Opinion
4000353/11.
Decided July 11, 2011.
Upon a reading of the foregoing papers, it is ordered and Adjudged that this Article 78 Petition is granted, Petitioner is restored to the Section 8 Voucher Program.
Petitioner resides with her 13 year old daughter at 615 Westminster Road, Apt. 5C in Brooklyn, and uses a Section 8 Voucher to assist with the payment of her rent. On March 9, 2010 she submitted her Section 8 re-certification packet in person to NYCHA at 787 Atlantic Avenue in Brooklyn. In April she received a Notice of Termination dated April 26, 2010. She contacted NYCHA and was told to disregard the notice. In May she received a Notice of Default dated May 26, 2010, again she contacted NYCHA and was told to disregard the notice. In August her landlord informed her that her Section 8 benefits had been terminated. When she inquired from NYCHA she was informed that her benefits had been terminated because she had not submitted a re-certification packet. [see Petition Exhibits A, B, C].
Petitioner's Landlord, Westminster Holding, LLC., brought a non-payment Summary Proceeding to evict her from her apartment. Petitioner obtained Legal Counsel who, after filing a FOIL request and inspecting the file, discovered that her termination from the Section 8 Voucher program had been done in violation of the "Williams Consent Decree". Thereafter this Article 78 Petition was brought to reverse and annul Respondent's determination and reinstate petitioner to the Section 8 program retroactively and prospectively.
Respondent Cross-moves to dismiss the petition as moot because it is willing to reinstate Petitioner, if she submits a re-certification packet, obtains a lease from the landlord and passes a Federal HQS inspection.
At first glance this court notes that Petitioner was improperly terminated for "failure to submit a re-certification packet" when she had actually submitted the packet on March 9, 2010. It is therefore arbitrary and capricious for NYCHA to have terminated her benefits based on the failure to submit the package (Green v. Hernandez, 6 Misc 3d 1041(A), 800 N.Y.S. 2d 346 [NY Supreme Ct. 2005]). Petitioner was also improperly terminated because Respondent failed to follow its own rules and procedures for termination; In doing so Respondent denied Petitioner due process. This denial of due process renders its determination arbitrary and capricious (Green v. Hernandez, 6 Misc 3d 1041(A), Supra; Robinson v. Martinez, 308 AD2d 355, 764 N.Y.S. 2d 94 [1st. Dept. 2003]; Garner v. Tuckahoe Housing Authority, 81 AD2d 915, 439 N.Y.S. 2d 188 [2nd. Dept. 1981]).
Respondent's offer to restore Petitioner's benefits contingent on her completion of the re-certification process does not provide her with the relief she is seeking, accordingly, the petition is not moot and the cross motion must be denied (see Sowell v. New York City Police Dept., 292 AD2d 187, 739 N.Y.S. 2d 142 [1st. Dept. 2002]).
Accordingly, it is ORDERED and ADJUDGED that the petition is granted, Respondents JOHN B. RHEA, as chairman of the New York City Housing Authority and the NEW YORK CITY HOUSING AUTHORITY's termination of petitioner's section 8 rent subsidy effective July 31 2010 is reversed and annulled; and it is further
ORDERED that Respondents are DIRECTED to reinstate petitioner to the Section 8 program retroactive to July 31, 2010, the date of her termination; and it is further
ORDERED that Respondents are DIRECTED to pay Petitioner's landlord, WESTMINSTER HOLDING, LLC, its retroactive and prospective share of Petitioner's rent, and it is further
ORDERED that petitioner shall within 90 days from the date of this order submit a re-certification packet to Respondent, enter into a lease and HAP contract with her landlord, and allow Respondent to make a HQS apartment inspection.
This constitutes the decision, order and judgment of this court.