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Supreme Court, New York County, New York.

Veronica McLAUGHLIN, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. Tino HERNANDEZ, as Chairman of the New York City Housing Authority;  the New York Housing Authority, Respondents.

Decided: August 11, 2004

Brooklyn Legal Services Corp. B (John C. Gray and Jennifer Levy of counsel), for petitioner. Ricardo E. Morales, New York City (Nancy M. Harnett and Byron S. Menegakis of counsel), for respondents.

Motion sequence nos. 002 and 003 are consolidated for disposition.

Respondents move (seq. no. 002) to reargue their opposition to the petition, which petition was granted by decision and order dated March 17, 2004, CPLR 2221.   Petitioner moves (seq. no. 003) to compel respondents to comply with the March 17th order, CPLR 5104.1  The facts are fully set forth in the March 17th order, with which familiarity is assumed.

Factual and Procedural Summary:

The petition sought a declaration that the policy of the New York City Housing Authority (“NYCHA”) of refusing to permit remaining family members to appear at termination of tenancy proceedings violates 24 CFR § 966.53;  finding that NYCHA's failure to reopen the administrative default in this matter was a violation of petitioner's due process rights under the federal and state constitutions;  and finding that NYCHA's failure to reopen the administrative default was arbitrary and capricious.

Petitioner Veronica McLaughlin resided at Apartment 12-B, 80 Dwight Street, Brooklyn, a NYCHA building, with her mother, Valerie Robinson, her two sons, sister and nephew, until their eviction.   She had lived in the apartment for 14 years, since the inception of the tenancy, and has always been listed on the appropriate forms as a resident of the apartment.   The lessee of the apartment (the person in whose name the lease was made) was petitioner's mother, Valerie Robinson.   Petitioner alleged that Robinson abandoned the apartment without formally notifying the NYCHA Housing Manager.

Robinson failed to submit annual recertification forms to NYCHA for several years.   She allegedly provided an income affidavit and some supporting income information to the Housing Manager on July 16, 2002.

NYCHA commenced a “termination of tenancy” proceeding against Robinson, by notice dated January 3, 2003.   The notice stated that Robinson's tenancy was being terminated for non-verifiable income and breach of agency rules, in connection with her failure to provide sufficient income information in 2002.

Petitioner maintained that Robinson failed to respond to the Notice of Termination, because she had abandoned the apartment, and, thus, had presumably not received the notice.   A hearing was held at NYCHA, and the Hearing Officer terminated the tenancy, on default, by Decision & Disposition dated January 22, 2003.   The order was entered on February 12, 2003.   Petitioner contended that she was not aware of the termination until she found a petition in a Housing Court holdover proceeding directed to her mother, relating to a holdover proceeding that NYCHA had commenced against Robinson.   McLaughlin was ultimately told that she could not apply to reopen the default, because she was not the head of household and the proceedings were not in her name.

On August 1, 2003, petitioner was evicted.   Execution of the warrant of eviction was stayed by the Housing Court through August 20, 2003.

On August 7, 2003, petitioner attempted to file a “remaining family member” grievance with NYCHA.   She was allegedly told that, because the tenancy had been terminated, she could not file the family member grievance.   She then wrote to the chairman of NYCHA.   She received a written response, dated August 25, 2003, stating that she could not request a remaining family member grievance, because her mother's tenancy had already been terminated.   The execution of the warrant of eviction was stayed until November 28, 2003, to allow petitioner to file this Article 78 proceeding.

NYCHA has offered the apartment to another family on its waiting list, but has been enjoined from re-letting the apartment pending determination of this motion.

The March 17th order recognized that, in reality, petitioner is the remaining head of household of the tenant family, since her mother, Robinson, abandoned the apartment.   While NYCHA contended that petitioner has failed to prove this, petitioner's sworn statement is evidence of that departure, and NYCHA did not submit any proof or even indication of Robinson's continued residence.   The order held that petitioner and her family could not lose their rights to occupy the apartment without, at least, an opportunity to be heard.   Petitioner was held to be entitled to notice of a termination proceeding that would affect her and her family before it occurred.

The March 17th order stated that:

By terminating Robinson's tenancy, without giving notice to petitioner, NYCHA violated the federal mandate.   Therefore, NYCHA's determination to terminate the tenancy without providing prior notice to petitioner, and refusal to permit petitioner to reopen that determination, is arbitrary and capricious, and in violation of governing law.

(March 17th Order at 11.)

The decretal paragraphs of the March 17th order read as follows:

ORDERED AND ADJUDGED that the petition is granted and the matter is remanded to the New York City Housing Authority to reopen the administrative default in the termination of tenancy proceedings and allow petitioner to present her claim to remaining head of household status;  and it is further

ORDERED that the injunction restraining the Respondent Housing Authority from re-letting the subject apartment continues until 15 days after petitioner is served with a copy of the new administrative determination by the Housing Authority.

(March 17th Order at 12.)

Respondents have filed a notice of appeal from the foregoing order and have yet to comply with its terms, prompting petitioner to make the instant motion to compel compliance.   Among other arguments, respondents argue that the March 17th order is stayed pursuant to CPLR 5519(a)(1), which provides as follows:

§ 5519.   Stay of enforcement

(a) Stay without court order.   Service upon the adverse party of a notice of appeal ․ stays all proceedings to enforce the judgment or order appealed from pending the appeal ․ where:

1. the appellant ․ is the state or any political subdivision of the state or any officer or agency of the state or of any political subdivision of the state․


The first issue is whether the New York City Housing Authority comes within the statutory definition of an “agency of the state or of any political subdivision of the state․” (CPLR 5519[a][1].)

 NYCHA was created as a public housing authority by act of the State Legislature to address the widespread and growing need for adequate low-income housing in New York City (see, Public Housing Law §§ 2, 400 et seq.).   The term “authority” is defined as “a public corporation which is a corporate governmental agency․” (Id., § 3[2].)   NYCHA performs uniquely governmental functions, such as maintaining a police force to promote the safety of residents of NYCHA housing (id., § 402[5] ).

 In view of the foregoing, and of the purpose of the automatic stay of CPLR 5519(a), which is “to stabilize the effect of adverse determinations on governmental entities and prevent the disbursement of public funds pending an appeal” (Summerville v. City of New York, 97 N.Y.2d 427, 434, 740 N.Y.S.2d 683, 767 N.E.2d 140 [2002] ), the New York City Housing Authority is a governmental entity coming within the purview of the automatic appellate stay (accord, Russell v. New York City Hous. Auth., 160 Misc.2d 237, 608 N.Y.S.2d 592 [Sup. Ct., Bronx County 1992].   See also, Price v. New York City Hous. Auth., 92 N.Y.2d 553, 684 N.Y.S.2d 143, 706 N.E.2d 1167 [1998] [referring to NYCHA as a “public entity”];  McPherson v. New York City Hous. Auth., 228 A.D.2d 654, 646 N.Y.S.2d 16 [2d Dept. 1996] [referring to NYCHA as “a governmental defendant”] ).2

 The second issue is whether the automatic stay applies specifically with respect to the March 17th order, which (i) ordered NYCHA to reopen the administrative default in the termination of tenancy proceedings, and allow McLaughlin to present her claim to remaining head of household status;  and (ii) restrained NYCHA from re-letting McLaughlin's apartment (March 17th Order at 12).

As indicated above, although petitioner's motion is purportedly cast as an Article 63 motion for a preliminary injunction;  it decidedly is not, given the post-judgment nature of the motion (see, supra, note 1).   Rather, the motion is, in every sense, an Article 51 motion to enforce the March 17th order (see, id.).   As such, the court is constrained to agree with respondent that the automatic stay literally applies here, as it explicitly operates to stay “all proceedings to enforce the ․ order appealed from․” (CPLR 5519[a].) 3

 This court is not empowered to lift the automatic stay;  however, petitioner may apply to the Appellate Division, for such relief (CPLR 5519[c] ).  Her current predicament of being expelled from her residence of 14 years, together with her children, and the imminent and irretrievable risk of NYCHA's re-letting of the apartment, may constitute the type of “undue hardship against the litigant,” justifying appellate vacatur of the stay (Clark v. Cuomo, 105 A.D.2d 451, 452, 480 N.Y.S.2d 716 [3d Dept. 1984] ).4

Accordingly, it is

ORDERED that the motions (numbered 002 and 003) are denied, without prejudice to renew upon the expiration of the automatic stay (CPLR 5519[a][1] ) in the event of affirmance of the court's decision and order, dated March 17, 2004, on appeal.


1.   Plaintiff's counsel erroneously casts the motion as one for a preliminary injunction, citing CPLR 6301 (Notice of Motion at 1;  Levy Aff. ¶ 16).   This motion, in reality, seeks to enforce the March 17th order (CPLR 5104), which finally disposed of this proceeding, in petitioner's favor.

2.   Cf., Ronan v. Levitt, 73 Misc.2d 35, 341 N.Y.S.2d 176 [Sup. Ct., Albany County] [holding that the stay applies to a public authority;  but not to its officers], affd. 42 A.D.2d 10, 344 N.Y.S.2d 624 [3d Dept.], lv. denied 33 N.Y.2d 514, 347 N.Y.S.2d 1027, 301 N.E.2d 557 [1973].

3.   This disposition does not require the court to opine on what has been described as a split between the First Department and other departments of the Appellate Division, as to whether the automatic stay relates exclusively to enforcement proceedings (Pokoik v. Department of Health Servs., 220 A.D.2d 13, 641 N.Y.S.2d 881 [2d Dept. 1996];  Walker v. Delaware & Hudson R.R. Co., Inc., 120 A.D.2d 919, 503 N.Y.S.2d 173 [3d Dept. 1986];  Rotondo v. Reeves, 192 A.D.2d 1086, 596 N.Y.S.2d 272 [4th Dept. 1993] ), or whether it relates broadly to all proceedings pending appeal (Eastern Paralyzed Veterans Assn., Inc. v. Metropolitan Tr. Auth., 79 A.D.2d 516, 433 N.Y.S.2d 460 [1st Dept. 1980].   See generally, Silver v. Pataki, Sup. Ct., N.Y. County, Lehner, J., N.Y.L.J., Mar. 23, 1999, at 28, col. 4;  Siegel, N.Y. Prac. § 535, at 884 3d ed. [1999] ).

4.   Petitioner attests that her current living conditions have caused one of her children to suffer from critical complications resulting from asthma (McLaughlin Aff. ¶ 3).


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