City of New York v. Scott

• Decision Date: 01 May 1997
• Citation: 239 A.D.2d 113,657 N.Y.S.2d 600
• Parties: The CITY OF NEW YORK, Petitioner-Appellant, v. Kenneth SCOTT, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 600

657 N.Y.S.2d 600

239 A.D.2d 113

The CITY OF NEW YORK, Petitioner-Appellant, v. Kenneth SCOTT, Respondent-Respondent.

Supreme Court, Appellate Division,

First Department.

May 1, 1997.

Alan G. Krams, for Petitioner-Appellant.

Esperanza Colon, for Respondent-Respondent.

Before WALLACH, J.P., and NARDELLI, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Order of the Appellate Term of the Supreme Court, First Department, entered August 9, 1995, which, in a holdover licensee proceeding, reversed an order of the Civil Court, Bronx County (Carl Callender, J.), entered July 15, 1993, dismissing the petition, and remanded the matter to Civil Court for a new trial on the issue of whether respondent's activities in the subject premises disqualify him from eviction protection as a successor tenant, unanimously affirmed, without costs.

In this summary proceeding, the City, as respondent's landlord, seeks to evict him from the apartment in which he resided with his mother, the legal tenant, from 1985 until her death in 1991, and then alone thereafter. The Department of Housing Preservation and Development ("HPD") denied respondent's application for tenancy in his own name pursuant to its Successor Tenants policy (28 RCNY ch 24), asserting, without providing any detailed specifications, that he had engaged in the "unacceptable activity" of drug trafficking in the vicinity of the premises, and was therefore ineligible for a successor tenant lease. HPD denied respondent's pro se administrative appeal of that decision, but did not advise him that he had the right to further review pursuant to CPLR Article 78. Thereafter, the City sought to evict respondent as a holdover licensee.

Respondent made a prima facie showing of entitlement to the apartment under petitioner's Successor Tenants policy (cf., Morillo v. City of New York, 178 A.D.2d 7, 13, 582 N.Y.S.2d 387, appeal dismissed79 N.Y.2d 1039, 584 N.Y.S.2d 448, 594 N.E.2d 942, lv. denied 80 N.Y.2d 752, 587 N.Y.S.2d 904, 600 N.E.2d 631). We agree with Appellate Term that because respondent received no meaningful opportunity at the agency level to confront the evidence of his alleged drug trafficking, no notice of the facts relied on by HPD in reaching its determination, and no advice of his right to the Article 78 relief, due process requires that respondent be permitted to litigate his family-member succession entitlement as a defense to the City's holdover proceeding (cf., Matter of Henderson v. Popolizio,...