Opinion
SP 4785/07.
Decided September 3, 2008.
White, Cirrito Nally, LLP, Attorneys for Petitioner, Hempstead, New York, Michael Wigutow, Of Counsel Jeffrey Seigel, Nassau/Suffolk Law Services Committee, Inc., Attorneys for Respondents, One Helen Keller Way, Hempstead, New York.
Petitioner-Landlord, Freeport Housing Authority (hereinafter, "FHA") commenced this hold-over proceeding requesting a final judgment awarding it possession of 36 Albany Avenue, Apartment 2B of Freeport, New York, the issuance of a warrant to remove Respondents from possession thereof, as well as use and occupancy of the premises and costs and disbursements, including attorney fees for said litigation. Petitioner contends that Respondent Mrs. Janet Stewart is in violation of the subject lease when she failed to inform Petitioner at the recertification meeting in regards to her subject lease that her husband was residing in her apartment. A non jury trial was held by this Court on May 12, May 13, June 30, July 8 and July 10, 2008.
As per the forthcoming reasons, Petitioner's request for issuance of warrant to evict said Respondents from subject premises is hereby granted.
FACTUAL BACKGROUND
Respondent has been a member of the Freeport Housing Authority for thirty-four years. In 2004, the parties entered into a lease agreement for said premises governed by the Department of Housing and Urban Development (hereinafter "HUD"). The subject apartment is located in a three-storey walk-up, with fourteen housing units known as Moxey Rigby. The value of rent for each unit is based on the adjusted gross income of all family members residing in the household above the age of eighteen. Recertification requires all household members of the age eighteen and older to provide the Petitioner with their annual income and other personal documentation. Since she first took residency at the subject premise in 2004, Mrs. Stewart never listed her estranged husband, James Stewart, as a person residing in apartment 2B. Respondent and James Stewart were married 19 years. However, in 2006, after Mrs. Stewart had already been recertified, Petitioner became aware that Mr. Stewart was frequently using Mrs. Stewart's access card to enter the Moxey Rigby.
As a result, Petitioner served Respondent with a 30-day written termination notice on October 25, 2006. By Respondents request a grievance hearing was held with the Hearing Officer as supplied under the FHA guidelines. Based on the Hearing Officer's determination, an additional termination notice was served upon said Respondents on July 18, 2007. Respondent sought to challenge the Hearing Officer's determination in an Article 78 Proceeding at Nassau County Supreme Court, wherein Respondent's petition was dismissed by Judge Lally on February 27, 2008.
ISSUE
This Court must decide whether the Petitioner has proved that said Respondent illegally allowed Mr. James Stewart, an unauthorized person, to reside at 36 Albany Avenue, Apartment 2B, Freeport, New York, in violation of the applicable lease and regulations, which forms the basis for eviction.
DISCUSSION
According to Finkelstein and Ferrarra, Landlord and Tenant Practice in New York § 19:134, 137 at 19-45-46 (2004), Grounds for termination of a HUD regulated lease exist when there exist "one or more substantial lease violations . . . or failure to supply complete, accurate required eligibility information." Furthermore, 24 CFR 982.551 states that "The family must supply any information requested by the PHA or HUD for use in a regularly scheduled reexamination of family income and composition in accordance with HUD requirements." Even more specifically, 24 CFF 982.551(h)(2) provides that "The composition of the assisted family residing in the unit must be approved by the PHA . . . The family request PHA approval to add any other family member as an occupant of the unit. No other person [i.e., nobody but members of the assisted family] may reside in the unit."
Accordingly, at trial, Petitioner provided this court with the testimony of Edward W. Lancaster, Director of FHA. Mr. Lancaster testified that his decision to terminate Respondent's relationship with FHA was primarily based on the information supplied by Robert Pucci, a maintenance helper for FHA for over ten years, who observed Mr. Stewart's frequent visits to the subject premises over a three-month period (T. 26-27, May 13, 2008). Within a six-week span Mr. Stewart was caught on surveillance approximately 243 times using Ms. Stewart's card to access the subject complex (T. 37, May 13, 2008). Along with several hundred surveillance photos, the Petitioner provided the Court with an activity-log of every entry into Moxey Rigby made by James Stewart by use of Respondent's access card between the dates of August 1, 2006 and October 12, 2006. The logs show that Mr. Stewart created a pattern of entering and leaving the apartment in the afternoon and in the early morning hours of the day with a gap during the nighttime and early morning hours until sometimes in the late afternoon (T. 39, May 13, 2008). Based on the knowledge of the building's maintenance personnel, and the activity logs accompanied by the snap shots of Mr. Stewart entering the subject premise, Mr. Lancaster inferred that Mr. Stewart was illegally residing in apartment 2B with Ms. Stewart, which was a violation of the HUD lease.
In addition, Mr. Pucci testified at trial that he observed the date-stamped videotapes which recorded Mr. Stewart entering Moxey Rigby approximately 240 times during a 79 day period. Furthermore, Mr. Pucci testified that he observed Mr. Stewart hanging around on the complex grounds in the afternoons drinking with other residents. (T. 60-61, May 13, 2008). In addition, on several occasions, Mr. Pucci would personally encounter Mr. Stewart within Respondent's apartment while he was performing his routine extermination procedures. Id.
Petitioner called Police Officer Norval Curtis of the Freeport Police Department to the stand. Officer Curtis offered testimony in regards to three incidents on June 24, 2005, June 25, 2005, and November 15, 2006 to which he responded to calls made in regards to domestic disputes between Respondent and Mr. Stewart at the subject premises. (T. 5, June 30, 2008). The June 24, 2005 Police Report lists both James Stewart and said Respondent Janet Stewart as residing at 36 Albany Avenue, Apartment 2B, Freeport, New York. Furthermore, Officer Curtis testified that Janet Stewart supplied the address of both James and herself at the subject premises.
In regards to the June 25, 2005 incident, Officer Curtis testified that he responded to Mr. Stewart's call about another domestic dispute between the couple after midnight where Janet Stewart claimed that as a result of their argument, Mr. Stewart had to sleep on the couch because he was not allowed in the bedroom. (T. 13-14, June 30, 2008). On November 15, 2006, Officer Curtis testified that he answered a call made by Mrs. Janet Stewart regarding an argument between the couple concerning the fact that Mr. Stewart was not giving her enough help around the house. (T. 15-16, June 30, 2008). Mrs. Stewart supplied Officer Curtis with the addresses of both her husband and herself as residing at 36 Albany Avenue, Apartment 2B. (T. 16, June 30, 2008). On Cross-Examination, Officer Curtis testified that it was common procedure for an officer to request a form of identification for the parties in dispute to confirm their addresses. However, if a party does not have proper identification, the officer usually takes confirmation of residency from the complainant as proof of residency, depending on the circumstances (T. 19-21, June 30, 2008).
Petitioner questioned Mrs. Janet Stewart in regards to several incidents in which the Freeport Police Department responded to domestic disputes between her husband James Stewart and herself. There were several incidents in question, the dates are: October 11, 2005, July 6, 2005, November 15, 2006, and November 24, 2005, November 21, 2006 and January 9, 2008. On all reports both Mr. Stewart and Janet Stewart are listed as residing at 36 Albany Avenue, Apartment 2B, Freeport, New York. Mrs. Stewart signed a police report for each of the latter dates authorizing that "Any false statement made to this deposition is punishable to § 210.45 of the Penal Law." During questioning, Mrs. Stewart stated several times that she understood what type of document she signed and that her signature symbolized her act of swearing to what was written in the report under oath. On July 6, 2005 the recorded deposition given by Mrs. Stewart on the police report reads, "I have not been getting along with my husband for a while now. I'm going to file for divorce. Today when I asked him to leave and find someplace else to live, he got loud and cursed me out." Furthermore, the documented police report for November 15, 2006 quotes James Stewart stating, "My wife and I got into an argument because she want me to leave. I will leave, but I can't leave today." In reply respondent answered, "My husband does not help me and I want him out."
Accordingly, the evidence provided by the Petitioner clearly establishes that Janet Stewart permitted James Stewart to reside in her apartment without the knowledge or authority of the FHA.
Conversely, Respondent argues several discrepancies in Petitioner's arguments. Respondent contends: (1) Justice Lally's issued decision in Respondent's previous Article 78 proceeding is not binding on this Court; (2) Petitioner's notice of termination was lacking factual or legal grounds for termination; (3) Admittance of police reports and Officer Curtis' testimony should not be permitted because they were not the basis for Edward Lancaster's decision to terminate Respondents lease; and (4) Termination of Respondent's lease is a penalty that outweighs the harm caused. Accordingly, it is for this Court to determine the weight of Respondent's arguments.
AUTHORITY OF JUSTICE LALLY'S DECISION
In her February 27, 2008 decision, Justice Lally held that her court lacked the jurisdiction to hear said Respondent's Article 78 proceeding. Justice Lally reasoned that according to 24 C.F.R. § 966.57(c):
[a] decision by the hearing officer, hearing panel, or Board of Commissioners in favor of the PHA or which denies the relief requested by the complainant in whole or in part shall not constitute a waiver, nor affect in any manner whatever, any rights the complainant may have to a trial de novo or judicial review in any judicial proceedings, which may thereafter be brought in the matter.
Furthermore, Justice Lally reasoned that since FHA's determination to terminate Respondent's tenancy is not final, there lacks jurisdiction for a CPLR Article 78 hearing.
Accordingly, it is the obligation of this Court to determine whether Respondent violated the subject lease.
However, according to Siegel's, New York Practice § 443, at 748-749 (4th ed. 2006) when an issue that has previously been decided in another court is attempted to be relitigated, res judicata precludes the party from relitigating the issue and holds them to the previous decision. In the case at bar, Justice Lally held that the Respondent is entitled to a trial de novo, however she also decided the issue involving the notice of termination. Therefore, this Court is bound to Justice Lally's decision finding that "Ms. Stewart's challenge to the adequacy of the notice provided by the Freeport Housing Authority is [omitted] unavailing." Furthermore, even though Respondent raises the issue in regards to the adequacy of the notice of termination as a defense before this Court, she is precluded from doing so because the issue was heard and decided by Justice Lally, who stated:
Ms. Stewart's challenge to the adequacy of the notice provided by the Freeport Housing Authority is similarly unavailing. "A recipient of public assistance must be given timely and adequate notice detailing the reasons for a proposed termination and effective opportunity to defend the charges" [ Chase v Binghamton Housing Authority, 91 AD2d 1147, citing Goldberg v Kelly, 397 U.S. 254 (U.S. NY 1970)]. "Low-rent housing is . . . an interest to which due process rights apply" [ Chase v Binghamton Housing Authority, supra, citing Escalera v New York City Housing Auth., 425 F.2d 853 (2nd Cir. 1970), cert. den. 400 U.S. 853 (1970); Matter of Hines v New York City Housing Auth., 67 AD2d 1000]. Accordingly, "[s]pecific grounds constituting the basis for termination of a public housing authority tenancy must be stated in the written eviction notice." Chase v Binghamton Housing Authority, supra citing Public Housing Law § 156-c. Here, the notice provided the petitioner was adequate since it notified her what provision of the lease she was alleged to be in violation of. Moreover, this notice was sufficient: by pursuing the grievance procedure, the petitioner had an opportunity "to discover the specifics of the charges, refute, confront and cross-examine witnesses and be represented by counsel" ( Hall v Municipal Housing Authority for City of Yonkers, 57 AD2d 894, 895, mot. for lv. to app. den., 42 NY2d 805, app dism. 42 NY2d 973).
However, assuming arguendo, that this Court was not precluded by the doctrine of res judicata from deciding on the issue of whether the notice of termination adequately specified the factual and legal grounds for termination of the subject lease, this Court would rule in the same manner as Justice Lally. The subject lease clearly provides:
The PHA shall notify the Tenant of the specific grounds for any proposed adverse action by the PHA . . . The PHA shall notify the tenant of the opportunity for a hearing under the PHA's Grievance Procedures for a grievance concerning a proposed adverse action . . . The Notice of proposed adverse action shall inform the Tenant of the right to request such hearing. In the case of a lease termination/demand for possession, a notice of lease termination/demand for possession' shall constitute adequate notice of proposed adverse action.
In the case at bar, FHA specifically stated in their October 25, 2006 notice of termination that Respondent's tenancy was being terminated on the grounds that she permitted an unauthorized male to reside in her apartment. Furthermore, FHA specifically quoted provisions of the lease which were violated by Respondent and informed Respondent that she had the right to request a grievance hearing as well as access to documentation accumulated by FHA in regards to Respondents said violations.
ADMITTANCE OF EVIDENCE BEYOND THE FACTORS USED BY EDWARD LANCASTER TO DETERMINE TERMINATION OF LEASE
Respondent claims that Petitioner's submission of police reports into evidence as well as the testimony of Police Officer Curtis should be barred because Edward Lancaster testified that his decision to terminate Respondent's lease was based on his review of Respondent's access card activity as well as conversations with Robert Pucci.
However, this matter is before this Court as a trial de novo, which according to Black's Law Dictionary, 5th Edition a de novo trial should be treated "as if it had not been heard before and as if no decision has been previously rendered." Accordingly, both parties are permitted to submit evidence that will better establish the merits of their case. Furthermore, since the police reports were contained in the FHA's files pertaining to Respondent's case and were available for Respondents review prior to her grievance hearing with FHA, the subject reports and testimony are permitted for consideration and debate before this Court.
Even if evidence of the police reports and Officer's Curtis' testimony was barred from submission before this Court, Petitioner's record of James Stewart's prolific use of Respondent's access card for entry into Moxey Rigby is sufficient evidence to prove that Respondent permitted James Stewart, an unauthorized male to reside in her apartment.
The factual posture of this case comes within the purview of the holding in Cuevas v. Beacon Hous. Auth., 220 AD2d 179, 644 NYS2d 108 (3rd Dept 1996), wherein the court upheld the termination of petitioner's lease by the Hearing Officer for violations of her lease obligations:
We further conclude that the Hearing Officer's determination is supported by substantial evidence. It is clear that Dross, upon his arrest, gave police petitioner's address as his address, that Dross used petitioner's address for the purpose of voter registration and that Dross regularly was at the apartment and had his own key. Further, petitioner admitted that she was employed and failed to timely notify BHA. Petitioner's explanation for her conduct created issues of credibility which were resolved against her; we will not disturb the Hearing Officer's resolution of issues of credibility ( see, Matter of Lopez v Constantine, ___ AD2d ___, ___, 1996 NY Slip Op 02323 [3d Dept, Mar. 14, 1996]). We also conclude that eviction is not so disproportionate to the violations as to be shocking to one's sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233-234).See also, Coleman v. City of Yonkers Mun. Housing Authority, 254 AD2d 482, 679 NYS2d 624 (2nd Dept 1998), wherein the court held:
The record indicates that the petitioner allowed her son to reside in her apartment as an unauthorized occupant, and that the son sodomized another tenant after forcing her into the petitioner's apartment, and was thereafter convicted of sodomy in the first degree. These acts constituted "violations of a substantial obligation of the terms and conditions of the Lease" which warranted the penalty of eviction ( see, Matter of Cuevas v Beacon Hous. Auth., 220 AD2d 179, 644 NYS2d 108; Housing Auth. of New Orleans v Greene, 657 So.2d 552 [La], cert. denied 517 U.S. 1169, 116 S.Ct. 1571, 134 L.Ed.2d 670).
SEVERITY OF PENALTY
Lastly, Respondent argues that the penalty of terminating the subject lease and therefore, terminating Mrs. Janet Stewart from participating in subsidized housing provided by the FHA is a harsh penalty to impose on Respondent who has been participating in federally subsidized housing for approximately thirty (30) years. Respondent contends that such a penalty is excessive when the Petitioner failed to verify the video surveillance evidence with Respondent or question her as to how or why James Stewart was using her access card.
However, Respondent has failed to give any reason as to why James Stewart used her card to access Moxey Rigby on 243 separate occasions. The only reasoning Respondent gave for such occurrences was that her husband frequently visited their children and herself and the subject premises, and to help her after she had a medical procedure on August 1, 2006 (breast reduction). Respondent stated that she was back on her feet within a week or two (T. 31, July 10, 2008). However, such reasoning is not sufficient to dismiss Petitioner's claim that Respondent violated the lease. Conversely, Petitioner has supplied this Court with an abundant amount of evidence to prove that Mr. James Stewart was residing with Respondent in the subject apartment, in violation of the lease.
In addition, the lease entered into by the parties provides:
(A)(1) The dwelling units are for exclusive use and occupancy of the resident and his/her household, consisting of the following named individuals who will resident in the dwelling unit . . . Resident agrees that no other resident , ( "members of the household authorized to reside in the unit in accordance with the Lease"), shall live in the dwelling unit without permission of the PHA and that violation of this agreement shall be considered a serious violation and grounds for termination of this Lease
(A)(2) Members of Household: Janet Stewart, Head; Shaniqua Stewart, female under 18; Khaliek Stewart, male under 18.
(E)(1) The resident agrees:
To use the dwelling primarily as a private dwelling for himself/herself and members of the resident's family as listed in section A.2., above, and not to use or permit the use of the dwelling for any other purpose.
(E)(2) Not assign, sublet, or transfer possession of the dwelling, not to give accommodations to boarders, lodgers, or other persons not listed as occupants in section a.2., above.
Accordingly, this Court finds that Respondent has violated the subject lease by allowing her husband, James Stewart to reside in her apartment without the consent of the FHA. Therefore, as the lease provides, Respondent shall be evicted from said premises. Respondent's argument that she is a life-long participant with the housing authority does not give cause for a more moderate penalty to be imposed on her. In fact, given that Respondent has thirty (30) years experience with federally subsidized housing she is well aware of the rules and regulations provided in the HUD leases, and is well aware that such violations will lead to a termination of her lease.
DECISION
This Court finds that Petitioner proved by clear and convincing evidence that Respondent illegally permitted her estranged husband, James Stewart to reside in her apartment at 36 Albany Avenue, Apartment 2B of Freeport, New York .
As a result of violating her HUD lease, this Court grants Petitioner's application and Respondents are hereby evicted from said premises of 36 Albany Avenue, Apartment 2B of Freeport, New York, with the warrant stayed until November 30, 2008.