Spady v. Mount Vernon Housing Authority

• Decision Date: 19 March 1973
• Citation: 341 N.Y.S.2d 552,41 A.D.2d 762
• Parties: Linda SPADY et al., Respondents, v. The MOUNT VERNON HOUSING AUTHORITY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 552

341 N.Y.S.2d 552

41 A.D.2d 762

Linda SPADY et al., Respondents, v. The MOUNT VERNON HOUSING AUTHORITY, Appellant.

Supreme Court, Appellate Division, Second Department.

March 19, 1973.

Before HOPKINS, Acting P.J., and MUNDER, LATHAM, GULOTTA and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to article 78 of the CPLR to review appellant's determination declaring petitioners ineligible for public housing accommodations, the appeal is from an interlocutory judgment of the Supreme Court, Westchester County, entered June 28, 1972, 333 N.Y.S.2d 557, which annulled the determination and remanded the matter to appellant for a full evidentiary hearing.

Permission to appeal from the interlocutory judgment is hereby granted by Mr. Justice Gulotta (see CPLR 5701, subds. (b), (c)).

Interlocutory judgment reversed, on the law, petition dismissed on the merits and determination confirmed, without costs.

Petitioners were not entitled to a full evidentiary hearing since they were not tenants in possession sought to be evicted (Matter of Williams v. White Plains Housing Auth., 62 Misc.2d 613, 309 N.Y.S.2d 454, affd. 35 A.D.2d 965, 317 N.Y.S.2d 935); nor were they entitled to the limited hearing afforded to a holdover tenant asserting a right to renew his lease in a Mitchell-Lama project (Matter of Fuller v. Urstadt, 28 N.Y.2d 315, 321 N.Y.S.2d 601, 270 N.E.2d 321). Where the applicant is not yet in possession and is found ineligible, he is entitled to be apprised of the 'reason or reasons for such ineligibility at a personal interview at the office of the housing authority' (Public Housing Law, § 156--a; Matter of Sumpter v. White Plains Housing Auth., 29 N.Y.2d 420, 328 N.Y.S.2d 649, 278 N.E.2d 892, cert. den. 406 U.S. 928, 92 S.Ct. 1803, 32 L.Ed.2d 130).

Following receipt of petitioners' application for housing, the appellant Authority notified them that it had been informed that petitioner Vincent Spady had also been known as Vincent 'Bentley' and that he had a criminal record under the latter name, charges which, if true, would result in petitioners' ineligibility. At a subsequent meeting of the Authority, a friend of petitioners spoke on their behalf. Nevertheless, the Authority found petitioners ineligible and so notified them by letter. Upon reconsideration of the application after the intervention of the Legal Aid Society and others on petitioners' behalf, a conference was held at which all views were aired. This conference was reported to a regular meeting of the Authority. The Authority unanimously adhered to its previous decision not to admit petitioners because they 'did not meet the standards of desirability of the State of New York.' Such standards are set forth in the State rules and regulations relating to State-aided low rent housing projects by municipal housing authorities (9 NYCRR 1627--7.2).

The Authority's investigation, meetings and conferences disclosed, and the Authority found as facts, that petitioner Vincent Spady had failed to reveal that he had also used the name Bentley; that under the latter name he had been arrested for burglary in the third degree and, in a separate incident, had been indicted for robbery in the second degree and grand larceny in the third degree.

It is true that no indictment was ever returned upon the burglary charge (the complaining witness having failed to testify before the grand jury) and that the robbery indictment was subsequently dismissed upon Spady's application to be certified to the Narcotic Addiction Control Commission (Mental Hygiene Law, § 210). However, he never denied the acts underlying these charges. Instead, his claim was one of rehabilitation. The Authority was entitled to disbelieve this claim, particularly where one part-time employer, Spady's uncle, would not give him a favorable reference and another more recent full-time employer stated he had fired Spady because of drugs 'and a lot of other things'.

Accordingly, we conclude that appellant's determination that petitioners were ineligible for public housing is neither arbitrary nor capricious. It has a rational basis and should be confirmed (Matter of Manigo v. New York City Housing Auth., 51 Misc.2d 829, 273 N.Y.S.2d 1003, affd. 27 A.D.2d 803, 279 N.Y.S.2d 1014, cert. den. 389 U.S. 1008, 88 S.Ct. 568, 19 L.Ed.2d 604; see, also, Matter of Edwards v. Mount Vernon Housing Auth., 39 A.D.2d 543, 331 N.Y.S.2d 920, mot. for lv. to app. den. 31 N.Y.2d 641, 337 N.Y.S.2d 1025, 289 N.E.2d 565; Matter of Fuller v. Urstadt, 28 N.Y.2d 315, 321 N.Y.S.2d 601, 270 N.E.2d 321, Supra).

MUNDER, LATHAM and GULOTTA, JJ., concur.

HOPKINS, Acting P.J., and BENJAMIN, J., dissent and vote to affirm, HOPKINS, Acting P.J., on the opinion of Special Term and BENJAMIN, J., with the following memorandum:

Once one is declared eligible for public housing accommodations a hearing is required if the status of eligibility is sought to be revoked. Further, the mere fact that the applicant is undergoing methadone treatment for narcotic addiction is not a rational basis upon which the Authority may properly determine that he is ineligible.

Petitioners applied for public housing on February 8, 1971, using their lawful names. They used forms provided by the Authority for this purpose and correctly gave all of the information requested. No inquiry, oral or written, was made as to use of other names. The Authority conducted an investigation into petitioners' eligibility, found them eligible, assigned them an apartment, and tendered a monthly lease to them which they executed on July 9, 1971. The Authority accepted one month's rent and a security deposit from welfare authorities on petitioners' behalf. Thereafter, the Authority received information adverse to petitioner Vincent Spady. It refused to execute the lease and, after informal conferences, the Authority notified petitioners of their ineligibility by letter dated July 14, 1971. On March 28, 1972, the Authority adhered to its original determination. The bases of ineligibility are fraud in the application in that petitioner Vincent Spady failed to disclose his use of the name Bentley, his arrest record and his certification to NACC as an addict.

Whether petitioners are entitled to a hearing on the charges which caused them to be declared ineligible is a matter of first impression to this court under the circumstances presented by this record. In Matter of Vinson v. Greenburgh Housing Auth. (29 A.D.2d 338, 288 N.Y.S.2d 159, affd. 27 N.Y.2d 675, 314 N.Y.S.2d 1, 262 N.E.2d 211) we held that a State agency owning and operating a low-rent public housing project could not arbitrarily evict a low-income tenant under an automatically-renewed monthly lease and that the agency had to meet the requirements of due process by giving the tenant notice of its reasons for the proposed eviction and an opportunity to rebut them. In Matter of Fuller v. Urstadt (35 A.D.2d 537, 313 N.Y.S.2d 160, revd. 28 N.Y.2d 315, 321 N.Y.S.2d 601, 270 N.E.2d 321) a majority of this court failed to apply the rule of Vinson (supra) to a public housing tenant whose three-year lease was not renewed. I dissented on the authority of Vinson (supra). On appeal, the Court of Appeals reversed this court's order and granted the petition to the extent of remanding the matter to the State agency for a limited hearing to be held after petitioners would be advised by the agency of the reasons for the refusal to give them a renewal lease. In Matter of Williams v. White Plains Housing Auth. (35 A.D.2d 965, 317 N.Y.S.2d 935) we considered the nature of the hearing to be afforded a public housing tenant whose eviction is sought. Thus, we held that minimal due process standards must be read into the relevant regulation:

'Among these standards are adequate notice both of the acts which form the basis of the tenant's alleged undesirability and the consequences of an adverse determination, together with the right to be represented by counsel, to confront witnesses and to challenge the evidence upon which the Authority relies in making its determination * * *.'

In Matter of Sumpter v. White Plains Housing Auth. (36 A.D.2d 728, 320 N.Y.S.2d 472, affd. 29 N.Y.2d 420, 328 N.Y.S.2d 649, 278 N.E.2d 892, cert. den. 406 U.S. 928, 92 S.Ct. 1803, 32 L.Ed.2d 130) the issue before us concerned the rights of a rejected Applicant for public housing. We held that such a person is not entitled to a full evidentiary hearing in each case of rejection and that, instead, it was sufficient for the Authority to comply with section 156--a of the Public Housing Law, which requires that an Applicant who is determined ineligible for public housing shall be informed that he may be apprised of the reason or reasons therefor at a personal interview at the Authority's office. We distinguished Williams (supra) on the ground that it involved the eviction of a tenant already in public housing. This distinction is critical (Matter of Sumpter v. White Plains Housing Auth., 29 N.Y.2d 420, 424, 328 N.Y.S.2d 649, 651, 278 N.E.2d 892, 893, Supra).

The instant case does not fall neatly into any of the decided cases. It is true that petitioners never entered into actual possession (see Matter of Williams v. White Plains Housing Auth., 35 A.D.2d 965, 317 N.Y.S.2d 935, Supra; Matter of Fuller v. Urstadt, 35 A.D.2d 537, 313 N.Y.S.2d 160, revd. 28 N.Y.2d 315, 321 N.Y.S.2d 601, 270 N.E.2d 321, Supra). It is also true that petitioners are not mere applicants (see Matter of Sumpter v. White Plains Housing Auth., Supra), since the Authority admitted in paragraph 22 of its answer to the petition that it had 'found the said Petitioner Vincent Spady to be eligible for admission, and agreed to lease an apartment to him and his wife.' The Authority also assigned petitioners an apartment, tendered its monthly lease to him and, upon his execution of the lease, accepted the first month's rent and a security deposit. In my opinion, petitioners...