, Hearing Officer Miller granted the application without any opposition from NYCHA and advised Ms. Jones to expect notice of a new hearing date (Exh J). By notice dated August 4, 2010, NYCHA advised Melissa of a new hearing date of September 14, 2010 regarding the termination of tenancy charges (Exh K). NYCHA sent another notice thereafter adjourning the matter to November 4, 2010 (Exh L).
In her papers to this Court (amended petition, ¶ 21), Tiffany has acknowledged receipt of the notice from NYCHA scheduling the termination of tenancy hearing for November 4, 2010. She states that she went to the office and explained that her mother had moved out of the apartment and that she wished to remain. Tiffany was allegedly advised again that Melissa Jones needed to appear at the hearing. She was not given any papers or information regarding her request for RFM status at that time.
Neither Melissa nor Tiffany appeared at the hearing (Exh M). By decision dated November 5, 2010, NYCHA Hearing Officer Arlene Ambert for the second time sustained the charges on default and terminated the tenancy (Exh N). The Board notified Melissa on November 17, 2010 that it had approved that decision (Exh O).
Tiffany claims in her petition that she understood all along (obviously mistakenly) that her mother had taken care of everything. However, she presumably learned otherwise when she received a petition for nonpayment of rent in June of 2010 returnable at the Red Hook Community Justice Center. Tiffany appeared there and signed a stipulation agreeing to pay rent arrears. She then went to the New York City Human Resources Administration (HRA) to obtain a grant (Tenant motion, Exh C). In the Fall, HRA allegedly began sending NYCHA some of the rent. Tiffany followed up in Housing Court, but she did not appear at the termination of tenancy hearing in November, as indicated above.
Thereafter, in May 2011, Tiffany was served with a holdover petition based on the November 2010 termination of the tenancy. She allegedly went to the management office in an attempt to vacate the default decision and assert her rights as a remaining family member (RFM). However, she was purportedly told that only the tenant of record (her mother, Melissa Jones) could apply to vacate the default and that RFM rights were not available once the tenancy had been terminated. NYCHA further advised Tiffany that she could not assert RFM rights even if the tenancy had not been terminated because her mother Melissa had not formally surrendered her rights to the apartment. Also rent was outstanding at the time, NYCHA said.
In April 2012, Tiffany, acting for the first time with the assistance of counsel, formally asked NYCHA to vacate the default decision in a letter from counsel (Exh P). Counsel indicated in the letter that Tiffany was seeking to vacate the termination of the tenancy which had been entered against her mother on default, that Tiffany herself had never been sent notice of the hearing, and that Ms. Jones had defenses to the chronic rent delinquency charges. ...