Vialez v. New York City Housing Authority, 89 Civ. 8356 (DNE) (SEG).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation783 F. Supp. 109
Docket NumberNo. 89 Civ. 8356 (DNE) (SEG).,89 Civ. 8356 (DNE) (SEG).
PartiesAna VIALEZ, Plaintiff, v. The NEW YORK CITY HOUSING AUTHORITY, Emanuel Popolizio, individually and in his capacity as Chairman of the New York City Housing Authority, Defendants.
Decision Date18 June 1991

Bronx Legal Services (Jill Siegel, Judie Carasso and Lucy A. Billings, of counsel), Bronx, N.Y., for plaintiff.

Suzanne M. Lynn, General Counsel, New York City Housing Authority (Harry Steinberg, of counsel), New York City, for defendants.

OPINION

SHARON E. GRUBIN, United States Magistrate Judge:

Defendants seek summary judgment dismissing plaintiff's claims. The motion is granted in part and denied in part.

BACKGROUND

Plaintiff is a resident of the Castle Hill Houses, a housing project in the Bronx administered by the New York City Housing Authority. She lives in an apartment with her twenty-two-year-old daughter who is unemployed and supported by public assistance. According to plaintiff's affidavit, at all times relevant hereto, she was unable to speak and read English but able to both speak and read Spanish.1 On or about November 10, 1988, plaintiff received a Housing Authority "Notice" of a tenancy termination hearing to be held before a hearing officer on December 8, 1988. Plaintiff contends that the Notice was written solely in English; defendants, however, contend that the one-page form was in English on one side of the paper and in Spanish on the other. On the bottom of the English side of the page are the words "VEA AL DORSO," meaning SEE BACK. The Notice reads, inter alia:

At the hearing you may appear in person with such witnesses as you may desire, AND BE REPRESENTED BY COUNSEL OR OTHER REPRESENTATIVES OF YOUR CHOICE. If you desire legal representation and cannot afford a lawyer, it is suggested that you contact one of the agencies which provide free legal services. A copy of the procedures covering these proceedings is enclosed for your information.
IT IS IMPORTANT THAT YOU REALIZE THAT THIS HEARING WILL BE THE ONLY OPPORTUNITY TO BE
HEARD, THAT THE DETERMINATION BASED THEREON MAY RESULT IN YOUR EVICTION, AND THAT SUCH DETERMINATION MAY NOT BE CHALLENGED IN LANDLORD-TENANT COURT. ACCORDINGLY, IF YOU DESIRE TO CONTEST THE ABOVE CHARGES, YOU MUST REPLY TO THIS NOTICE AND APPEAR AT THE HEARING. OTHERWISE, YOU WILL BE DEEMED TO HAVE WAIVED YOUR RIGHT TO SUCH HEARING.

Attached to the notice of hearing was a "Specification of Charges" dated August 31, 1988. That form specified that the charge against plaintiff was "CHRONIC DELINQUENCY IN THE PAYMENT OF RENT, in that you have repeatedly failed to pay your rent when due." The document went on to list, for a nine-month period, the dates plaintiff's rent had been due and the later dates that the rent had been paid. It is undisputed that this Specification of Charges was written solely in English.

The parties dispute whether the Notice and the Specification of Charges were accompanied by a copy of the Housing Authority's "Termination of Tenancy Procedures." Defendants claim the procedures form was attached, while plaintiff claims she did not receive the four-page form.2

Although plaintiff claims herein that she did not understand the Notice and Specification of Charges forms because they were in English, she appeared at the Housing Authority's offices as scheduled on December 8, 1988.3 On that date the hearing was adjourned until January 17, 1989, when it was adjourned again to February 22, 1989 at which time it was held.4 At the hearing plaintiff was provided with an interpreter and proceeded pro se. The charges were read to her in Spanish by the interpreter.5 Plaintiff admitted that she paid her rent late, but claimed she did so because she lost one of her customers in her housekeeping business. Plaintiff had brought with her records of her income.

On February 28, 1989, the hearing officer rendered a decision terminating plaintiff's tenancy.6 The Members of the Housing Authority unanimously confirmed the hearing officer's decision and sent a copy of their "Determination," dated March 15, 1989, to plaintiff.7 Both the hearing officer's decision and the Authority's determination confirming it were in English only.

Plaintiff did not seek an appeal of the Housing Authority's determination. She apparently did nothing about her case until August 1989 when she received a holdover petition from the Bronx Housing Court that was issued as an automatic result of the Authority's determination. At that time she sought the help of Bronx Legal Services. With the help of counsel she applied to the Housing Authority in September 1989 to reopen the hearing, arguing that her circumstances had changed in that she had been paying her rent timely since July. The application to reopen was denied. Plaintiff did not seek an appeal of that denial or seek any other redress in the state courts. Rather, she brought the instant action under 42 U.S.C. § 1983 claiming violation of her federal civil rights. Defendants have agreed to stay eviction proceedings pending this action.8

Plaintiff pleads the following eight claims herein: (1) defendants' failure to recertify and adjust plaintiff's rent when notified by plaintiff of a change in her income violated her due process rights under the fourteenth amendment to the Constitution, in that defendants failed to follow their own regulations by timely lowering her rent; (2) defendants' failure to recertify and adjust plaintiff's rent violated 42 U.S.C. § 1437a, known as the Brooke Amendment to the United States Housing Act of 1937; (3) defendants' failure to provide plaintiff with notice of the charges against her or any notice in Spanish violated her fourteenth amendment right to due process; (4) defendants' failure to provide plaintiff with notice of the charges against her in Spanish violated 42 U.S.C. § 2000d et seq., 42 U.S.C. § 3604 and 24 C.F.R. § 1.4; (5) defendants' failure to provide plaintiff with the decision of the hearing officer in Spanish violated her fourteenth amendment right to due process; (6) defendants' failure to provide plaintiff with the decision of the hearing officer in Spanish violated 42 U.S.C. § 2000d et seq., 42 U.S.C. § 3604 and 24 C.F.R. § 1.4; (7) defendants' failure to provide plaintiff with notice of her right to appeal the hearing officer's decision violated her fourteenth amendment right to due process; (8) the hearing officer's failure to conduct a fair hearing, in that he did not fix the issues in the proceeding; examine witnesses and direct witnesses to testify; elicit and develop all relevant evidence; develop a complete record; and determine all relevant issues, violated 24 C.F.R. § 2.63 and the due process clauses of the United States and New York Constitutions. Plaintiff seeks declaratory and injunctive relief. She also seeks reimbursement of alleged rent overcharges, as well as attorneys' fees and expenses of this action.

DISCUSSION
I.

Under Rule 56(c) of the Federal Rules of Civil Procedure a motion for summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing out that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The nonmoving party then must meet a burden of coming foward with "specific facts showing that there is a genuine issue for trial," Fed. R.Civ.P. 56(e), by "a showing sufficient to establish the existence of every element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. at 2552.

The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion," Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir.1988); Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). But the court is to inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), and to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative, id. at 249-50, 106 S.Ct. at 2510-11; Knight v. U.S. Fire Insurance Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1295, 94 L.Ed.2d 151 (1987). To determine whether the nonmoving party has met his or her burden, the court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of the summary judgment motion. See, e.g., Knight v. U.S. Fire Insurance Co., 804 F.2d at 11-12.

Once the nonmoving party has successfully met the burden of establishing the existence of a genuine dispute as to an issue of material fact, summary judgment...

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