Velez v. Christian

• Decision Date: 30 August 1973
• Citation: 75 Misc.2d 159,347 N.Y.S.2d 536
• Parties: In the Matter of Flor Marie VELEZ, etc., Petitioner, v. Joseph CHRISTIAN, Chairman New York City Housing Authority, Respondent.
• Court: New York Supreme Court

Page 536

347 N.Y.S.2d 536

75 Misc.2d 159

In the Matter of Flor Marie VELEZ, etc., Petitioner, v. Joseph CHRISTIAN, Chairman New York City Housing Authority Respondent.

Supreme Court, Special Term, Kings County, Part I.

Aug. 30, 1973.

Thomas N. Rothschild, Brooklyn, for petitioner; by Robert L. Begleiter, Brooklyn, of counsel.

Edward W. Norton, New York City, for respondent.

SIMON J. LIEBOWITZ, Justice.

In this Article 78 proceeding petitioner seeks an order to annul the determination of respondent, New York City Housing Authority, denying petitioner's application for placement in low rent public housing.

The papers submitted reveal that on January 2, 1973 petitioner filed an application for housing with respondent under the name of Suarez, file #80206, stating that her family consists of nine persons; a son, Edward, age 19 was not listed as a member of the household.

On January 3, 1973 petitioner filed another application #80403 under the names Suarez, Solis and Velez. On this application Edward is listed as a member of the household.

On March 19, 1973 petitioner was informed that her application was denied because of the lack of verifiable income for her son, Edward.

On March 29, 1973 petitioner appeared at respondent's Review Board advising them that her son, Edward, did not reside with her. In a letter dated March 29, 1973 addressed to respondent's Review Board, petitioner reiterated that her son, Edward, did not reside with her but then concluded that he should be considered as a part of the family unit 'cause one day he would come home.'

However, on or about May 1, 1973 petitioner submitted a sworn statement of Joaquina Montanez, Edward's sister, affirming that Edward was residing with her. Edward likewise submitted a statement stating that he resided with his sister.

By letter dated June 18, 1973 respondent reaffirmed its original denial of petitioner's application.

Petitioner now brings this proceeding claiming that respondent's action was arbitrary and capricious. Petitioner also argues that she was denied an informal hearing of the issues in violation of her due process rights.

The right to an evidentiary hearing for parties whose applications for public housing have been denied has been examined by the Court of Appeals in the recent case of Matter of Sumpter v. White Plains Housing Authority, 36 A.D.2d 728, 320 N.Y.S.2d 472, affirmed 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.

In that case petitioner's application for public housing was rejected without specification of any ground other than he had been found ineligible whereas the pertinent statute (Public Housing Law, 156--a) provides that an applicant be apprised of the reasons for rejection at a personal interview. Special Term found that the Housing Authority's failure to state the reasons for its denial violated Section 156--a of the Public Housing Law and annulled the determination and remanded the matter to the Authority for a 'full evidentiary hearing'. On appeal the Appellate Division reversed on the law and granted the petition only to the extent that the matter be remanded for action consistent with Section 156--a of the Public Housing Law. The Appellate Division in reversing the Special Term held that on this question of providing a full evidentiary hearing a distinction must be made between an eviction of a tenant already in public housing and an initial application for housing. In the former case a full evidentiary hearing is indicated but not so in the latter situation. Stated differently, a party aggrieved by a loss of a pre-existing right or privilege may enjoy procedural rights not available to one denied the right or privilege in the first instance. The Appellate Division stated that the distinction is critical.

The Court of Appeals concurred in the ruling by the Appellate Division and held that the limitations imposed by the Appellate Division upon the hearing to be had upon remand were proper.

The Court of Appeals (p. 424, 328 N.Y.S.2d p. 651, 278 N.E.2d p. 893) in its decision stated the question for review as follows: 'Thus, the issue on this appeal . . . is whether the Appellate Division was correct in rejecting Special Term's holding that petitioner was entitled to a 'full evidentiary hearing', . . .'.

Petitioner seizes upon the phrase 'full evidentiary hearing' to suggest that the holding by the Court of Appeals is limited in its scope; that the Court of...