Opinion
2012-10-9
In re Ernest QUINONES, et al., Petitioners–Appellants, v. NEW YORK CITY HOUSING AUTHORITY, Respondent–Respondent.
Ernest Quinones, appellant pro se. Patrina Quinones, appellant pro se.
Ernest Quinones, appellant pro se. Patrina Quinones, appellant pro se.
Kelly D. MacNeal, New York (Melissa R. Renwick of counsel), for respondent.
TOM, J.P., MAZZARELLI, CATTERSON, RENWICK, DeGRASSE, JJ.
Judgment, Supreme Court, New York County (Donna M. Mills, J.), entered September 27, 2011, denying the petition to annul the determination of respondent New York City Housing Authority, dated February 22, 2011, which denied petitioners' application to vacate their second default and dismissed the proceeding, unanimously affirmed, without costs.
The hearing officer's determination that petitioners failed to establish a reasonable excuse for their default ( see Matter of Cherry v. New York City Hous. Auth., 67 A.D.3d 438, 439, 889 N.Y.S.2d 20 [1st Dept. 2009]; Matter of Daniels v. Popolizio, 171 A.D.2d 596, 597, 567 N.Y.S.2d 459 [1st Dept. 1991] ) has a rational basis in the record and is not arbitrary and capricious ( see Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ). Petitioners' excuses for failing to appear at the hearing were not supported by any documentation ( see Cherry, 67 A.D.3d at 438, 889 N.Y.S.2d 20). Furthermore, plaintiffs did not explain why they did not either attempt to adjourn the hearing or arrange for a representative to appear on their behalf ( see Matter of Corchado v. Popolizio, 171 A.D.2d 598, 567 N.Y.S.2d 460 [1st Dept. 1991];Matter of Trinidad v. New York City Hous. Auth., 2011 N.Y. Slip Op. 30599U, at 6, 2011 WL 972554 [Sup. Ct., N.Y. County 2011] ).
In light of petitioners' failure to establish a reasonable excuse for their default, we need not consider whether they established a meritorious defense to the charges of chronic rent delinquency, breach of rules and regulations, and non-desirability by permitting excessive loud music. We note, however, that petitioners' arguments and documentation submitted in support of their Article 78 petition are not reviewable as they were not part of the administrative record ( see Matter of Fanelli v. New York City Conciliation & Appeals Bd., 90 A.D.2d 756, 757, 455 N.Y.S.2d 814 [1st Dept. 1982],affd.58 N.Y.2d 952, 460 N.Y.S.2d 534, 447 N.E.2d 82 [1983] ).