Evans v. New York City

• Decision Date: 10 April 2012
• Citation: 942 N.Y.S.2d 143,2012 N.Y. Slip Op. 02686,94 A.D.3d 885
• Parties: In the Matter of Christopher P. EVANS, respondent, v. NEW YORK CITY, et al., appellants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02686

94 A.D.3d 885

942 N.Y.S.2d 143

In the Matter of Christopher P. EVANS, respondent,

v.NEW YORK CITY, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

April 10, 2012.

Sonya M. Kaloyanides, New York, N.Y. (Laura R. Bellrose and Corina L. Leske of counsel), for appellants.PETER B. SKELOS, J.P., MARK C. DILLON, RANDALL T. ENG, and LEONARD B. AUSTIN, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Housing Authority dated September 28, 2009, which denied the petitioner's application, in effect, to vacate a determination dated September 2, 2009, terminating his tenancy in public housing upon his default in appearing at a hearing, New York City and the New York City Housing Authority appeal, by permission, from an order of the Supreme Court, Richmond County (Fusco, J.), dated November 19, 2010, which, in effect, granted that branch of the petition which was to vacate the petitioner's default in appearing at the hearing and remitted the matter to the New York City Housing Authority for a new hearing.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Richmond County, for a new determination of that branch of the petition which was to vacate the petitioner's default in appearing at the hearing, in accordance herewith.

The petitioner is a residential tenant in a building operated by the New York City Housing Authority (hereinafter the Authority). On July 8, 2009, the Authority charged the petitioner with chronic delinquency in the payment of his rent. On that date, the Authority also allegedly sent the petitioner a notice informing him that a recommendation had been made to terminate his tenancy based on the charges, and that a hearing would be held before a hearing officer on August 11, 2009. The petitioner failed to appear at the hearing and, upon his default, the hearing officer determined, in the absence of any controverting evidence, that the charges should be sustained. On September 2, 2009, the Authority adopted the hearing officer's determination sustaining the charges, and terminated the petitioner's tenancy.

The petitioner applied to vacate the determination terminating his tenancy upon his default in appearing at the hearing. In support of his application, the petitioner contended that his default in appearing at the hearing should be vacated because he had never received the Authority's notice informing him of the date of the hearing, that he was engaged in litigation with the Authority over its failure to perform repairs to his apartment, and that he would pay his rent in full when the repairs were performed. In a determination dated September 28, 2009, the Authority denied the petitioner's application, concluding that he had failed to establish a meritorious defense to the charges because he had not submitted proof of the existence of any court order authorizing him to discontinue payment of rent.

The petitioner subsequently commenced this proceeding pursuant to CPLR article 78 to review the Authority's determination dated September 28, 2009, alleging, inter alia, that the determination should be annulled because he withheld his rent due to the Authority's failure to make repairs. After conducting a personal visit to the petitioner's apartment to evaluate his claims regarding the need for repairs, the Supreme Court, in effect, granted the petition to the extent of vacating the petitioner's default in appearing at the hearing, and remitting the...