Opinion
15724/2017
02-08-2019
NEW YORK CITY HOUSING AUTHORITY-FULTON HOUSES, Petitioner, v. Pedro ALICEA, Respondents.
David I. Farber, General Counsel, New York City Housing Authority, New York City (Harley D. Diamond of counsel), for petitioner. Ruth Uyesugi, guardian ad litem, pro se.
David I. Farber, General Counsel, New York City Housing Authority, New York City (Harley D. Diamond of counsel), for petitioner.
Ruth Uyesugi, guardian ad litem, pro se.
Jack Stoller, J. New York City Housing Authority - Fulton Houses, the petitioner in this proceeding ("NYCHA"), commenced this holdover proceeding against Pedro Alicea, the respondent in this proceeding ("Respondent") seeking possession of 418 West 17th Street, Apt. 10E, New York, New York ("the subject premises") on the ground that Respondent is licensee whose license NYCHA terminated. Respondent interposed an answer. The Court held a trial of this matter on January 25, 2019.
Neither party disputed the essential facts of this proceeding. NYCHA is the public housing authority in New York City. Public Housing Law § 401. Accordingly, NYCHA must comply with, inter alia , the provisions of 24 C.F.R. § 960.101 et seq . In order to set the rent for tenants, NYCHA must annually examine the income and household composition of its tenants. 24 CFR § 960.257(a). This inquiry takes the form of income affidavits that tenants execute. Respondent had previously lived in the subject premises with the prior tenant of the subject premises ("the prior tenant"), but his name did not appear on her income affidavits. However, the prior tenant had previously applied with NYCHA for approval to add Respondent to her household composition. NYCHA had denied the prior tenant's requests because of overcrowding.
The prior tenant died in June of 2016, leaving Respondent in possession of the subject premises. NYCHA effectuated service of a predicate notice on Respondent and then commenced this proceeding. The petition in this matter was first noticed to be heard on August 8, 2017. Adult Protective Services ("APS") then moved for the Court to appoint Respondent a guardian ad litem ("GAL") pursuant to CPLR § 1201. The Court granted the motion on June 15, 2018, appointing a GAL for Respondent.
APS is a subset of the Human Resources Administration of the City of New York that is charged with providing service to persons who are unable to, inter alia , manage their own resources and/or carry out the activities of daily living because of impairments, Social Services Law § 473 et seq .
Respondent obtained a grievance against NYCHA regarding his status as a remaining family member of the prior tenant. A grievance is a dispute brought by a remaining member of a tenant family, 24 C.F.R. § 5.403(6), to challenge a determination of NYCHA to deprive such an occupant of a tenancy. See 24 C.F.R. § 966.53(a), Figueroa v. Hernandez , 194 Misc 2d 413, 415, 753 N.Y.S.2d 669 (S. Ct. N.Y. Co. 2002). NYCHA denied Respondent's grievance at the development level. Respondent then sought a grievance at the borough level. NYCHA scheduled Respondent's grievance as such on September 22, 2017 and October 17, 2017, which was during the pendency of this proceeding. Respondent did not appear for either grievance and NYCHA thus denied his grievance. Respondent has not had an evidentiary hearing on his grievance.
Under normal circumstances, an administrative determination following a grievance hearing on a remaining family member issue at NYCHA is preclusive on Housing Court's ability to determine a succession defense. New York City Hous. Auth. Albany Houses v. Collins , 4 Misc. 3d 135(A), 2004 WL 1620875 (App. Term 2nd Dept. 2004). However, Respondent did not have a hearing. Under those circumstances, the Housing Court may entertain an affirmative defense of succession in a licensee holdover proceeding. See Henderson v. Popolizio , 76 N.Y.2d 972, 563 N.Y.S.2d 733, 565 N.E.2d 482 (1990) (a person claiming remaining family member status for a NYCHA apartment will be able to "present his [or her] side of the case at the eviction proceeding."), New York City Hous. Auth. v. Jackson , 13 Misc. 3d 141(A), 2006 WL 3437858 (App. Term 2nd Dept. 2006), aff'd , 48 A.D.3d 818, 853 N.Y.S.2d 138 (2nd Dept. 2008) (vacating a stipulation on the ground that a succession defense in a NYCHA apartment constituted an "arguably meritorious defense[ ]"), New York City Housing Authority v. Alexander , N.Y.L.J. July 18, 1996 at 21:3 (App. Term 1st Dept.)(granting motion to amend an answer to include an affirmative defense of succession because there was no grievance hearing), New York City Housing Authority v. Johnson , N.Y.L.J. June 3, 1992 at 21:5 (App. Term 1st Dept.)(affirming a dismissal of a licensee holdover proceeding commenced by NYCHA when the respondent was a member of the household with NYCHA's knowledge). Compare City of New York v. Scott , 239 A.D.2d 113, 114, 657 N.Y.S.2d 600 (1st Dept. 1997) (an administrative proceeding that gives a claimant for housing no meaningful opportunity to confront any statements and no notice as to how to challenge an adverse determination warrants permission to litigate the claim to remain in possession in Housing Court).
Unlike the cases cited above, not only did not Respondent not have an evidentiary hearing at NYCHA, Respondent did not have a GAL at the grievance process. Remaining family member grievants before NYCHA who cannot, inter alia , "adequately protect and assert [their] rights and interests" are entitled to the appointment of a GAL at the grievance hearing. Blatch v. Martinez , 2008 WL 4546531, 2008 U.S. Dist. LEXIS 114684 (S.D.N.Y. 2008). The Court's determination that Respondent requires a GAL in this matter compels the conclusion that Respondent would have required a GAL for the remaining family member grievance, given the substantial similarity between the standard Blatch ,supra , articulated to the standard for the appointment of a GAL in this Court.
CPLR § 1201 compels the appointment for a litigant who is "incapable of adequately prosecuting or defending [the litigant's] rights."
If NYCHA's administrative determination does not bind the Housing Court in the absence of an evidentiary hearing, NYCHA's failure to appoint a GAL for a grievant who needs one only compounds any infirmities therein. N.Y.C. Hous. Auth., Edenwald Houses v. Ramirez , 60 Misc. 3d 1231(A), 2018 WL 4326466 (Civ. Ct. Bronx Co. 2018). In the absence of such a binding administrative determination, Respondent's application, by his GAL, to dismiss this matter after trial has merit. NYCHA argues that a remaining family member grievance at NYCHA, even with a GAL, would be futile, as Respondent owes arrears in use and occupancy, which implicates his eligibility to be deemed a remaining family member. Matter of Valette v. N.Y.C. Hous. Auth. , 146 A.D.3d 704, 705, 46 N.Y.S.3d 84 (1st Dept. 2017). While NYCHA's argument is intuitively persuasive, the merits of a remaining family member grievance do not factor in an initial determination to provide a GAL for a disabled grievant. Be that as it may, use and occupancy arrears do not per se bar a remaining family member grievance to the extent that NYCHA should adjust the grievant's share of the use and occupancy and furnish documents to the grievant necessary to obtain assistance to pay arrears. Matter of Figueroa v. N.Y.C. Hous. Auth. , 141 A.D.3d 468, 469, 35 N.Y.S.3d 338 (1st Dept. 2016). In the absence of a GAL for Respondent before the remaining family member grievance, any possible record relating to this proposition remains undeveloped.
The Court finds instructive that even the appointment of a GAL for an occupant in an administrative hearing before NYCHA does not satisfy Blatch v. Hernandez , supra , 2008 WL 4826178, 2008 U.S. Dist. LEXIS at 92984, when the GAL at the hearing did not appear to understand the issues framed by NYCHA, testified without personal knowledge of relevant facts, and failed to offer evidentiary support on key factual issues. Matter of Russo v. N.Y.C. Hous. Auth. , 128 A.D.3d 570, 571, 10 N.Y.S.3d 49 (1st Dept. 2015).
If NYCHA denies an application to add an occupant to a household on the basis of overcrowding, NYCHA's subsequent denial of a remaining family member status to that occupant is not arbitrary or capricious, Aponte v. Olatoye , 30 NY3d 693, 697-98, 94 N.E.3d 466 (2018), a proposition that also supports NYCHA's argument regarding the futility of the appointment of a GAL at the administrative level. However, in other contexts, an occupant's continued residency at a NYCHA apartment together with NYCHA's denial of a tenant's applications to add that occupant to the tenant's household composition can potentially prove NYCHA's knowledge of the occupancy sufficient to confer a remaining family member status on the occupant. Figueroa , supra , 141 A.D.3d at 471-72, 35 N.Y.S.3d 338, Matter of Gutierrez v. Rhea , 105 A.D.3d 481, 485, 964 N.Y.S.2d 1 (1st Dept. 2013).
The holding in Aponte , supra , does not necessarily nullify the holdings in Figueroa , supra , 141 A.D.3d at 471-72, 35 N.Y.S.3d 338 and Gutierrez , supra , 105 A.D.3d at 485, 964 N.Y.S.2d 1, particularly to the extent that the Court limited the Aponte holding to the facts. In particular, the Court found that the occupant in Aponte did not "raise the question of whether and in what circumstance NYCHA might be required to do more than grant temporary residence in an overcrowded apartment to make a reasonable accommodation." Aponte , supra , 30 N.Y.3d at 699, 94 N.E.3d 466. To be clear, the record on this matter does not necessarily prove that Respondent is "disabled" as defined by relevant federal and/or New York statutes, nor that an accommodation for Respondent that would enable him to live in the subject premises is reasonable. Rather, the point is that the absence of an evidentiary hearing with a GAL to develop the record has consequences that militate against an abridgement of the requirements of Blatch , supra , 2008 WL 4546531, 2008 U.S. Dist. LEXIS at 114684 on the Court's perception of the merits of the remaining family member grievance. Thus, NYCHA did not prove, as a prima facie matter, that Respondent is a licensee whose license has been terminated, i.e., that he entered upon or occupied the subject premises under a personal, revocable, nonassignable privilege from NYCHA and who becomes a trespasser upon revocation of the privilege, Williams v. Williams , 13 Misc. 3d 395, 397, 822 N.Y.S.2d 415 (Civ. Ct. N.Y. Co. 2006), citing Rosentiel v. Rosentiel , 20 A.D.2d 71, 76, 245 N.Y.S.2d 395 (1st Dept. 1963) or, in the more NYCHA-specific context, that Respondent has not been a member of the prior tenant's family remaining in continuous occupancy up to and including the time that the prior tenant vacated and who was not otherwise eligible for public housing. Henderson , supra , 76 N.Y.2d at 972, 563 N.Y.S.2d 733, 565 N.E.2d 482, Figueroa , supra , 141 A.D.3d at 471-72, 35 N.Y.S.3d 338, Gutierrez , supra , 105 A.D.3d at 481, 964 N.Y.S.2d 1, Mangual , supra , N.Y.L.J. March 21, 1994 at 29:6.
Under normal circumstances, a dismissal of NYCHA's cause of action sounding in termination of a license after the close of NYCHA's case at trial would be with prejudice. CPLR § 5013. However, dismissal of this proceeding with prejudice would only beg the question as to Respondent's status vis a vis the subject premises. Respondent, by his GAL, did not interpose what amounts to a succession or remaining family-member defense. Respondent did not introduce evidence at trial sufficient to prove that he, in fact, has been a member of the prior tenant's family remaining in continuous occupancy up to and including the time that the prior tenant died and that Respondent was otherwise eligible for public housing, Henderson , supra , 76 N.Y.2d at 972, 563 N.Y.S.2d 733, 565 N.E.2d 482, Figueroa , supra , 141 A.D.3d at 471-72, 35 N.Y.S.3d 338, Gutierrez , supra , 105 A.D.3d at 481, 964 N.Y.S.2d 1, Mangual , supra , N.Y.L.J. March 21, 1994 at 29:6, which Respondent would have to do in order to prevail on such an unpleaded defense. Accordingly, the Court finds it proper to dismiss NYCHA's cause of action without prejudice to either party's cause of action and/or affirmative defense in any forum which may be appropriate, as per the discretion afforded by CPLR § 5013 to the Court.
This constitutes the decision and order of this Court.