Opinion
31665/09.
Decided April 19, 2010.
Petitioner pro se, Respondent appeared by Sonya M. Kaloyanides, Esq. Acting General Counsel, NY, NY.
Petitioner DOREEN MOORE (MOORE), in this CPLR Article 78 proceeding, moves by order to show cause to annul and vacate the October 14, 2009 determination by respondent NEW YORK CITY HOUSING AUTHORITY (NYCHA), which terminated her tenancy in the Red Hook West House, at Apartment 2A, 80 Bush Street, Brooklyn New York. The NYCHA Board approved the September 28, 2009 decision of NYCHA Hearing Officer Desiree Miller, which found petitioner MOORE ineligible for continue occupancy of her apartment. Petitioner claims that NYCHA is discriminating against her because she "self-medicates" with marijuana to alleviate her epilepsy disability and NYCHA failed to provide her with an accommodation for her disability.
Respondent NYCHA opposes the instant order to show cause and seeks dismissal of MOORE's petition, alleging that: (1) NYCHA terminated MOORE's tenancy after establishing that in the three years prior to her administrative hearing petitioner MOORE pled guilty five times to criminal possession of a controlled substance in the seventh degree (Penal Law [PL] § 220.03); (2) MOORE has not established that she has a disability; and, (3) MOORE is not entitled to an accommodation for her ongoing illegal drug use. Further, NYCHA claims that its determination to terminate petitioner's tenancy is: consistent with the law; not arbitrary, capricious or an abuse of discretion; supported by substantial evidence and, proportionate to petitioner's offenses.
Petitioner's order to show cause is denied for the reasons to follow. Further, summary judgment is granted to respondent and the proceeding is dismissed.
Background
Petitioner MOORE and her family have been residents of Apartment 2A, 80 Bush Street, Brooklyn, New York for a number of years. The apartment is located in public housing owned and operated by respondent NYCHA.
NYCHA charged Petitioner MOORE several times in the last decade with non-desirability and breach of her lease. Petitioner and respondent, on May 22, 2006, executed a stipulation of settlement [exhibit D of verified answer] of various charges against petitioner with respect to the February 8, 2006 specification of charges against petitioner [exhibit C of verified answer]. These charges alleged, among other things: that petitioner violated her previous stipulated tenancy probation, because her sons, Christopher and Charles Moore, unlawfully possessed or possessed controlled substances with intent to sell from petitioner MOORE's apartment, on various dates; and, petitioner MOORE unlawfully possessed crack cocaine at her apartment on February 3, 2004. In her May 22, 2006 stipulation, petitioner MOORE agreed that: her sons are not authorized to reside in her apartment, at 80 Bush Street; her probation would continue until September 26, 2011; and, that she "understands that any violation of the Rules, Regulations, Policies or Procedures of the Authority shall constitute a violation of this Stipulation and will subject the Tenant to additional penalties, up to and including termination [exhibit D of verbified answer — ¶ 3 of Stipulation]." NYCHA approved the Stipulation on June 22, 2006 [exhibit E of verified answer].
Subsequently, NYCHA charged petitioner with non-desirability, breach of its rules and regulations, and chronic rent delinquency, on April 27, 2009 [exhibit J of verified answer]. Respondent, among other things, charged petitioner with: unlawfully possessing marijuana with intent to sell and acting with others, including a third son, Jacob Moore, to do so on November 21, 2008; permitting illegal drug activity in her apartment; unlawfully possessing at her apartment controlled substances on October 6, 2006, December 6, 2006, February 20, 2009 and April 20, 2007; allowing unauthorized occupants to reside in her apartment; violating terms of her lease by failing to refrain from illegal activities at her apartment; and, failing to have individuals on the premises with petitioner's consent refrain from illegal activities referred to in petitioner's lease. On August 20, 2009, NYCHA added a supplemental charge that petitioner unlawfully possessed a controlled substance at her apartment, on July 2, 2009, and the controlled substance was seized by the police pursuant to their execution of a search warrant at petitioner's apartment [exhibit L of verified answer].
Hearing Officer Miller commenced the administrative hearing on the charges against petitioner on August 11, 2009. The hearing was continued on September 22, 2009. NYCHA appointed a guardian ad litem to assist petitioner with her defense and he was present at the hearing. After the hearing, Hearing Officer Miller, in her September 28, 2009 decision [exhibit M of verified answer], sustained the charges listed above, while other charges were dismissed. Petitioner, by her guardian ad litem, admitted to violation of her probation. Numerous documents were introduced into evidence, including certificates of disposition for petitioner's five guilty pleas to PL § 220.03, criminal possession of a controlled substance in the seventh degree, a Class A misdemeanor, on October 8, 2006, December 6, 2006, April 20, 2007, February 20, 2009 and July 2, 2009.
Petitioner, at the hearing, asserted that she suffers from epilepsy and uses marijuana to avoid having seizures. She and her guardian ad litem argued that she needs to "self-medicate because doctors are afraid to prescribe the correct medicine [hearing transcript, p. 90, lines 4-5 ]." Petitioner offered several documents, into evidence, including: the report of an annual physical examination, conducted the day before the hearing, on September 21, 2009, by South Brooklyn Medical Administrative Services, which noted that petitioner has a "significant opiate/opioid abuse history, concomitant with other drug use indices . . . within a reasonable degree of medical certainty"; and, a letter, dated September 22, 2009, also from South Brooklyn Medical Administrative Services, stating that petitioner was currently enrolled in their methadone maintenance program. Petitioner and her guardian ad litem never specifically addressed petitioner's illegal use of drugs and her five misdemeanor convictions in the past three years for violation of PL § 220.03, criminal possession of a controlled substance in the seventh degree. Further, petitioner Moore and her guardian ad litem failed to present any medical evidence that petitioner suffers from epilepsy. The above-referenced September 21, 2009 physical examination report never mentions epilepsy and the doctor finds her neurological system "WNL" (within normal limits).
Hearing Officer Miller, in her findings, sustained the charges that petitioner possessed controlled substances on October 8, 2006, December 6, 2006, April 20, 2007, February 20, 2009 and July 2, 2009. In her Findings and Conclusions [exhibit M of verified answer — pp. 3], she wrote that:
The argument that Tenant used marijuana for medicinal purposes is not persuasive as a defense or mitigation. The charges that are sustained established that Tenant possessed a controlled substance, not marijuana. Furthermore, possession of marijuana is illegal in New York and as such, Tenant's possession of it could not have been deemed lawful conduct in this forum.
Then, Hearing Officer Miller concluded [exhibit M of verified answer — p. 4]:
Over the past 4 years, Tenant has possessed controlled substances on 5 occasions, the most recent possession having occurred on July 2, 2009, a mere 2 months ago. Tenant's continuing and recent drug related activities, which occurred in violation of a probation imposed in part because of Tenant's drug related conduct, do not suggest that the behavior is not likely to repeat. The record reveals that Tenant has been placed on probation for a total of 11 years now. However, probation has not been effective in ensuring Tenant's compliance with her leasehold obligations, nor has it curtailed Tenant's involvement in non-desirable behavior which endangers the health and safety of her neighbors. The Tenant's health was considered, but is insufficient to mitigate the sanction to be imposed. Termination of tenancy is now warranted.
NYCHA, on October 14, 2009, approved "the Hearing Officer's decision and disposition in this proceeding finding the tenant ineligible for continued occupancy. The tenancy shall therefore be terminated [exhibit N of verified answer]."
Petitioner commenced the instant Article 78 proceeding on December 11, 2009. Her order to show cause to stay her eviction, pending the determination of the instant petition, was signed by another Justice of this Court, in Part 72, the ex parte part, on December 15, 2009. The case was then assigned to my Individual Assignment Part, Part 27. The parties appeared before me for oral arguments on March 12, 2010 and April 9, 2010.
Article 78 Review Standards
The Court's function in a CPLR Article 78 proceeding is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious. ( Matter of Borenstein v New York City Employees' Retirement System, 88 NY2d 756, 760; Pell v Board of Educ. of Union School District No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 230-231). "Arbitrary action is without sound basis in reason and is generally taken without regard to the fact." ( Pell at 231).
A rational basis exists where the determination is "[supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination." ( Ador Realty, LLC v Division of Housing and Community Renewal , 25 AD3d 128, 139-140 [2d Dept 2005], quoting Pell at 231)." ( See Consolation Nursing Home, Inc. v Commissioner of New York State Dept. of Health, 85 NY2d 326, 331; 300 Gramatan Avenue Associates v New York State Div of Human Rights, 45 NY2d 176, 180); Sullivan County Harness Racing Ass'n v Glasser, 30 NY2d 269; Sewell v City of New York, 182 AD2d 469 [1st Dept 1992], lv denied 80 NY2d 756). If the reviewing court finds that the agency determination has a rational basis, supported by substantial evidence, such determination must be sustained. ( Navaretta v Town of Oyster Bay, ___ AD3d ___, 2010 Slip Op 03126 [2d Dept April 13, 2010]; Halperin v City of New Rochelle , 24 AD3d 768 [2d Dept 2005]; Dawson v Zoning Board of Appeals of Town of Southold , 12 AD3d 444 [2d Dept 2004]). When the decision under review is not arbitrary and capricious, the reviewing court in an Article 78 proceeding is prohibited from substituting its own judgment for that of the agency ( Morley v Arricale, 66 NY2d 665; Purdy v Kreisberg, 47 NY2d 354; Pell at 230-232).
Discussion
It is clear that there is substantial evidence to support NYCHA's administrative determination to terminate petitioner's tenancy. Petitioner's lease obligated her to refrain from criminal activity. Further, petitioner agreed, in the May 22, 2006 stipulation to settle the February 8, 2006 specification of charges, that she "understands that any violation of the Rules, Regulations, Policies or Procedures of the Authority shall constitute a violation of this Stipulation and will subject the Tenant to additional penalties, up and including termination." At the September 22, 2009 hearing, petitioner admitted, by her guardian ad litem, that she violated the terms of her probation. Moreover, certificates of disposition were introduced at the hearing demonstrating that on five previous occasions during the three prior years she pled guilty to criminal possession of a controlled substance in the seventh degree. "A criminal conviction, whether by plea or after trial, is conclusive proof of its underlying facts in a subsequent civil action and collaterally estops a party from relitigating the issue. ( S.T. Grand, Inc. v City of New York, 32 NY2d 300, 304-305; Merchants Mut. Ins. Co. v Arzillo, 98 AD2d 495, 502 [2d Dept 1984])." ( Grayes v Di Stasio, 166 AD2d 261, 262-263 [1d Dept 1990]). ( See Property Clerk of the NY City Police Dept. v Krasnik , 41 AD3d 245 [1d Dept 2007]; Launders v Steinberg , 39 AD3d 57 , 64 [1d Dept 2007]; Kaplan v Sachs, 224 AD2d 666, 667 [2d Dept 1996]).
Pursuant to CPLR § 7803 (3), "judicial review is limited to the question whether the measure or mode of penalty or discipline imposed' constitutes an abuse of discretion." ( Featherstone v Franco, 95 NY2d 550, 554, citing Pell, supra at 232-234]). Further, the Featherstone Court, at 554, instructed that in an Article 78 review of administrative sanctions, "the sanction must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law."
Citing Featherstone, the Court of Appeals, in Kelly v Safir ( 96 NY2d 32, 38), held that weighing whether a sanction shocks the judicial conscience, "involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general ( Pell, supra at 234)."
NYCHA's termination of petitioner's tenancy is appropriate. When a household is involved in drug-related criminal activities it does not shock the judicial conscience or is an abuse of discretion to terminate the tenancy. In Department of Housing and Urban Development v Rucker ( 535 US 125), a unanimous decision, the U.S. Supreme Court upheld the constitutionality and enforceability of public housing lease provisions permitting tenancy termination when drug-related criminal activities occur in public housing. The Rucker Court held, at 127-128, "Petitioners say that this statute requires lease terms that allow a local public housing authority to evict a tenant when a member of the tenant's household or a guest engages in drug-related criminal activity, regardless of whether the tenant knew, or had reason to know, of that activity. Respondents say it does not. We agree with petitioners." Moreover, "a tenant living in Federally subsidized housing is not permitted to continue occupancy if it is found that the tenant, or his or her household guest, has possessed illegal controlled substances either on or off the premises ( see, 42 USC § 1437d [l] [6]; 24 CFR 966.4 [f] [12] [i])." ( Willock v Schnectady Mun. Hous. Auth., 271 AD2d 818, 818-819 [3d Dept 2000]).
Petitioner MOORE agreed in her May 22, 2006 stipulation with respondent
NYCHA, "that any violation of the Rules, Regulations, Policies or Procedures of the Authority shall constitute a violation of this Stipulation and will subject the Tenant to additional penalties, up to and including termination." In New York City Hous. Auth., Gowanus House v Taylor ( 6 Misc 3d 135[A] [App Term, 2d Dept, 2d 11th Jud Dists 2005]) the Court held that "[h]aving agreed to be responsible for any drug-related activity and to be subject to an eviction therefor, tenant is charged with knowledge of the activity in her apartment and is deemed to have acquiesced therein." Further, "Justice requires that the other people living in the surrounding area not be subjected to having in their midst a premises that is used for the preparation and sale of narcotics." ( 88-09 Realty, LLC v Hill, 190 Misc 2d 286 [App Term, 2d Dept, 2d 11th Jud Dists 2001]). In the instant proceeding, petitioner MOORE pled guilty to PL § 220.03, criminal possession of a controlled substance in the seventh degree, on five separate occasions during the three years prior to her hearing. Appellate courts have affirmed tenancy terminations of NYCHA tenants convicted of violating PL § 220.03. "The tenant's plea of guilty to criminal possession of a controlled substance in the seventh degree was sufficient to support the hearing officer's determination . . . and the penalty of termination was not so disproportionate as to shock the conscience ( see Matter of Pell, 232-233)." ( Bradford v New York City Hous. Auth. , 34 AD3d 463, 464 [2d Dept 2006]). In Clendon v New York City Hous. Auth. ( 33 AD3d 913 [2d Dept 2006]), the Court upheld the tenancy termination of a woman who violated an agreement to exclude her husband from her apartment, after the husband was arrested for the possession of crack cocaine in a neighboring NYCHA building. "The penalty imposed does not shock the conscience" when "the petitioner knowingly permitted the possession and sale of drugs on the premises." ( Kearney v Hernandez, 60 AD3d 544 [1d Dept 2009]). Moreover, "the penalty of termination does not shock our sense of fairness" when police executing a search warrant found a gun, drugs and drug paraphernalia in an apartment. ( Bell v New York City Hous. Auth. ( 49 AD3d 284 [1d Dept 2008]). NYCHA's tenancy termination "determination was supported by substantial evidence" "after a search of [tenant's] apartment, pursuant to a search warrant, recovered inter alia, 159 ziplock bags of crack cocaine." ( Brown on v New York City Hous. Auth. ( 27 AD3d 733 , 734 [2d Dept 2006]).
Termination of tenancy in public housing has been found not to shock the conscience when the tenant was involved in drug-related activity. In Satterwhite v Hernandez ( 16 AD3d 131 [1d Dept 2005]), police found in petitioner's public housing apartment, 69 rounds of .22 caliber ammunition, 45 packets of heroin and 52 rocks of crack cocaine. The Court held that, "[w]hile we recognize the hardship to petitioner and her two minor children, we do not find that the penalty of termination shocks the conscience." In Walker v Franco ( 275 AD2d 627 [1d Dept 2000]) the Court found, at 627:
During a search of petitioner's apartment, which was conducted pursuant to a no-knock search warrant, 151 vials of crack cocaine, packaged and ready for sale, a beeper, and a number of plastic bags and empty vials were thrown from a window of the apartment. After entering the apartment, the police discovered clear plastic vials with various tops and several cell phones. A triple-beam scale was also seized from a closet.
In upholding the termination of tenancy, the Walker Court concluded, at 628:
Finally, we note that petitioner's claim that she was unaware of the drug activity taking place in her apartment strains all bounds of credulity since petitioner was placed on probation before as a result of her son's drug involvement. In any event, all residents of public housing have a right to live in a safe, drug-free environment, which right is not diminished by the length of petitioner's tenancy, or her claim of blind ignorance
Therefore, because petitioner MOORE's drug-related activities at Red Hook West Houses threaten the safety of other residents and NYCHA employees, her tenancy termination is necessary to protect petitioner's law-abiding neighbors and Housing Authority employees. NYCHA's termination of tenancies which pose a danger has a worthwhile deterrent effect, while failure to enforce tenant obligations is demoralizing to the public housing community. The Court of Appeals in Pell, supra at 234, recognized that the prospect of deterring others in similar situations is a legitimate factor to consider in judging the fairness of a sanction.
Petitioner alleges that her tenancy was terminated because she uses marijuana to "self-medicate" her epilepsy. She failed to present any evidence that she has epilepsy other than her self-serving statements. However, even if she has epilepsy and uses marijuana this is not the reason that NYCHA terminated her tenancy. Her tenancy was terminated for her repeated possession of controlled substances and her five convictions for violation of PL § 220.03. Hearing Officer Miller stated in her Findings and Conclusions, as previously quoted, "[t]he charges that are sustained established that Tenant possessed a controlled substance, not marijuana." Marijuana is not a controlled substance, pursuant to PL § 220.00 (5). ( See People v Gabbidon , 40 AD3d 776, 777 [2d Dept 2007]). "[T]he Legislature enacted the Marihuana Reform Act of 1977, which amended the definition of a controlled substance set forth in Penal Law § 220.00 (5) to specifically exclude marihuana . . . (see L. 1977, ch. 360, § 4)." ( People v Dan , 55 AD3d 1042 , 1044 [fn. 2] [3d Dept 2008]).
Petitioner argues that termination of her tenancy constitutes a failure to provide a reasonable accommodation for her disability and violated the disabilities statutes. This argument lacks merit. Petitioner MOORE has not established that she has a qualifying disability and whether that disability is epilepsy or drug addiction. Even if NYCHA terminated her tenancy for illegal use of marijuana that would not be a denial of a reasonable accommodation for a disability. The legality of the use of controlled substances and marijuana is a matter for the Legislature. NYCHA is not required to provide petitioner with an accommodation that allows her to engage in illegal activities.
Federal regulations that implement that Americans with Disabilities Act provide that "[t]he term individual with a disability does not include an individual who is currently engaging in the illegal use of drugs, when the public entity acts on the basis of such use." ( 28 CFR § 35.104). In Blatch ex. rel. Clay v Hernandez ( 360 F Supp 2d 595 [SD NY 2005]), a class action on behalf of NYCHA tenants, some with mental disabilities and others subject to eviction proceedings, the Court rejected the argument that a tenant who is an illegal drug user is shielded from NYCHA's efforts to terminate his or her tenancy on the basis of drug use. The Court held, at 633-634:
Plaintiffs' arguments regarding failure to "accommodate" drug use-related tenancy issues must fail to the extent they suggest that waiver or modification of drug use prohibitions would be a reasonable modification. An individual who is a current illegal drug user is exempted from the definition of "qualified individual with a disability" if action is being taken on account of the illegal drug use. 28 CFR § 35.104 (2005); 29 CFR § 1630.3 (a) (2005). Thus, neither the mentally-disabled status of a current illegal drug user against whom action is taken based on that drug use, nor the mentally-disabled status of a person who depends on the drug user for assistance, is a viable basis for a claim that NYCHA is required to accommodate the disabled person by changing its generally-applicable rules relating to such activity.
Moreover, the Federal Rehabilitation Act of 1973 "provides that the term individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs, when a covered entity acts on the basis of such use. 29 U.S.C. § 705 (20) (C) (i)." ( Gilmore v University of Rochester Strong Memorial Hosp. Div., 384 F.Supp.2d 602, 611 [WD NY 2005]). In Riddick v City of New York ( 4 AD3d 242 [1d Dept 2004]), a New York City Police Department (NYPD) detective negotiated a plea agreement with NYPD for various disciplinary infractions, including an alcohol problem, that allowed the Police Commissioner to terminate him at any time for a violation of the agreement. After Detective Riddick violated the agreement he was terminated. Detective Riddick then commenced an Article 78 proceeding against the City, claiming discrimination because of his alcohol dependency. Detective Riddick had a substance problem that he was unsuccessful in solving by rehabilitation The Riddick Court instructed, at 245-246:
Turning to the merits, we note that alcohol dependency qualifies as a disability under the Human Rights Law (Executive Law § 292 [21] [a]). ( see Matter of McEniry v Landi, 84 NY2d 554, 559 [1994]). After a plaintiff establishes a prima facie case that the complained-of conduct was causally related to his or her disability, the burden shifts to the defendant to show that the disability prevents him or her "from performing the duties of the job in a reasonable manner or that the employee's termination was motivated by a legitimate nondiscriminatory reason" ( id. at 558). Plaintiff's reliance on McEniry is misplaced. There, the Court of Appeals interpreted the Human Rights law to protect a rehabilitated or rehabilitating substance abuser from retroactive punishment by his or her employer. In finding for the petitioner, the Court of Appeals warned that "[o]ur holding is not intended to create a safe haven for individuals who resort to recovery programs as a pretext for avoiding otherwise legitimate disciplinary action, or do we imply that in every case where an alcoholic is purportedly rehabilitated all disciplinary action is prohibited" id. at 560).
When NYCHA made the determination to terminate petitioner Moore's tenancy, she was not a former drug user nor at the time of her hearing. In Iannone v ING Financial Services, LLC ( 49 AD3d 391, 392 [1d Dept 2008]), the Court instructed:
In the case of drug addiction, the term "disability" is applicable only to a person who is recovering or has recovered , and is currently free of such abuse; it does not include an individual who is currently engaging in the illegal use of drugs (Administrative Code of City of NY § 8-102 [16] [c]). The General Regulations of the New York State Division of Human Rights similarly provide that drug addiction is a disease, and a " recovered/recovering" addict is entitled to protection under the Human Rights Law, whereas a current drug abuser is not ( 9 NYCRR 466.11 [h] [1]). Where the employer has knowledge of the current use of illegal drugs, the employee is not entitled by law to an accommodation for treatment, and may be terminated (9 NYCRR 46.11 [h] [4]). [ Emphasis added ]
Thus, NYCHA did not fail to provide petitioner MOORE with a reasonable accommodation for a disability. Rather, NYCHA terminated petitioner's tenancy for her repeated drug-related criminal activities in and around the Red Hook West House where she lives.
CPLR § 3017 relief appropriate to the proof
In this Article 78 proceeding, the relief demanded by petitioner in both the instant order to show cause and the petition is similar, namely annulling and vacating petitioners' tenancy in the Red Hook West House. Petitioner did not seek summary judgment. My denial of the instant order to show cause will not dispose of the petition and might compel NYCHA to move for summary judgment and dismissal of the petition. This possible prospective and superfluous motion practice will consume scarce judicial resources. Therefore, the procedural posture of the instant Article 78 proceeding allows the Court in the interest of judicial economy to invoke CPLR § 3017 (a) and dismiss the underlying petition, as well as the instant order to show cause. CPLR § 3017 (a) states, in relevant part, "the court may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as are just."
In Kaminsky v Kahn, 23 AD2d 231, 236 [2d Dept 1965], the Court instructed: The Supreme Court in this State is a court of general original jurisdiction in law and equity (see NY Const., art. VI, § 7, subd. a.) and, in conformity with its all inclusive powers, the court is authorized in any action to render such judgment as is appropriate to the proofs received in conformity with the allegations of the pleadings , irrespective of the nature of the relief demanded, subject, of course, in a proper case, to the imposition of such terms as may be necessary to protect the rights of any party. ( See CPLR 3017, subd. [a] ). The court, within the framework of the pleadings in any case, may draw upon its broad reservoir of powers established by law or formulated under the principles of equity, and utilize any of them to afford complete relief to a party. ( Cf. Susquehanna S.S. Co. v Andrson Co., 239 NY 285, 294 [1925]). [ Emphasis added ]
Citing Kaminsky v Kahn, the Court in Leader v Durst ( 26 AD2d 705, 706 [2d Dept 1966]), held that "[i]n conformity with its all inclusive powers the Supreme Court may . . . utilize its broad powers to afford the parties complete relief within the framework of the pleadings." ( See Nowak v Wereszynski, 21 AD2d, [4th Dept 1964]).
Judge Bellacosa commented about the Supreme Court invoking its "broad reservoir of powers," pursuant to CPLR § 3017 (a), in a unanimous 7-0 Court of Appeals decision. ( State v Barone, 74 NY2d 332, 336). He called this "our peerless feature of Anglo-American jurisprudence." Further, at the same page, he warned that "the limitations on the variety, flexibility and sweep of its potential application must be reflected in a proportionate, prudential discretion by the initial equity trial court."
The instant proceeding calls for the use of CPLR § 3017 (a) "in a proportionate, prudential discretion" by this Court. Therefore, in the interest of judicial economy and to deter wasteful motion practice in this Article 78 proceeding, I find it appropriate, from the proof offered, not only to deny petitioner's order to show cause, but also to grant summary judgment to respondents and dismissal of the instant petition.
The proof presented by respondents makes a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. ( Alvarez v Prospect Hospital, 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). It is clear, pursuant to CPLR Rule 3212 (b), that in the instant petition "the cause of action . . . has no merit" as a matter of law. Petitioner is unable to bear the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v City of New York, supra at 562; see also Romano v St. Vincent's Medical Center of Richmond, 178 AD2d 467, 470 [2d Dept 1991]; Tessier v New York City Health Hospitals Corp., 177 AD2d 626 [2d Dept 1991]). The evidence presented requires the Court to grant summary judgment to respondent NYCHA. There are no triable issues of material fact. The instant petition is dismissed. ( Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065)
Conclusion
Accordingly, it is
ORDERED, that petitioner DOREEN MOORE's order to show cause to annul and vacate the October 14, 2009 determination by respondent NEW YORK CITY HOUSING AUTHORITY, which terminated her tenancy in the Red Hook West House, at Apartment 2A, 80 Bush Street, Brooklyn New York, is denied; and it is further
ORDERED, that pursuant to CPLR § 3017 (a), it is appropriate to the proof in this special proceeding to grant respondents NEW YORK CITY HOUSING AUTHORITY summary judgment and dismissal of the instant petition.
This constitutes the Decision and Order of the Court.