New York City Housing Authority v. Nesmith
| Decision Date | 25 July 1979 |
| Citation | 100 Misc.2d 414,419 N.Y.S.2d 37 |
| Parties | NEW YORK CITY HOUSING AUTHORITY, Petitioner, v. Curtis NESMITH, Respondent. |
| Court | New York City Court |
Donald Schatz, New York City, for petitioner; Lauri Resnick, of the New York Housing Authority, of counsel.
Steven W. Smollens of the Legal Aid Society, Harlem Neighborhood Office, New York City, for respondent.
Petitioner instituted this holdover proceeding pursuant to § 713(7) RPAPL, on the grounds that respondent is a licensee.
Respondent interposed an answer consisting of a general denial and several affirmative defenses. The third affirmative defense is that the proceeding must fail because petitioner failed to afford respondent an impartial administrative hearing prior to commencement of this proceeding, and that such hearing is a prerequisite for the commencement of a summary proceeding. The instant motion is brought to strike said affirmative defenses.
Respondent resides at an apartment in 108 W. 52 Street, N.Y., N.Y. owned and operated by petitioner Housing Authority. Respondent moved into the apartment then being occupied by his aunt who lived there alone, without petitioner's knowledge or approval. Thereafter on or about September 7, 1977, respondent's aunt died and respondent since then has continued to live in the apartment. Respondent does not have a lease to the apartment.
Petitioner contends that respondent is a mere licensee, and that since his aunt is no longer alive he is no longer entitled to reside in that apartment. Petitioner further contends that respondent is not entitled to an impartial hearing by reason of the fact that he is not a tenant in the premises. Admittedly no such hearing was held.
Congress made certain classes of people eligible for public housing. One of the categories eligible for public housing as "single" families is the remaining member of a tenant family. Such persons are entitled to an impartial grievance hearing before their tenancy is terminated. 42 U.S.C. § 1437a(1), 24 CFR 866.53(f), as are all other tenants of public housing.
There is no definition of the term "remaining member of a tenant family" in the Housing Act of 1937, as amended, 42 U.S.C. § 1437, or the regulations promulgated thereunder. "Remaining member of a tenant family" as interpreted by petitioner includes an adult who resided with their parent, public housing tenants as a member of the tenant's original household at the time of the death of the tenant/parent. This definition clearly excludes respondent, a nephew of the prior tenant. Petitioner vigorously argues that to extend the concept of "remaining member of tenant...
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Morrisania II Associates v. Harvey
...is not so protected. Such an interloper is not part of the class which the federal law sought to benefit. Cf. N.Y.C. Housing Authority v. Nesmith, 100 Misc.2d 414, 419 N.Y.S.2d 37. An "elderly family" is deemed to include a disabled head of household as defined by the Social Security Act (4......
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Auer v. Dyson
...189; Town of Amherst v. County of Erie, 236 A.D. 58, 61, 258 N.Y.S. 76, affd. 260 N.Y. 361, 183 N.E. 851; N.Y.C. Housing Authority v. Nesmith, 100 Misc.2d 414, 419 N.Y.S.2d 37. It also contends that its previous interpretations have been accepted by the Legislature or at least not questione......
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New York City Housing Authority v. Shephard
...as to who may become tenants or occupants of its apartments. Public Housing Law §§ 30, 37, 156. See also N. Y. C. H. A. v. Nesmith, 100 Misc.2d 414, 419 N.Y.S.2d 37 (1979). To permit the respondent to continue to live in the apartment under such circumstances would give him an unfair advant......
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Valley Dream Hous. Co., Inc. v. Schmidt, 2007 NY Slip Op 51747(U) (N.Y. Dist. Ct. 9/14/2007), SP 4992/06.
...that the named tenant dies or can no longer live in the unit (see, Morrisania II Associates v. Harvey, supra, cf. New York City Housing Authority v. Nesmith, 100 Misc 2d 414 [Civil Ct, NY Cty The term "family" includes an elderly family. An "Elderly family" is defined as follows: "Elderly f......