Russo v.

• Decision Date: 19 May 2014
• Citation: 986 N.Y.S.2d 800,44 Misc.3d 401,2014 N.Y. Slip Op. 24137
• Parties: In the Matter of the Application of Clara Josefina RUSSO, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.
• Court: New York Supreme Court

44 Misc.3d 401

986 N.Y.S.2d 800

2014 N.Y. Slip Op. 24137

In the Matter of the Application of Clara Josefina RUSSO, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules,

v.NEW YORK CITY HOUSING AUTHORITY, Respondent.

Supreme Court, New York County, New York.

May 19, 2014.

Kimberly Wong, Esq., NYCHA, New York, attorney for respondent.

Emily Jane Goodman, Esq., New York, attorney for petitioner.

ALICE SCHLESINGER, J.

If one were to identify cases illustrative of New York City Housing Authority (N.Y.CHA) policies and procedures that cry out for change, this case would be at the top of the list. Front and center is the highly unusual requirement that a husband must obtain formal written permission from NYCHA before his wife can move in with him—a requirement that the average married couple could and would never anticipate. Additionally, and extremely problematic for a good number of NYCHA tenants, is the manner in which NYCHA applies its succession policies and the manner in which its Hearing Officers conduct hearings for persons with no legal representation, limited education, limited English language abilities, and mental challenges.

As is readily apparent from the record in this case, the petitioner here, Clara Josefina Russo, presented with all those obstacles. And as demonstrated below, NYCHA's appointment of a guardian ad litem with no legal training to appear at the hearing with Ms. Russo, while superficially appropriate, did not lead to a just hearing that satisfied the requirements of due process of law. Rather, it simply gave the facade that due process concerns were being respected. And while it is not the role of this Court in a case such as this to direct NYCHA to change its policies, it is the role of the Court to determine whether the Hearing Officer's determination should be annulled as arbitrary and capricious and/or because the hearing failed to comport with due process of law.

Ms. Russo commenced this Article 78 proceeding, initially without counsel, to annul the July 18, 2012 determination by respondent NYCHA. In that determination (Pet., Exh. A), NYCHA approved the June 19, 2012 decision by NYCHA Hearing Officer Arlene Ambert denying Ms. Russo's request to remain in the apartment as the “remaining family member” of the deceased tenant of record Efrain Plumey, who had been Ms. Russo's husband. The sole basis for the Hearing Officer's decision was the finding that:

The Tenant [Efrain Plumey] did not receive written permanent permission of the Housing Authority for the Grievant [his wife Clara Russo] to reside in the subject apartment.

Background Facts

In or about 1993, Efrain Plumey became the tenant of the subject apartment 4A at 700 East 156th Street in NYCHA's Saint Mary's Park development in upper Manhattan. (Answer, Exh. K) ¹. At the time, Plumey was married to petitioner Clara Josefina Russo; in fact, they had been married since 1975 (Exh. V). Russo did not move into the apartment with Plumey at that time, but their daughter Anna Plumey, who had been born January 19, 1976, did, and Ms. Russo apparently visited her there on a regular basis over the years.

That pattern continued until some time before 2007 when Anna apparently moved to Webster Avenue in the Bronx, while Mr. Plumey remained in the apartment (Exhs.D–G). In the last income affidavit he filed in 2009, Mr. Plumey listed only himself as an occupant of the apartment (Exh. G). When asked the prior year to indicate on the form whether anyone in the household had a disability, he answered “no ... but I am 87 yr old” (Exh. F). NYCHA has not included in the Record that part of the form for 2009.

On May 30, 2010, Mr. Plumey passed away (Exh. L). Shortly thereafter, Ms. Russo reported the death to NYCHA and confirmed that she had been living there as Mr. Plumey's wife and that she wished to stay in the apartment and pay the rent herself (which she has been doing without fail). Much to her surprise, her request was denied because Mr. Plumey had not obtained NYCHA's permission for the co-occupancy. Specifically, the Project Manager wrote in the July 2, 2010 Project Grievance Summary (Exh. N) that:

Ms. Russo stated that she gave up her apartment to care for her husband Efrain Plumey who was ill. She further claims that she has been residing in the apartment for the last three years. Efrain [Plumey] passed away on 5/29/10. She is requesting residual tenancy. Ms. Russo has supplied the office with a death certificate (photo copy) and a copy of her 1975 marriage license to Efrain Plumey....

Clara Josefina Plumey ( sic ) has not been authorized to join the household. No request for permanent permission was present in the folder nor has any notation been found in the interview records. Ms. Russo has not been a household member at any time nor has she been listed on the original 1992 housing application. Due to her unauthorized occupancy she does not have residual tenancy rights.

The Borough Manager approved the Project Manager's disposition on January 31, 2011 (Exh. P). After noting that Ms. Russo had appeared for the Borough's review of the claim, the Manager indicated that Ms. Russo was not eligible for a lease because of the written permission requirement: “If Clara Josefina Russo was living in the apartment, it was without the written permission of the NYC Housing Authority.” The Manager then added: “NYC Housing Authority procedure GM–3692 states that the tenant of record must have obtained permission from management in writing to allow the remaining family member to reside in the household one year before he/she died or vacated the apartment.”

Ms. Russo continued to urge her position by writing a letter to the Management Office, dated February 17, 2011 (Exh. Q). In that letter, obviously drafted with someone's assistance, Ms. Russo explained why written permission had not been sought, stating:

I am writing this letter to request an appeal to your decision denying me the right to continue living in my current apartment. I understand that my husband, Efrain Plumey, did not put me on the lease and that technically I did not have the right to be there, but I believe it was a[n] oversight on his part due to our situation at home. First I was sick and he was taking care of me, and then he became gravely ill and I was taking care of him. I would very much like the opportunity to sign a lease in my name and continue living in my apartment. Please re-consider your decision and grant me this request.

A hearing was scheduled for July 1, 2011 (Exh. R). There, buried among pages of instructions, NYCHA states its defense that “Grievant is not a Remaining Family Member in accordance with the New York City Housing Authority Management Manual, Chapter VII, Section E.” However, nowhere is NYCHA's objection to Ms. Russo's succession request plainly stated. Indeed, but for the address on the notice, Ms. Russo's name is not mentioned anywhere, and it is unclear whether Ms. Russo even understood that she was the “Grievant.” NYCHA adjourned the hearing to October 12, 2011 and then to January 17, 2012, for reasons not specified (Exh. R).

However, the record suggests that at some point during that period NYCHA recognized that Ms. Russo was suffering from some type of mental disability, as a copy of the notice for the January 2012 date was also sent to “Grievant's Representative: Ellis Shratter GAL.” According to documents provided by NYCHA with its Answer, one of its attorneys Howard Brookman (the attorney who ultimately did the hearing) completed a NYCHA form entitled “GAL: Mental Competence Evaluation Request” on June 7, 2011 (Exh. S). There he requested that the NYCHA Social Services Department “evaluate the mental competence of” Ms Russo, who was then 72 years old. For a reason, he checked the box that said: “Thought Process: Within the past year, the resident has exhibited seriously confused and disordered thinking.”

Ms. Russo was apparently evaluated by a NYCHA Social Worker Winsome Mattis, who indicated on the form on June 20, 2011 (with emphasis in the original) that: “WE CONCLUDE THAT A GUARDIAN AD LITEM (GAL) IS NECESSARY IN THIS CASE AND RECOMMEND THE APPOINTMENT OF A COURT REFERRED GAL BECAUSE: We evaluated the tenant/resident but cannot determine that he or she is competent.” Supporting that conclusion was a multi-page evaluation form that included information confirming Ms. Russo's various limitations.

For example, the report indicated that Ms. Russo was receiving “SSI in the amount of $671.00 due to nerve problems.” She had been raised in the Dominican Republic and had completed only the 10th grade in High School. She had been living on Webster Avenue for many years but then gave up her apartment and moved in with her husband to care for him when he became ill.

Under the heading “MENTAL HEALTH HISTORY”, the Social Worker confirmed the precise nature of Ms. Russo's mental disability as follows:

Tenant stated that she was diagnosed as being Schizophrenic. Tenant told SW that she is being treated by Dr. Dora Cardenas, her psychiatrist, three days per week, and has a Social Worker, Ms. Maria Kramer 212 942–8500.

Tenant takes the following psychotropic medications:

Risperidone—1mg

Trihexphenidyl—2mg

Seroquel—400mg

Seroquel—50mg as needed ²

Reporting on the mental examination results, the Social Worker described Ms. Russo's thought process as “logical for the most part, up until she revealed that her dog is able to talk. She also stated that her dog prays with her.” She added that Ms. Russo “showed signs of hallucinations,” explaining that Ms. Russo “was cognizant that dogs are not able to talk but thinks her dog has special powers that enable him to communicate verbally.”

The Social Worker concluded the report as follows:

In light of the above mental assessment, SW is recommending a Guardian Ad Litem, due to Ms. Russo's mental impairment. SW believes that she may not be able to adequately assert her...