McLaughlin v. Hernandez, 2004 NY Slip Op 24080 (NY 3/17/2004)
| Decision Date | 17 March 2004 |
| Citation | 2004 NY Slip Op 24080 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | VERONICA McLAUGHLIN, Petitioner, v. TINO HERNANDEZ, as Chairman of the New York City Housing Authority, ET AL., Respondents. |
Brooklyn Legal Services Corp. B (John C. Gray, Jr., and Jennifer Levy of counsel), for petitioner.
Ricardo Elias Morales, New York City (Nancy M. Harnett and Byron S. Menegakis of counsel), for respondents.
Petitioner moves for a declaration that respondent New York City Housing Authority's (NYCHA) policy of refusing to permit remaining family members to appear at termination of tenancy proceedings violates 24 CFR 966.53; finding that the NYCHA's failure to reopen the administrative default in this matter was a violation of petitioner's due process rights under the Federal and State Constitutions; and finding that the NYCHA's failure to reopen the administrative default was arbitrary and capricious.
Petitioner Veronica McLaughlin resided at apartment 12-B, 80 Dwight Street, Brooklyn, a NYCHA building. She lived there with her mother, Valerie Robinson, her two sons, sister and nephew, until their eviction. She lived in the apartment for 14 years, since the inception of the tenancy, and has always been listed on the appropriate forms as a resident of the apartment. The lessee of the apartment (the person in whose name the lease was made) was petitioner's mother, Valerie Robinson. Petitioner alleges that Robinson abandoned the apartment without formally notifying the NYCHA housing manager.
Robinson failed to submit annual recertification forms to NYCHA for several years. She allegedly provided an income affidavit and some supporting income information to the housing manager on July 16, 2002.
NYCHA commenced a "termination of tenancy" proceeding against Robinson, by notice dated January 3, 2003. The notice stated that Robinson's tenancy was being terminated for nonverifiable income and breach of agency rules, in connection with her failure to provide sufficient income information in 2002.
Petitioner maintains that Robinson failed to respond to the notice of termination, because she had abandoned the apartment, and, thus, had presumably not received the notice. A hearing was held at NYCHA, and the hearing officer terminated the tenancy, on default, by decision and disposition dated January 22, 2003. The default was entered on February 12, 2003. Petitioner contends that she was not aware of the termination until she found a petition in a Housing Court holdover proceeding directed to her mother, relating to a holdover proceeding that NYCHA had commenced against Robinson. McLaughlin and her mother appeared in court, pro se, in April 2003.
Robinson asserts that she was told "that in order to prevent the family's eviction, she would have to apply to reopen her default at an administrative hearing at 250 Broadway." (Petition ¶ 21.) The Housing Court proceeding was adjourned until May 28, 2003 to enable her to do so. Robinson failed to make the application, and McLaughlin was allegedly told that she could not apply to reopen the default, because she was not the head of household.
Robinson failed to appear in court on May 28, 2003, and a default judgment was entered in favor of the NYCHA. McLaughlin claims that she did not appear in court on May 28, 2003 because she had been told repeatedly by the Housing Authority's rental management office that she could not appear because she was not the head of household, and the proceedings were not in her name.
On August 1, 2003, petitioner was evicted. She then moved in the Housing Court to be restored to possession. Based on her representation that she was "on the lease," the court ordered that she be restored to possession pending a hearing on the motion. On August 6, 2003, petitioner's motion was denied, because she was not named as a tenant on the lease, and had never applied for tenancy as a remaining family member. Execution of the warrant of eviction was stayed through August 20, 2003.
On August 7, 2003, petitioner attempted to file a "remaining family member" grievance with NYCHA. She was allegedly told that, because the tenancy had been terminated, she could not file the family member grievance. She then wrote to the chairman of NYCHA. She received a written response, dated August 25, 2003, stating that she could not request a remaining family member grievance, because her mother's tenancy had already been terminated.
On August 26, 2003, petitioner moved to renew and/or reargue the earlier motion, to vacate the default judgment entered on May 28, 2003, or to stay execution of the warrant so that she could file a remaining family member grievance with NYCHA. The Housing Court denied that motion on October 15, 2003, on the ground that it did not have power to overturn an administrative determination. The execution of the warrant was stayed until November 28, 2003, to allow petitioner to file a CPLR article 78 proceeding with this court.
By letter dated September 10, 2003, petitioner attempted to reopen the February 12, 2003 default, i.e., the default before the NYCHA hearing officer. Petitioner's application was denied, with the hearing officer stating that a residual tenancy claim is different from a defense to termination of tenancy, and must be initiated by a grievance procedure.
By the instant petition, petitioner seeks to stay the Housing Court proceeding. However, this court did not grant petitioner a temporary restraining order, and she has since again been evicted. NYCHA has offered the apartment to another family on its waiting list, but has been enjoined from reletting the apartment pending determination of this motion.
Petitioner contends that NYCHA violated federal law by failing to allow her to assert her claim to remaining family member status in the administrative termination of tenancy proceedings. According to petitioner, NYCHA permits only tenants whose names are on the lease to appear at a "termination of tenancy" hearing, even though that policy is not set forth in its own Management Manual. She argues that this conflicts with federal regulations, in which grievances are described as the forum in which a tenant can contest proposed termination of tenancy (except where the tenancy is being terminated for drug-related activity). The tenant who is entitled to file a grievance is the person "[w]ho resides in the unit, and who executed the lease with the PHA . . . or, if no such person now resides in the unit, [the person] [w]ho resides in the unit, and who is the remaining head of household of the tenant family residing in the dwelling unit." (24 CFR 966.53 [f].)
Petitioner acknowledges that NYCHA permits remaining family members to file grievances to assert their right to succeed to a tenant's lease. However, she contends that, by not permitting remaining family members to do so after a proceeding to terminate is initiated, NYCHA undermines the federal regulations, which anticipate that remaining family members will be able to present their claim at the termination hearing. Petitioner also argues that by not being permitted to be heard, she was denied due process under the Fourteenth Amendment of the United States Constitution.
Petitioner claims that she has a reasonable excuse for the default, having been told by the rental management office that she could not appear in the underlying action. She also contends that she has a meritorious defense, based on her mother's leaving the apartment, which should have resulted in her being allowed to intervene in the administrative proceeding.
NYCHA maintains that petitioner has not demonstrated that she was denied any rights. Before she can claim a right as a "remaining head of household," pursuant to the federal regulation, petitioner must demonstrate that the person who executed the lease no longer resides in the unit. Here, NYCHA contends that there is no evidentiary showing that Robinson vacated the apartment. Not only is there no letter of intent to vacate, but Robinson appeared with respect to this matter on three separate occasions, and did not, at any time, state that she had left or was planning to leave the apartment. Petitioner, who appeared with Robinson in Housing Court, never asserted a claim as the remaining head of household, nor did she seek to obtain status as a remaining family member until after the tenancy was terminated. The Housing Authority further points out that the tenant of record is responsible for maintaining the tenant relationship with his or her landlord. Robinson's failure to do so, and petitioner's failure to attempt to initiate any such contact until after the tenancy was terminated is not attributable to any wrongdoing on NYCHA's part....
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