Garcia v. Franco
| Decision Date | 19 March 1998 |
| Citation | 248 A.D.2d 263,670 N.Y.S.2d 436 |
| Parties | , 1998 N.Y. Slip Op. 2634 In re Application of Janice GARCIA, Petitioner-Respondent, For a Judgment, etc., v. Ruben FRANCO, etc., et al., Respondents-Appellants. In re Application of Gisela RODRIGUEZ, Petitioner-Respondent, For a Judgment, etc., v. Ruben FRANCO, etc., et al., Respondents-Appellants. |
| Court | New York Supreme Court — Appellate Division |
David Pieragostini, for petitioners-respondents.
Sun Young Chun, for respondents-appellants.
Before MILONAS, J.P., and ROSENBERGER, WALLACH, WILLIAMS and MAZZARELLI, JJ.
Judgment, Supreme Court, New York County (Stuart Cohen, J.), entered October 7, 1996, which annulled respondents' determination that petitioner Rodriguez was not entitled to a "remaining family member" grievance hearing because she was not current in paying use and occupancy, and remanded the matter for a fair hearing, unanimously reversed, on the law, without costs, the petition denied, the determination confirmed and the proceeding dismissed, and any stay of collateral eviction proceedings vacated.
Appeal from judgment, same court and Justice, entered July 9, 1997, which similarly annulled respondents' determination with respect to petitioner Garcia, unanimously dismissed, without costs, as moot.
At issue in the Rodriguez appeal is the validity of respondent Housing Authority's rule ) requiring continued payment of use and occupancy as a condition precedent to commencement of a grievance on entitlement to status as a remaining family member. At the time of both the initially scheduled administrative hearing and a subsequent hearing some five months later, petitioner Rodriguez had failed to pay any use and occupancy charges, and her arrears had by then exceeded $5,800. At the adjourned hearing, the administrative law judge dismissed her grievance based solely on this default in payment, without reaching the merits. She then brought this Article 78 proceeding.
The motion court granted the petition and held that dismissal of the grievance for failure to pay use and occupancy was arbitrary and capricious on the ground that the rule discriminated against the poor. The court further opined that the dismissal placed petitioner Rodriguez in a "Catch-22" situation, inasmuch as the Department of Social Services ("DSS") would not publicly assist her rent obligation without a lease, and without such payment she was deprived of access to the grievance machinery that could provide such a lease.
There is nothing in the record before us that could support such a finding. On the contrary, respondents' staff had warned petitioner Rodriguez of the requirement at...
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...grievance (NYCHA Management Manual, ch. 1, subd XII[D][2][b] ). This Court has upheld that requirement (Matter of Garcia v. Franco, 248 A.D.2d 263, 265, 670 N.Y.S.2d 436 [1st Dept.1998], lv. denied 92 N.Y.2d 813, 680 N.Y.S.2d 906, 703 N.E.2d 764 [1998] ). However, in this case, NYCHA's appl......
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Valette v. N.Y.C. Hous. Auth.
...Matter of Hawthorne v. New York City Hous. Auth., 81 A.D.3d 420, 420–421, 916 N.Y.S.2d 55 [1st Dept.2011] ; Garcia v. Franco, 248 A.D.2d 263, 264–265, 670 N.Y.S.2d 436 [1st Dept.1998], lv. denied 92 N.Y.2d 813, 680 N.Y.S.2d 906, 703 N.E.2d 764 [1998] ). The facts of this case are distinguis......
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Widerman v. N.Y.C. Hous. Auth.
...242, 763 N.Y.S.2d 262 [1st Dept 2003] ), and was not entitled to a rent credit for the prior period (see Matter of Garcia v. Franco, 248 A.D.2d 263, 670 N.Y.S.2d 436 [1st Dept 1998], lv. denied 92 N.Y.2d 813, 680 N.Y.S.2d 906, 703 N.E.2d 764 [1998] ). The court properly found that petitione......
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Kwan Fong Fung v. N.Y.C. Hous. Auth.
...Muhammad v. New York City Hous. Auth., 81 A.D.3d 526, 527, 917 N.Y.S.2d 173 [1st Dept.2011]; see also Matter of Garcia v. Franco, 248 A.D.2d 263, 264–265, 670 N.Y.S.2d 436 [1st Dept.1998], lv. denied92 N.Y.2d 813, 680 N.Y.S.2d 906, 703 N.E.2d 764 [1998] ). Finally, despite petitioners' comp......