Opinion
403587/10
07-08-2011
Zina Brown, v. New York City Housing Authority,
Zina Brown, Pro Se Sonia Kaloyanides, General Counsel to New York City Housing Authority
Zina Brown, Pro Se
Sonia Kaloyanides, General Counsel to New York City Housing Authority
Manuel J. Mendez, J.
Upon a reading of the foregoing papers, it is ordered and adjudged that this Article 78 Petition is denied and the proceeding is dismissed.
Petitioner brings this Article 78 Petition to annul the Hearing Officer's determination dated November 24, 2010, following an administrative hearing, sustaining the administrative charges and terminating her tenancy.
Petitioner resides at 75 Lasalle Street Apt. 1B (Grant Houses) with her sons Christopher Brown, Joseph Brown and her niece Utopia Campbell [see Answer Exhibit A]. In November of 2004 Respondent served Petitioner with charges emanating from an incident that occurred on project grounds involving her son Christopher Brown. Respondent served Petitioner with a statement of charges seeking to terminate her tenancy for (1) Non-desirability "in that on or about June 16, 2004, on project grounds or in the immediate vicinity thereof, your son Christopher Brown, an authorized occupant of your project apartment did unlawfully possess marijuana; (2) Breach of Rules and Regulations in that you failed to cause an individual on the premises with your consent to refrain from illegal or other activity referred to in paragraph 12(e), (q) or [r] of the lease agreement." [see Answer Exhibit D].
Petitioner defaulted, and then moved to vacate her default. Her default was vacated by notice dated March 7, 2005. The matter was adjourned for a hearing and the charges were amended to add a second non-desirability count against Petitioner in that " on or about September 19, 2004..., you Zina Brown,.... were involved in a physical altercation with Victor Corporan, an unauthorized occupant of your project apartment."[case indexNo. 482/05].
That proceeding was terminated by a stipulation dated June 7, 2005, approved by the board on July 6, 2005, placing Petitioner on three (3) years probation and excluding Victor Corporan from the premises [see Answer Exhibit E].
On December 12, 2006 under index number 3696/07 Respondent served Petitioner with charges emanating from an incident that occurred on project grounds involving her son Christopher Brown. Respondent served Petitioner with a statement of charges seeking to terminate her tenancy for (A) Violation of Probation, (B) Non-desirability and [C] Breach of Rules and Regulations. The basis of these charges stemmed from Christopher Brown possessing alcoholic beverages and resisting arrest; and the presence of Victor Corporan in the apartment, despite having been permanently excluded. [see Answer Exhibit F].
That proceeding was terminated by a stipulation dated April 13, 2007, approved by the board on May 30, 2007, placing Petitioner on two (2) additional years of probation, following the completion of the first three years on case No. 482/05, and permanently excluding Victor Corporan from residing or visiting the apartment or project grounds. [see Answer Exhibit G].
On November 15, 2007 under index number 9762/07 Respondent served Petitioner with charges emanating from an incident that occurred on project grounds involving her son Christopher Brown. Respondent served Petitioner with a statement of charges seeking to terminate her tenancy for (A) Violation of Probation, (B) Non-desirability and [C] Breach of Rules and Regulations. The basis of these charges stemmed from Christopher Brown possessing Marijuana on two separate occasions on project grounds [see Answer Exhibit H].
That proceeding was terminated by a stipulation dated December 11, 2007, approved by the board on December 26, 2007 permanently excluding Christopher Brown from residing or visiting the apartment or project grounds. [see Answer Exhibit I].
On December 9, 2008 under index number 2116/09 Respondent served Petitioner with charges emanating from an incident that occurred on project grounds involving her son Christopher Brown. Respondent served Petitioner with a statement of charges seeking to terminate her tenancy for (A) Violation of Probation, (B) Non-desirability and [C] Breach of Rules and Regulations. The basis of these charges stemmed from Christopher Brown possessing Marijuana on project grounds and giving Petitioner's address as his address on three separate arrests during the month of September 2008 [see Answer Exhibit J].
That proceeding was terminated by a stipulation dated March 26, 2009, approved by the board on April 8, 2009 continuing the terms of settlement under the previous stipulations and placing petitioner under one additional year of probation at the conclusion of the probationary term under index 3696/07. [see Answer Exhibit K].
On May 5, 2010 under index number 4339/10 Respondent served Petitioner with charges emanating from an incident that occurred on project grounds involving her, her niece Utopia Campbell and two occupants of the apartment. Respondent served Petitioner with a statement of charges seeking to terminate her tenancy for (A) Violation of Probation, (B) Non-desirability and [C] Breach of Rules and Regulations. The basis of these charges stemmed from the New York City Police Department executing a search warrant on the premises on January 14, 2010. On execution of the warrant a crack pipe with residue and twist with crack cocaine were recovered. Petitioner, her niece and other occupants in the apartment were arrested and charged with possession of a controlled substance and drug paraphernalia. Additionally, on February 5, 2010 two occupants in the apartment engaged in a physical altercation. [see Answer Exhibit L, M, N, O, R, S, T, U, V, W].
An Administrative Hearing was held from June 8, 2010 through September 24, 2010, before Hearing Officer Ester Tominic Hines. On the date of the hearing Respondent presented the testimony of Angelo Morgante, an associate investigator for the NYCHA law department and the following exhibits: (1)Resident Lease agreement; (2) NYCHA occupant's affidavit of income; (3)case 482/05 Determination of Status; (4) case 3696/07 Determination of status; (5)case 9762/07 determination of status;(6) case 2116/09 determination of status; (7)search warrants (8) arrests reports; (9)property clerk invoices; (10)Criminal Court Affidavits.[see Answer Exhibit DD].
At the hearing Petitioner testified and presented documents to show that neither her son nor Pedro Hernandez resided in the apartment.
On November 9, 2010 Hearing Officer Tominic-Hines issued her decision sustaining charges 1, 7 and 9 and disposing that Petitioner's tenancy be terminated. NYCHA's Board approved Hearing Officer Tominic-Hines decision and disposition, to terminate Petitioner's tenancy, on November 24, 2010. [See Answer Exhibits DD and EE].
Petitioner requests that the Hearing Officer's determination, terminating her tenancy, be reversed on the grounds that the Stipulations of settlement placing her on probation are in violation of NYCHA's regulations. Respondent opposes and argues that Petitioner's argument is untimely, it should have been raised within four months of the stipulations.
"... A proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner...."[C.P.L.R. § 217(1)]. This abbreviated time frame is said to serve public policy by freeing government operations from the "cloud" of potential litigation [Best Payphones, Inc., v. Department of Information, Technology and Communications of City of New York, 5 NY3d 30, 832 N. E. 2d 38, 799 N.Y.S. 2d 182 (2005)]. An administrative determination becomes "final and binding" triggering the four month statute of limitations for commencing an Article 78 proceeding, when the petitioner seeking review has been aggrieved by it. [Rocco v. Kelly, 20 AD3d 364, 799 N.Y.S. 2d 469 [App. Div. 1st. 2005]; Yarbough v. Franco, 95 NY2d 342, 740 N.E. 2d 224, 717 N.Y.S. 2d 79 [ 2000]. The four month limitations period for Article 78 review runs from petitioner's receipt of the adverse determination [ Yarbough v. Franco, 95 NY2d 342, 740 N.E. 2d 224, 717 N.Y.S. 2d 79 ra.
The four month limitations period is applicable to claims challenging stipulations of settlement of administrative actions (Lockett v. New York City Housing Authority, 56 AD3d, 280 [1st. Dept. 2008]; Folks v. New York City Housing Authority, 27 AD3d 270 [1st. Dept. 2006]; Robinson v. Martinez, 308 AD2d 355 [1st. Dept. 2003; Blackman v. New York City Housing Authority, 280 AD2d 324 [1st. Dept. 2001].
Petitioner did not challenge the stipulation within the four month limitations period, therefore her challenge to the stipulations of settlement is time barred.
It is the function of the housing authority Hearing Officer to determine credibility and the weight to be accorded testimony given by a witness in a termination of public tenancy proceeding ( see Jimenez v. Popolizio, 180 AD2d 590, 580 N.Y.S. 2d 302 [App. Div. 1st. 1992]; Wooten v. Finkle, 285 AD2d 407, 728 N.Y.S. 2d 152 [App. Div. 1st. Dept. 2001]). Here the Hearing Officer found that " ...the testimony provided by NYCHA's Associate Investigator that the tenant and her niece Utopia Campbell pled guilty to disorderly conduct stemming from their arrest on January 14, 2010 after the execution of a search warrant in the subject apartment..... The tenant and her niece both pled guilty to disorderly conduct which is a violation; However, the tenant was on probation at the time that the violations occurred and has been placed on probation by NYCHA four times since 2005. The evidence presented by the tenant in mitigation based on her twenty-four year residency and that the tenant and Utopia attend substance abuse programs was considered but deemed insufficient to warrant the imposition of a lesser sanction. The tenant has demonstrated in the last five years of her residency a pattern of violating her tenancy obligations which resulted in four stipulations of settlement and probation. The terms of probation under the stipulations require strict compliance with all leasehold requirements which the tenant has repeatedly violated and NYCHA is now entitled to the relief requested."
Permanent exclusion encompasses the term visitation, as permanent exclusion disposition would be rendered meaningless if visitation were allowed (Gilmore v. Hernandez, 40 AD3d 410, 836 N.Y.S. 2d 143 [App. Div. 1st. Dept. 2007]). The finding that Petitioner violated the 2007 stipulation of permanent exclusion is supported by substantial evidence that she permitted her son Christopher Brown to visit her and reside in the apartment (See Patrick v. Hernandez, 309 AD2d 566, 765 N.Y.S. 2d 508 [App. Div. 1st. Dept. 2003] visit of son in tenant's apartment on at least one occasion support finding of breach of stipulation of permanent exclusion; Folks v. New York City Housing Authority, 27 AD3d 270, 812 N.Y.S. 2d 46 [App. Div. 1st. Dept. 2006] evidence that excluded persons were seen inside petitioner's apartment within the probationary period support hearing officer's finding).
The hearing officer properly determined that petitioner violated the terms of the settlement stipulations, the determination is supported by substantial evidence.
The Hearing Officer's decision and disposition to terminate Petitioner's tenancy is not a grossly disproportionate punishment (see Romero v. Martinez, 280 AD2d 58, 721 N.Y.S. 2d 17 [App. Div. 1st. Dept. 2001];Patrick v. Hernandez, 309 AD2d 566, 765 N.Y.S. 2d 508 [App. Div. 1st. Dept. 2003]).
On September 16, 2010 Respondent commenced a non-payment proceeding , under index number L & T 016191/10, to evict her from the premises . Petitioner defaulted and a judgment of possession and warrant of eviction were issued by the Hon. Debra Rose Samuels on December 3, 2010. This judgment and warrant preceded commencement of this article 78 proceeding. Civil Court's judgment and warrant are not subject to collateral attack, absent a showing, which has not been made here, that Civil Court lacks jurisdiction to award possession to the Housing Authority or order Petitioner's eviction (Bobian v. New York City Housing Authority, 55 AD3d 396, 865 N.Y.S. 2d 216 [1st. Dept. 2008]; Cherry v. New York City Housing Authority, 67 AD3d 438, 889 N.Y.S. 2d 20 [1st. Dept. 2009]).
Accordingly, for the foregoing stated reasons it is ORDERED and ADJUDGED that the Petition is denied and the proceeding is dismissed.