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In re Application of Lopez

Supreme Court, New York, County

April 18, 2013

In the Matter of the Application of MARIA LOPEZ, Petitioner,
NEW YORK CITY HOUSING AU'IHORITY, Respondent. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules Index No. 401491/2012

Unpublished Opinion



This Article 78 proceeding resulted from a termination of Petitioner's tenancy by Respondent New York City Housing Authority (NYCI1A) due to a violation of the parties October 24, 1997 Permanent Exclusion Agreement. On or about May 6, 1 995 Jose Lopez, Petitioner's son, who was an authorized occupant of the household, attempted to kill another person on or near the Mousing Authority grounds and unlawfully possessed a deadly weapon. After a jury trial, Jose was convicted of first-degree assault. This incident was a violation of NYCHA's rules, described below, and Respondent had the right to terminate the tenancy of Petitioner' at that time. Instead, Petitioner and Respondent entered into a Permanent Exclusion Agreement in which Petitioner agreed to never permit Jose Lopez to return to her household. Under the agreement, a violation of this term would result in eviction of Petitioner. (RespT V.A. EX.C ¶ (l)(c).)

Petitioner has been on probation with respect to her tenancy since entering into the agreement on October 24, 1997. On August 5, 2011, Housing Authority investigators found Jose inside Petitioner's apartment with his siblings Luisa and Angel. Luisa attempted to conceal the identity of her brother but ultimately admitted that the man in the apartment was Jose.

Based on the violation, the NYCHA charged Petitioner with violation of the Permanent Exclusion Agreement. Petitioner represented herself at the NYCHA administrative hearing, where she admitted that Jose was at her apartment on August 5, 2011. However, she claimed, among other things, that she thought the exclusion applied only when Jose was incarcerated, that her daughter Luisa was unaware of the Exclusion Agreement, and that she was not home when the incident occurred. The hearing officer sustained all of the charges against Petitioner and ordered the termination of Petitioner's tenancy on May 10, 2012 in a. live-page written decision. Petitioner seeks to require Respondent to reverse its decision to terminate her tenancy on the grounds that it was contrary to law, arbitrary and capricious, an abuse of discretion, and in violation of petitioner's due process rights. For the reasons stated below, the Court denies the Petition and dismisses the proceeding.

In New York, courts cannot interfere with the discretion of administrative tribunals unless "there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious." Pell v. Board of Education, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 839 (1974). A decision is arbitrary and capricious if the tribunal fails to examine relevant data and articulate a satisfactory explanation for its action including a rational connection between facts found and choice made. Id. For the reasons discussed below, Respondent's decision to terminate Petitioner's tenancy was not arbitrary and capricious.

As Respondent argues, it had authority from the Code of Federal Regulations ('"CFR") to terminate her tenancy. In particular, 24 C.F.R. § 966.4(5)(ii)(A) mandates that the lease "must provide that any criminal activity by a covered person that threatens the health, safety, or right, to peaceful enjoyment of the premises by other grounds for termination of tenancy (emphasis added)." See Bond v. Howard Houses, 89 A.I).3d 730, 731, 931 N.Y.S.2d 911, 912 (2nd Dept. 2011) (applying this provision to NYCHA tenancy). As Respondent slates, its lease with Petitioner prohibits tenants, members of the tenant's household, guests, or other persons from engaging in "criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents" and requires tenants to act in a manner "conducive to maintaining the project in a decent, safe and sanitary condition." (Resp't. V.A. ¶ 20.) This clause required Respondent to make sure no member of her household participated in illegal activities that would jeopardize the safety and welfare of others. Respondent had the authority to terminate the tenancy of Petitioner because it had this clause in its lease and because .lose did engage in violent criminal activity.

A side from the Federal Regulation and lease clause, the following facts also supported Respondent's decision, Jose was convicted of assault in the First degree and served approximately 15 years in prison. Petitioner entered into the Permanent Exclusion Agreement as a result of this assault. Respondent had authority to terminate Petitioner's tenancy due to the Permanent Exclusion Agreement. The agreement required the permanent exclusion of Jose from Petitioner's apartment. Petitioner violated the agreement on August 5, 2011 when investigators found Jose inside her apartment. Jose was just recently released from prison when the investigators found him at Respondent's apartment. In addition, at the hearing, Petitioner admitted to the charges of violation of probation and violation of her Permanent Exclusion Agreement. Respondent, examined the relevant data at the administrative hearing and articulated a satisfactory explanation for its action.

An administrative penalty may be set. aside as a gross abuse of discretion if the punishment is "so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Pell, 34 N.Y.2d at 233, 356 N.Y.S.2d at 841. Petitioner alleges the penalty of eviction in her case was disproportionate to the offense and should be considered "shocking to one's sense of fairness." While the penalty here is harsh, under these circumstances it is not "shocking to one's sense of fairness." As Respondent argues, Appellate courts have upheld determinations to terminate a tenancy based on similar facts as were presented in this case. See Gibbs v. New York City Hous. Aulh., 82 A.0.3d 412, 413, 918 N.Y.S.2d 42, 43 (lst Dept. 2011) (upholding a termination of tenancy because son engaged in serious criminal activity); Folks v. New York City Hous. Aulh., 27 A.D.3d 270, 271, 812 N.Y.S.2d 46, 47 (1st Dept. 2006) (upholding a. termination, and pointing to the significance of the serious criminal activity). Jose engaged in violent, activity, which resulted in a jury convicting him of first-degree assault, which is a felony and is considered serious criminal activity.

Petitioner argues that the termination in this case is disproportionate because the Hearing Officer failed to consider mitigating factors such as the possibility of homelessness and Petitioner's health. However, Respondent did consider these factors in its live-page decision and was not. required to do so.[1] Terminations of tenancy have been upheld even if homeless- ness While the Court is sympathetic to the fact that Petitioner suffers from health issues and may he rendered homeless upon evection, it "has no discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed." Woolen v. Finkle, 285 A.I).2d 407, 409, 728 N.Y.S.2d 152, 154 (lst Dept. 2001). In addition, as Respondent argues, the "failure of Respondent to enforce applicable rules and permanent exclusion agreements undermines respect for the Housing Authority's policies and the obligations of tenants and is unfair to law-abiding tenants." (Resp't Mem. at 22.) Therefore, the Court finds that the punishment is not disproportionate to the offence and does not shock the Court's sense of fairness.

The Court has considered Petitioner's remaining arguments and finds them to be without merit.


Accordingly it is

ORDERED and ADJUDGED _____ Article 78 proceeding to vacate the decision of respondent terminating ...

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