Smith v. N.Y.C. Hous. Auth.

Decision Date20 December 2013
Docket Number401019/2012
Citation999 N.Y.S.2d 298,46 Misc.3d 236,2013 N.Y. Slip Op. 23474
PartiesAudrey SMITH, Plaintiff v. NEW YORK CITY HOUSING AUTHORITY, Defendant.
CourtNew York Supreme Court

Audrey Smith, Pro Se.

Elena Madelina Andrei Esq., New York, for Defendant.



Defendant moves to dismiss the complaint based on documentary evidence and failure to state a claim. C.P.L.R. § 3211(a)(1) and (7). Plaintiff claims defendant violated her rights, as a resident of defendant's housing, to opportunities for employment by defendant or its contractors under 12 U.S.C. § 1701u, because defendant informed its Department of Resident Economic Empowerment and Sustainability (REES), which administers defendant's resident employment program, of her rent arrears. This program under 12 U.S.C. § 1701u, Section 3 of the federal Housing and Urban Development Act of 1968, is referred to as the Section 3 program. Plaintiff seeks lost wages for the claimed violation of her federal rights.


Plaintiff applied for defendant's resident employment program on September 6, 2011, and again on April 5, 2012. Between plaintiff's two applications, in early 2012, defendant commenced a proceeding against plaintiff claiming her nonpayment of rent. The parties settled the proceeding March 28, 2012, through a stipulation that provided for plaintiff's payment of $152 to defendant and its credit of $123 to plaintiff. At this point, defendant implicitly concedes it would have been inaccurate to convey that plaintiff's rent was in arrears. In fact plaintiff's exhibits to her complaint show that on March 30, 2012, defendant's employee at plaintiff's housing development notified REES in writing that the nonpayment proceeding was discontinued, and plaintiff was “at zero balance as a result of a credit due to the account, along with a payment in court.” The outcome of the nonpayment proceeding further suggests, as plaintiff insists, that her rent was not in arrears previously either, or, if it was, the amount was negligible, as well as disputed.

In contrast to defendant's documentary evidence, the complaint alleges, however, that a REES representative notified plaintiff that in June 2011 her application for a job opportunity was “discontinued ... due to rent arrears.” V. Compl. ¶ 4. The complaint then alleges that between June 2011 and March 2012 she repeatedly attempted to resolve defendant's efforts to collect rent arrears from her that she did not owe. Based on the complaint's exhibits, the dispute only was resolved through the stipulation dated March 28, 2012, in the nonpayment proceeding.

In sum, plaintiff's allegations regarding the REES representative's notification to plaintiff in June 2011 raise an inference that defendant conveyed to REES that plaintiff's rent was in arrears at a point when she disputed such a fact. The March 2012 stipulation resolving this dispute further reflects that the true facts may not have sustained defendant's claim.

Plaintiff does not specifically allege, and defendant's documentary evidence does not indicate, however, that, as of June 2011, she had applied for a job opportunity in defendant's resident employment program. Nor does she specifically allege that at any point after September 2011, when she undisputedly applied, defendant then discontinued or denied her application due to rent arrears.

This lack of specificity, however, does not defeat plaintiff's action altogether. For purposes of defendant's motion to dismiss her action, her allegations that she completed REES' orientation and in June 2011 was “placed on the list for construction” and “custodial maintenance ... to be the next for hire” may be construed as her completed application for or her enrollment in defendant's resident employment program in June 2011. V. Compl ¶ 3. This interpretation allows the further inference that the notice of discontinuance due to rent arrears followed the June 2011 application or enrollment.

A. Violation of 12 U.S.C. § 1701u(c)(1) or 24 C.F.R. § 135.30(b)(1) or 135.32(c)

Assuming defendant discontinued plaintiff's application for or enrollment in defendant's resident employment program in June 2011 for an unfounded reason, the issue becomes whether defendant owed plaintiff any duty to retain her in the program to the extent of hiring her or assisting her in securing employment. 12 U.S.C. § 1701u(c)(1)(A) requires defendant, its contractors, and their subcontractors to “make their best efforts ... to give low-income and very low-income persons the training and employment opportunities generated” by specified federal funding. These efforts must be prioritized to give those opportunities first to residents of defendant's housing developments where the funding is spent and second to residents of defendant's other housing developments. 12 U.S.C. § 1701u(c)(1)(B) ; 24 C.F.R. § 135.34(a)(1). Although the record does not indicate whether, since June 2011, defendant has spent federal funding subject to § 1701u(c)(1)'s requirements at the housing development where plaintiff resides, plaintiff is a member of at least one of the two priority groups. Defendant's “responsibility to comply” with 12 U.S.C. § 1701u(c)(1) “in its own operations” includes: “ Facilitating the training and employment” of its residents. 24 C.F.R. § 135.32(c).

Defendant may meet the statutory “best efforts” requirement through the employment of defendant's residents as 30% of employees hired by defendant, its contractors, or their subcontractors. 24 C.F.R. § 135.30(b)(1)(iii). Thus, even if defendant discontinued training and employment opportunities to plaintiff based on information that was false or that unfairly disparaged her, defendant would not have violated the “best efforts” requirement as long as defendant met this standard. Plaintiff has not alleged that defendant failed to meet this standard.

Nevertheless, defendant's additional “responsibility” was to facilitate the training and employment of its residents, such as plaintiff. 24 C.F.R. § 135.32(c). Viewing the complaint and evidence in her favor, defendant discontinued her application for or enrollment in its resident employment program from June 2011 until either September 2011, when defendant shows she subsequently applied, or April 2012, when defendant shows she reapplied and it had notified REES that her rent was not in arrears. This outright discontinuance hardly may be considered facilitating residents' employment. Id.

B. HUD's Administrative Remedies Do Not Address Plaintiff's Injury.

Assuming defendant failed to meet the 30% standard or, by discontinuing plaintiff's application or enrollment, failed to afford the statutory priority or meet defendant's responsibility to facilitate a resident's training and employment between June 2011 and April 2012, 12 U.S.C. § 1701u provides an administrative remedy. Marcel v. Donovan, 2012 WL 868977, at *5 (E.D.N.Y. Mar.14, 2012) ; Williams v. United States Dept. of Hous. & Urban Dev., 2006 WL 2546536, at *9 (E.D.N.Y. Sept.1, 2006). Plaintiff may complain to the Assistant Secretary for Equal Opportunity of the United States Department of Housing and Urban Development (HUD). 24 C.F.R. § 135.76(a)(1). HUD administers the federal funds to which defendant's resident training and employment obligations are tied. Although plaintiff might “obtain a voluntary and just resolution” from defendant through the HUD process, 24 C.F.R. § 135.76(f)(2), the relief HUD imposes on a public housing authority involuntarily, such as termination, suspension, or limitation of the housing authority's federal funds, would not provide redress to plaintiff. 24 C.F.R. § 135.76(g). E.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 287–88, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) ; Alexander v. Sandoval, 532 U.S. 275, 289, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ; Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 28–29, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) ; Williams v. United States Dept. of Hous. & Urban Dev., 2006 WL 2546536, at *9. See Rhodes v. Herz, 84 A.D.3d 1, 8, 920 N.Y.S.2d 11 (1st Dep't 2011) ; Delgado v. New York City Hous. Auth., 66 A.D.3d 607, 608, 888 N.Y.S.2d 19 (1st Dep't 2009). She seeks employment based on defendant's very receipt of federal funds, which if reduced or limited would curtail defendant's provision of the employment opportunities she seeks.

HUD's complaint process under 24 C.F.R. § 135.76 does not preclude plaintiff from seeking otherwise available redress through the judicial process, 24 C.F.R. § 135.76(j), and thus does not foreclose enforcement of 12 U.S.C. § 1701u(c)(1) or a regulation under the statute, if it creates rights enforceable by private individuals. Alexander v. Sandoval, 532 U.S. at 290, 121 S.Ct. 1511 ; Wilder v. Virginia Hosp. Assn., 496 U.S. 498, 508 & n. 9, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) ; Williams v. United States Dept. of Hous. & Urban Dev., 2006 WL 2546536, at *9. Plaintiff must demonstrate a remediable injury, however, for which redress is available.

C. Plaintiff's Injury

Although plaintiff has not alleged that defendant failed to meet the 30% standard, such an allegation likely is impossible without disclosure. C.P.L.R. § 3211(d) ; Amsellem v. Host Marriott Corp., 280 A.D.2d 357, 359, 721 N.Y.S.2d 318 (1st Dep't 2001) ; Cerchia v. V.A. Mesa, 191 A.D.2d 377, 378, 595 N.Y.S.2d 212 (1st Dep't 1993) ; Putter v. North Shore Univ. Hosp., 25 A.D.3d 539, 540, 807 N.Y.S.2d 624 (2d Dep't 2006) ; Bordan v. North Shore Univ. Hosp., 275 A.D.2d 335, 336, 712 N.Y.S.2d 155 (2d Dep't 2000). See Vasquez v. Heidelberg Harris, 265 A.D.2d 225, 696 N.Y.S.2d 456 (1st Dep't 1999). In any event, she does allege that defendant removed her from the priority group, 12 U.S.C. § 1701u(c)(1)(B), and failed to meet its “responsibility” to facilitate the training and employment of its residents. 24 C.F.R. § 135.32(c). To...

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