Sonya Kaloyanides and Kelly D. MacNeal, New York (Andrew M. Lupin of counsel), for appellants.
The Bronx Defenders, Bronx (Anna Arkin-Gallagher of counsel), for respondent.
Andrias, J.P., Saxe, DeGrasse, Richter, Gische, JJ.
Judgment, Supreme Court, New York County (Emily Jane Goodman, J.), entered July 28, 2010, granting the petition seeking to annul the determination of respondent New York City Housing Authority (NYCHA), dated June 3, 2009, which terminated petitioner's tenancy upon findings of nondesirability and breach of rules and regulations, to the extent of sua sponte remanding the matter for a new mental competence evaluation, reversed, on the law, without costs, the petition denied and the proceeding brought pursuant to CPLR article 78 dismissed. Judgment, same court (Manuel J. Mendez, J.), entered July 18, 2012, granting the petition seeking to vacate the decision of an NYCHA hearing officer, dated December 30, 2011, which denied petitioner's motion to set aside NYCHA's determination terminating her public housing tenancy, and remanding the matter for a new hearing at which petitioner would be afforded the assistance of a guardian ad litem, reversed, on the law, without costs, the petition denied and the proceeding brought pursuant to CPLR article 78 dismissed.
As petitioner concedes, in the order entered July 28, 2010, the Supreme Court erred in sua sponte remanding the matter for a second mental competence evaluation, since no challenge to the mental health evaluation was raised in the administrative proceedings or in the subject petition (see e.g. Lombardo v Mastec N. Am., Inc., 68 A.D.3d 935, 936-937 [2d Dept 2009]).
The findings of nondesirability and breach of NYCHA's rules and regulations were supported by substantial evidence that petitioner pleaded guilty to criminal sale of a controlled substance in the third degree in 2007, and that the conviction arose from petitioner's sale of crack cocaine to an undercover officer on NYCHA's premises (see Matter of Rodriguez v New York City Hous. Auth., 84 A.D.3d 630, 631 [1st Dept 2011]; Matter of Zimmerman v New York City Hous. Auth., 84 A.D.3d 526 [1st Dept 2011]).
The penalty of termination does not shock our sense of fairness. Even accepting petitioner's assertions of rehabilitation, such evidence does not warrant a different determination (see Rodriguez, 84 A.D.3d at 631).
Upon introduction of evidence of petitioner's purported mental illness, the Hearing Officer properly adjourned the proceedings so that petitioner could undergo a mental competency evaluation by NYCHA's Social Services Department (see NYCHA GM-3742 Revised, ¶ III[E]). Upon completion of the evaluation, the Hearing Officer properly reviewed the Social Services' report (id. at ¶ III[F][a]), and noted that Social Services had determined that petitioner was competent and did not require a guardian ad litem. Accordingly, the hearing resumed and petitioner appeared pro se and without the assistance of a guardian, although she was assisted by her daughter, a lay person.
Petitioner failed to meet her burden of establishing that she was not mentally competent at the time of the hearing (see GM-3742 Revised, ¶ III[F]; compare Matter of Smalls v New York City Hous. Auth., 25 A.D.3d 478, 479 [1st Dept 2006], with Matter of Padilla v Martinez, 300 A.D.2d 96, 99-101 [1st Dept 2002]). Moreover, there is no support for the Supreme Court's determination, in the order entered July 18, 2012, that the Hearing Officer was obligated to "err on the side of caution, " disregard the mental competence evaluation, and appoint a guardian. Nor is there support for the court's determination that the mental competence evaluation was insufficient, or that the evaluator should have followed-up with petitioner's providers after the evaluation (see GM-3742 Revised; see also Blatch v Hernandez, 2008 WL 4826178, 2008 U.S. Dist LEXIS 92984 [SD NY, Nov. 3, 2008, No. 97-Civ-3918(LTS)(HBP)] [approving NYCHA settlement, which included GM-3742 Revised]).
There is no support for our concurring colleague's view that petitioner's mental competence evaluation was rendered "incomplete" because it did not reflect an attempt to contact collateral sources such as petitioner's daughter, son, sister and case manager. Under ¶ GM-3742 IIIC[a] and [b], mental competence is defined as a tenant's ability to understand the nature of the proceedings and to adequately protect and assert his/her rights and interests in the tenancy. On this record, such contacts were not required by GM-3742 and it is speculative to say that they would have yielded relevant information. It also does not follow, as the concurrence asserts, that the Hearing Officer failed to critically examine the evaluation simply because she adopted its conclusions. The concurrence's citation to GM-3742 IIIF[b] is inapt because this appeal does not involve a guardian ad litem's pre-decision request for a mental competence evaluation or a stipulation of settlement. Also, the Hearing Officer's decision recites evidence of respondent's 2007 guilty plea to the drug charge as well as her 2009 guilty plea to a violation that was committed three days before the hearing commenced. As a matter of law, respondent was presumptively competent to enter those pleas (see People v Gelikkaya, 84 N.Y.2d 456, 459 ). This unrebutted presumption is itself sufficient as a rational basis for the Hearing Officer's determination that respondent failed to establish that she was not mentally competent at the time of her hearing.
All concur except Gische, J. who concurs in a separate memorandum as follows:
GISCHE, J. (concurring)
Like my colleagues, I would reverse each of the judgments entered in favor of the petitioner, but on narrower grounds. I agree that the Supreme Court erred when, in the order entered July 28, 2010, it sua sponte remanded the matter for a second mental competence evaluation. I also agree that the July 18, 2012 application to set aside the post-hearing determination, on the basis that petitioner was not mentally competent at the time of hearing, was correctly decided by the Hearing Officer because, under the applicable regulation, petitioner did not sustain her burden of proof.
I write separately, however, because I do not agree with the majority that the mental competence evaluation performed by the Social Services Department (Social Services) was sufficient, or that the Hearing Officer complied, at the initial hearing, with all of her obligations under GM-3742, as revised after the stipulation and order of settlement as approved in Blatch v Hernandez (2008 ...