IN RE: the Application of Billie Jean DELGADO

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Supreme Court, New York County, New York.

IN RE: the Application of Billie Jean DELGADO, Petitioner, For a Judgment Pursuant to Article 78 and Declaratory Relief Pursuant to Section 3001 of the Civil Practice Law and Rules v. Vicki BEEN, as Commissioner of the New York City's Department of Housing Preservation and Development, and Clinton Towers Housing Co., Inc., Respondents.


Decided: March 21, 2018

For Petitioner: MFY Legal Services, Inc.—by John Bart, of counsel to Jeannete Zelhof, 299 Broadway, 4th Floor, New York, NY 10007 For HPD: Zachary W. Carter, Corp. Counsel—by Sheryl Neufeld, Michelle Goldberg–Cahn, & Teresita V. Magsino, 100 Church Street, room 5–175, New York, NY 10007 Gutman, Mintz, Baker, & Sonnenfeldt for Clinton Towers (has not appeared yet, and did not participate in argument), 813 Jericho Turnpike, New Hyde Park, NY 11040

Petitioner commenced this proceeding by order to show cause, seeking to stay the pending eviction proceeding and to obtain an order and judgment that the New York City Department of Housing Preservation and Development (HPD) committed an error of law when it allowed respondent Clinton Towers Housing Co., Inc. (Clinton Towers) to commence eviction proceedings without the necessity of the requisite hearing before HPD, and remanding the matter back to HPD for a proper review. The parties consented to a stay of the Housing Court proceeding, so the Court does not address the application for a temporary restraining order and preliminary injunction. Accordingly, it turns to the underlying petition. HPD brings a pre-answer cross-motion to dismiss on the grounds of mootness and failure to state a cause of action. For the reasons below, the Court denies the cross-motion and directs respondents HPD and Clinton Towers to serve and file their answers.

Since 2007, petitioner, who has mental and physical health problems, has resided in Mitchell Lama housing (see Private Housing Finance Law (PHFL §§ 10 et seq) at Clinton Towers in Manhattan. As such, HPD has primary jurisdiction over matters relating to her residence (see Wong v. Gouverneur Gardens Housing Corp., 308 A.D.2d 301, 303–04, 764 N.Y.S.2d 53 [1st Dept. 2003] ). Before a landlord can terminate a Mitchell Lama tenancy in Housing Court, HPD must conduct a termination hearing and issue a certificate of eviction (id. at 304, 764 N.Y.S.2d 53). The New York City Rules and Regulations mandate the issuance of a preliminary notice to the tenant setting forth the basis for the proposed eviction, and further require HPD to conduct an administrative hearing on the matter (28 RCNY 3–18; Wong, 308 A.D.2d at 304, 764 N.Y.S.2d 53). HPD only issues the certificate of eviction if it is satisfied that there are grounds for the landlord to proceed to Housing Court (id.). Moreover, if HPD issues the certificate, the tenant has a right to seek judicial review under Article 78 of the CPLR (id.).

These additional layers of review are in keeping with the purpose of Mitchell Lama, which is to provide “safe and sanitary dwelling or non-housekeeping accommodations” for families and individuals of low and lower-middle income, including individuals who are handicapped or are senior citizens (PHFL § 11; see PHFL § 11–a; Richman Plaza Garage Corp. v. New York State Division of Housing and Community Renewal, 112 A.D.3d 474, 474, 977 N.Y.S.2d 208 [1st Dept. 2013] ). Furthermore, as “the supervising governmental agency administering the Mitchell Lama program in New York City․, HPD is statutorily required to enforce [Mitchell Lama]” (Matter of Schorr v. New York City Dept. of Housing Preservation and Development, 10 N.Y.3d 776, 778, 857 N.Y.S.2d 1, 886 N.E.2d 762 [2008] ).

In the case at hand, Clinton Towers applied for a certificate of eviction from HPD, and thus it triggered the regulatory procedure this Court has described above. HPD scheduled a hearing on January 7, 2015. Upon petitioner's default HPD adjourned the matter to February 26, but petitioner defaulted again. HPD held the hearing without petitioner and HPD issued a certificate of eviction to Clinton Towers. Clinton Towers commenced an eviction proceeding in the Civil Court, Housing Part, shortly thereafter.

Adult Protective Services engaged Dr. Candice Hacker, a psychiatrist who consults on behalf of the Commissioner of Social Services, to evaluate petitioner. Dr. Hacker determined that petitioner suffered from several mental health conditions which rendered her unable to represent herself or defend her rights. As a result of Dr. Hacker's evaluation, the Housing Court judge appointed a guardian ad litem (GAL) to petitioner. The GAL retained legal counsel on petitioner's behalf, and the Housing Court judge granted an adjournment to allow petitioner's representatives to move to vacate her default in the hearing before HPD. As is pertinent here, petitioner argued that HPD should not have granted the certificate of eviction because her mental health problems had made it impossible for her to appear or otherwise properly represent her position. She further noted that Clinton Towers was aware of her mental health issues and physical disabilities because when it attempted to evict her in 2012, the Housing Court referred petitioner to adult protective services (APS), and a GAL was appointed to manage her financial affairs—and, despite this knowledge, it did not alert HPD to these issues at any point during the proceedings before it.

On August 11, 2016, HPD issued an order vacating the certificate of eviction because “the HPD hearing ․ would not have proceeded if the agency had been aware of respondent's disability and her previously judged inability to adequately defend or prosecute her rights” (Matter of Clinton Towers Housing Co., Inc. v. Delgado, Decis-H764, Levy, Administrative Hearing Officer [August 11, 2016] ). Nevertheless, HPD waived the required hearing because, it stated, “there is no mechanism for HPD Administrative Hearing Officers to appoint a GAL” (id.). In so doing, HPD relied on 28 RCNY 3–18 (e), which governs emergency evictions and states that a hearing “may be waived at the sole discretion of HPD in any case in which HPD determines that the health or safety of the tenant/cooperators of a development is jeopardized by another tenant/cooperator or his or her family, members of his or her household or visitors to his or her premises” (emphasis supplied).

Following the issuance of the HPD order, petitioner commenced this Article 78 proceeding. Petitioner asserts the following causes of action: 1) HPD's waiver of petitioner's hearing violates the American Disabilities Act (42 USCS §§ 12101 et seq), 2) HPD violated her procedural due process rights when it failed to appoint her a GAL and otherwise protect her property interest in the apartment, 3) HPD's decision to waive petitioner's hearing constituted an error of law (citing CPLR § 7803 [3] ), especially as HPD relied on a provision relating to emergency evictions but did not cite any existing emergency,1 and 5) HPD violated the Rehabilitation Act (29 USC 794 [a] ), which states that no individual shall be excluded from a public benefit program due to his or her disability.

HPD cross-moves to dismiss in lieu of an answer. It argues that HPD vacated the certificate of eviction, thus granting petitioner the relief she sought in her application. According to HPD, this renders the proceeding moot. Due to this mootness, HPD asserts, this court lacks subject matter jurisdiction. The Court finds that this argument misconstrues the allegations in the petition and in petitioner's underlying application, and that HPD's position is inconsistent with Article 78 itself. Petitioner did not ask HPD to vacate the certificate of eviction yet bypass the hearing requirement guaranteed to her under the Mitchell Lama Act. Instead, she sought a hearing before HPD and the concomitant right to challenge any adverse finding in an Article 78 proceeding. In the petition, petitioner challenges the determination because it did not provide her with this crucial aspect of the relief she requested. Thus, the issue is not moot.

In addition, HPD argues that, if this Court does not consider the matter moot, it must still dismiss the proceeding because HPD's decision to waive the hearing was rational. It notes the deferential standard of review courts must apply when evaluating HPD determinations (see Nelson v. Roberts, 304 A.D.2d 20, 23–24, 757 N.Y.S.2d 41 [1st Dept. 2003]; see also Matter of Rodriguez v. Hernandez, 51 A.D.3d 532, 532, 858 N.Y.S.2d 144 [1st Dept. 2008] [concerning Housing Authority] ). Citing 28 RCNY § 3–18 (e), it contends that the hearing officer acted reasonably in waiving the hearing requirement because she had sole discretion to determine its necessity. It argues that because petitioner required the assistance of a GAL and there was no procedure in place to appoint one, the hearing officer did not abuse its discretion. HPD claims it was legally impossible for petitioner to have the necessary representation at an HPD hearing, and therefore the hearing officer reached the only possible conclusion. HPD notes that at the Housing Court proceeding petitioner will have the assistance of a GAL, and it asserts that this will adequately protect her rights.

The Court rejects this argument for several reasons. First, among other things, the rule upon which HPD relied in its decision, 28 RCNY § 3–18 (e), refers to emergency situations only, and, as such, allows HPD to waive a hearing when the tenant in question endangers the health or safety of the other residents of the building. Here, HPD cited no such emergency, and thus did not set forth a rational basis for applying this rule. Second, as stated, the Mitchell Lama rules exist to protect lower- and middle-income tenants, and it is counterintuitive to think HPD should waive petitioner's right under Mitchell Lama because she needs additional assistance and protection. Third, although HPD may not be able to hold a hearing to appoint a GAL, there is no explanation as to why it did not explore other options—such as, for example, seeing whether petitioner's Housing Court GAL and attorney, who made the application before HPD, would represent her at the hearing; or adjourning the hearing while a petition to appoint a guardian for limited purposes was instituted in the Supreme Court—before summarily deciding that Clinton Towers could proceed straight to Housing Court. Fourth, although HPD asserts that petitioner's rights were adequately protected in Housing Court, petitioner correctly notes that if this were correct, the law would not include the hearing requirement and courts would not insist that HPD is “statutorily required to enforce” the prevailing rules (Schorr, 10 N.Y.3d at 778, 857 N.Y.S.2d 1, 886 N.E.2d 762). Petitioner also is correct that the hearing requirement adds a layer of protection to a Mitchell Lama tenant by having HPD, which has expertise in evaluating an application to terminate a Mitchell Lama tenancy, conduct the initial review. Fifth, HPD's statement that petitioner shall receive sufficient judicial protection does not discuss the fact that it waived not just petitioner's right to a hearing and the issuance or denial of a certificate of eviction but the right to challenge any adverse determination in an Article 78 proceeding. She has no similar recourse in Housing Court.

The Court has considered HPD's arguments in their entirety and they do not alter the conclusion that this proceeding should not be dismissed. Accordingly, it is

ORDERED that the cross-motion to dismiss is denied; and it is further

ORDERED that respondents shall have 35 days from the date of this order to serve and file their answers; and it is further

ORDERED that petitioner shall have 10 days of receipt of the answers to serve and file her reply; and it is further

ORDERED that the matter shall be argued in Part 34, 80 Centre Street, room 308 at 10:00 a.m. on Thursday, May 10, 2018.


1.   The fourth cause of action merely reiterates petitioner's ADA and due process claims in the context of CPLR § 7803 (3).

Carmen Victoria St. George, J.