Opinion
400733/10.
Decided July 26, 2010.
Petitioner is pro se.
Attorney for Respondent: Corina L. Leske, Esq.
The application by pro se petitioner for an order pursuant to C.P.L.R. Article 78, reversing respondent's determination to terminate petitioner's tenancy is denied and the petition is dismissed.
Petitioner asserts that respondent's determination to terminate her lease should be reversed because it was the first time she owned dogs and because she has paid her outstanding rent balance and will continue to do so in the future. (Verified Petition, paragraph 3.)
Respondent opposes the application and submits a verified answer denying petitioner's claims. Respondent asserts that it terminated petitioner's tenancy after a hearing before an impartial hearing officer who found that 1) petitioner failed to register and maintain her dog in compliance with the Housing Authority's pet policy, and 2) petitioner chronically failed to pay her complete rent. According to respondent, the determination to terminate petitioner's tenancy was based on substantial evidence on both issues. First, the petitioner admitted to owning the pit bull that attacked her neighbor in the hallway outside petitioner's apartment, and she did not license the two pit bulls she owned. Second, petitioner admitted that she did not pay her rent on time; the rent ledger revealed that petitioner owed $1357.53 in rent arrears at the time of the hearing.
Respondent argues that petitioner's claims concerning the poor condition of her apartment are moot because she failed to establish that she filed a notice of claim in compliance with state law. Because judicial review is limited to the evidence adduced before the housing agency, the petitioner waives any claims not previously raised. Additionally, petitioner's current ledger reveals failure to pay use and occupancy for May and June 2010. Moreover, a failure to impose the penalties associated with the applicable rule violations is unfair to other tenants and enforcement is essential for respondent to maintain its federal funding. Therefore, due to the overwhelming evidence herein, petitioner's application should be dismissed.
Respondent also argues that in order to overturn a penalty imposed by an administrative agency such as the New York Housing Authority, the penalty imposed must shock the conscience as to its proportionality to the offense. The sanction must constitute an abuse of discretion as a matter of law for it to be reversed. Pell v. Board of Education, 34 NY2d 222, 237 (1974).
Not only does the Housing Authority's pet policy explicitly state that a failure to comply with its regulations is subject to termination-of-tenancy proceedings, but courts have frequently affirmed the penalty of termination when a tenant has possessed a dog in violation of the pet policy and the dog has inflicted injury upon other tenants. Livingston v. New York City Housing Authority, 23 AD3d 218, 219 (1st Dep't 2005).
The record shows that Petitioner owned two pit bulls, one of which ran out of Petitioner's apartment and attacked a neighbor in the hallway. The record also shows that Petitioner admitted to a Housing Assistant that she in fact was the owner of the dogs, she was responsible for them, and she did not license the dogs that she owned in accordance with the pet policy.
Courts have also repeatedly affirmed Housing Authority determinations to terminate tenancy based upon chronic rent delinquency. Scott v. Peekskill Housing Authority, 28 NY 610, 610-11 (1971). Petitioner admitted to the chronic rent delinquency and she did not dispute the amount owed. Her explanation that the unpredictable nature of her work makes it difficult for her to budget her finances is legally insufficient. Petitioner is aware of her rent obligations and a failure to enforce those obligations is unfair to other tenants who do satisfy their rent obligations.
The penalty of termination of tenancy clearly does not shock the conscience in this case. Petitioner's disregard for the Housing Authority's pet policy along with her inability to make timely rent payment a priority is conclusively proper grounds for termination.
Accordingly, it is hereby,
ADJUDGED, that the petition is denied and the proceeding is dismissed, without costs and disbursements to the respondent, New York City Housing Authority.