NEW YORK CITY HOUSING AUTHORITY v. VELAZQUEZ (2001)

Final judgment affirmed without costs.

 We affirm the final judgment for the reasons stated by this court in New York City Hous. Auth. v. Williams, 179 Misc.2d 822, 687 N.Y.S.2d 539 and by the Appellate Term, First Department, in New York City Hous. Auth. v. McClinton, 184 Misc.2d 818, 711 N.Y.S.2d 293.   As noted in these decisions, pursuant to the Federal consent decrees, the claim that a tenant is ineligible for continued occupancy is determined by the Housing Authority, and its determination is subject to review only in a CPLR Article 78 proceeding (see, New York City Hous. Auth. v Clemente, NYLJ, Sept. 23, 1994 [AppTerm, 1st Dept];  New York City Hous. Auth. v. Thoms, NYLJ, June 17, 1993 [AppTerm, 1st Dept] ). The ensuing holdover proceeding is predicated only on a 30-day notice, and it is not an element of the Housing Authority's proof in the holdover proceeding to establish that there has been a breach of the lease.   Thus, the proceeding is not “based on a claim that the tenant or lessee has breached a provision of the lease ․” (RPAPL 753[4];  cf., Lufkin v. Drago, 126 Misc.2d 177, 481 N.Y.S.2d 850, affd. 129 Misc.2d 1108, 498 N.Y.S.2d 334 [RPAPL 753(4) is inapplicable to nonprimary residence holdover proceedings, which are predicated on a ground for nonrenewal and not upon a “breach” of the lease] ).

Contrary to the view of the dissenting justices in McClinton and Williams, our holding in Fairbanks Gardens Co. v. Gandhi, 168 Misc.2d 128, 645 N.Y.S.2d 262, affd. 244 A.D.2d 315, 665 N.Y.S.2d 540 [failure to sign renewal lease deemed breach of a lease obligation] does not require a different result.   In the case of a failure to sign a renewal lease, the adjudication of whether there has been a “breach” is made in the holdover proceeding.   Here, as noted, the adjudication of tenant's ineligibility for continued occupancy is made following a full evidentiary hearing by the agency and is reviewable only in an Article 78 proceeding.   The adoption of a broad interpretation of RPAPL 753[4] in these circumstances would permit the Civil Court to grant a cure period and to reinstate a tenancy where the agency's determination that the tenant is no longer eligible for continued occupancy has been upheld by the Supreme Court and/or the Appellate Division.   The fact that the instant tenant did not avail herself of the existing avenue of review (e.g., Matter of Williams v. Franco, 262 A.D.2d 45, 691 N.Y.S.2d 462;   Matter of Powell v. Franco, 257 A.D.2d 509, 684 N.Y.S.2d 226;  Matter of Spand v. Franco, 242 A.D.2d 210, 663 N.Y.S.2d 813;  Matter of Turner v. Franco, 237 A.D.2d 225, 655 N.Y.S.2d 935) does not warrant the judicial expansion of RPAPL 753(4).

In my view, the facts of this case are clearly distinguishable from those in New York City Hous. Auth. v. Williams, 179 Misc.2d 822, 687 N.Y.S.2d 539.   In Williams, there existed a question as to whether or not the tenant had received notice of the Escalera hearing.   Ms. Williams never appeared for the proceedings.   Moreover, the acts of non-desirability had occurred nearly eight years prior to the commencement of the holdover proceeding against Ms. Williams, by which time whatever incidents of undesirability that had occurred were long since cured.   When the hearing was held, Ms. Williams lived alone in the apartment, and this was her sole residence.

In the present case, following the acts of non-desirability committed by the tenant's son, an administrative hearing was held in accordance with the Authority's Termination of Tenancy Procedures.   The tenant appeared at the hearing and indicated that she could not make a decision to exclude her son from the household as a condition of a lesser sanction.   There was also evidence that the tenant had another residence where she resided with her daughter, while her son and his girlfriend lived in the apartment which was the subject of the proceeding.   Based upon the above, the hearing officer made a finding for termination.   The tenant in this case had a full and fair opportunity to litigate the issues.

Accordingly, I concur with the majority and vote to affirm.

MEMORANDUM:

ARONIN, J.P. and GOLIA, J., concur. PATTERSON, J., concurs in a separate memorandum.