Christopher McCollum, Plaintiff(s), The City of New York, BILL DeBLASIO, in his official capacity as the Mayor of the City of New York, MAYOR'S OFFICE OF HOUSING RECOVERY OPERATIONS a/k/a Build It Back, Defendant.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Notice of Petition with Accompanying Affidavits and Exhibits 1
Respondent's Verified Answer with Accompanying Affidavits and Exhibits 2
Respondent's Memorandum of Law in Opposition to Petition with Accompanying Affidavits and Exhibits 3
Petitioner's Affidavit in Reply 4
Petitioner Christopher McCollum (‘petitioner‘ or ‘McCollum‘) seeks an order vacating the March 1, 2016 determination of the New York City Mayor's Office of Housing Recovery Operations (‘HRO‘ or ‘respondent‘), which denied petitioner benefits under the Build it Back Program (‘Build it Back‘). Petitioner claims that he is eligible for benefits under Build it Back because his home was damaged by Hurricane Sandy (‘Sandy’).
The United States Department of Housing and Urban Development (‘HUD‘) allotted Community Development Block Grant Disaster Recovery (‘CDBG-DR‘) funds to New York City for Sandy recovery activities. The City implemented a disaster recovery program known as ‘Build It Back‘ that uses CDBG-DR funds to aid in the recovery of residential property damaged or destroyed by Sandy, and established HRO to administer the program. NYC Administrative Code 28-112.11; Brooklyn Ctr. for Independence of the Disabled v. Bloomberg, 980 F. Supp. 2d 588, 629 (S.D.NY 2013). Build It Back is administered in accordance with the Disaster Relief Appropriations Act of 2013 (Public Law 113-2, 127 Stat. 4 (‘Sandy Act‘) passed by Congress. The City's receipt of CDGB-DR funds creates an expectation that the funds will be used in accordance with federal mandates. Sapp v City of New York, 2013 NY Slip Op 32325(U), 2013 NY Misc. LEXIS 4365, *5 (Sup. Ct. NY Co. 2013).
The Sandy Act provides that in order to receive CDBG-DR funds, the grantee must submit an ‘action plan‘ to the HUD Secretary detailing how it will use the funds to ‘address long-term recovery, restoration of infrastructure and housing, and economic revitalization in the most impacted and distressed areas.‘ DISASTER RELIEF APPROPRIATIONS ACT, 2013; SANDY RECOVERY IMPROVEMENT ACT OF 2013, 113 P.L. 2, 127 Stat. 4, 15. In May 2013, HUD approved the City's CDBG-DR Action Plan (‘Action Plan‘), which has since been amended. http://www.nyc.gov/html/cdbg/downloads/pdf/apa11_technical_amendment_summary.pdf. Pursuant to the Action Plan, the City is required to draft policy and procedure manuals to ensure compliance with programmatic and financial requirements of CDBG-DR. Action Plan, p. 231. In accordance with this directive, the City established criteria for eligibility in the NYC Build It Back Policy Manual 1-4 Properties, Version 1.6 (‘Manual‘). It provides that ‘[t]his Manual constitutes the primary governance for the implementation of the one to four unit Repair, Reconstruction, Reimbursement and Relocation Programs.‘ Manual, at 3-7.
On November 25, 2013, petitioner applied for Build it Back benefits, claiming Sandy-related damages to his home, including multiple broken and cracked windows, and damage to the rear yard, chimney, facade, and roof tiles. In March 2014, an inspector from Build it Back visited petitioner's home to conduct a damage assessment and found ‘no apparent storm related damages from Hurricane Sandy.‘ In October 2014, petitioner's claim was denied based on the assessor's findings.
Petitioner submitted a Request for Review (‘RFR‘) challenging this determination with an unsworn report of Paul J. Besmertnik, a home inspection engineer (the ‘Engineer's Report‘), which did not bear any signature, certification, or professional seal. Based on a visual inspection of the property and what petitioner told him, Besmertnik estimated that it would cost almost $75,000 to make repairs to the Sandy-related damages to the glass panes, storm windows, chimney, and siding shingles. However, Besmertnik did not offer any explanation as to why he formed the opinion that the damages resulted from Sandy. HRO again denied petitioner's eligibility because the documentation he submitted did not demonstrate that the damage was caused by Sandy, and it suggested examples of acceptable documentation, such as correspondence showing Sandy-related assistance from FEMA, or an insurance payment for a Sandy related structural loss. Petitioner appealed without offering further documentation supporting his claim, and HRO again denied petitioner's eligibility.
Petitioner claims that respondent's determination was arbitrary and capricious because it disregarded the Engineer's Report. Respondent contends that petitioner failed to meet the criteria for eligibility as set forth in the Manual.
In reviewing respondent's determination, the Court must ascertain whether it was ‘arbitrary and capricious,‘ and made ‘without sound basis in reason or regard to the facts.‘ Mtr. of Murphy v. New York State Div. of Hous. & Community Renewal, 21 NY3d 649, 654-655 (2013); Mtr. of King-Rubie v Wambua, 141 AD3d 589, 589-590 (2nd Dept. 2016); Mtr. of Morton v. New York City Dept. of Hous. Preserv. & Dev., 93 AD3d 727 (2nd Dept. 2012). An agency's determination is deemed arbitrary and capricious if it has evaluated the facts using a standard that deviates from that which is expressly set forth in the statutes and regulations, or violates its own guidelines and policies. See, Mtr. of ACME Bus Corp. v Orange County, 28 NY3d 913 (2016) (Award of city contract under General Municipal Law § 104-b is arbitrary and capricious if municipality evaluates a proposal using a standard which deviates from a standard expressly set forth in the Request for Proposal); Mtr. of Kallini v New York Inst. of Tech., 2012 NY Slip Op 50045(U), 34 Misc 3d 1211(A), 1211A (Sup. Ct. Nass. Co. 2012 (Decision of school to suspend student for two years deemed arbitrary and capricious because it deviated from its own academic integrity policy).
Pursuant to section 3.5.7 of the Policy Manual, all applicants for assistance from Build it Back must verify that the residential unit sustained physical damage from Sandy. Damage is defined as ‘rain, wind and/or flood damage received as a direct result of the storm, which occurred on October 29, 2012 plus any subsequent damage related to the original storm damage.‘ Damage may be established in one of the following three ways: 1) the applicant's structure was tagged with a Department of Buildings (‘DOB‘) placard, as having suffered Sandy damage; 2) proof that the applicant received payment for structural loss from FEMA, NFIP or private insurance; or 3) a damage assessor from Build it Back confirmed that the structure was damaged by Sandy based upon visual observation.
It is undisputed that petitioner's house was not tagged with any placard from DOB as having suffered Sandy damage, and that petitioner did not receive payment for structural loss from FEMA, NFIP, or private insurance.1 Thus, petitioner could only verify Sandy damages with a report from a damage assessor from Build it Back, confirming, based upon visual observation, that petitioner's house was damaged by Sandy. However, petitioner fails in this regard because the assessor concluded in a detailed, photograph-supported damage assessment report (‘Assessment Report‘) dated March 15, 2014, that there were ‘[n]o apparent storm related damages from Hurricane Sandy.‘
Petitioner fails to disprove the damage assessor's findings. The Engineer's Report merely offers the conclusory opinion of Besmertnik that damages to the glass panes, storm windows, chimney and siding shingles were Sandy-related, without articulating a methodological or factual basis for this conclusion. In particular, the Engineer's Report does not explain the scientific methodology he used in concluding that the damages resulted from Sandy rather than from deferred maintenance, wear and tear and deterioration. See, Steven J. Inc. ex rel. Fenton v. Landmark Am. Ins. Co., 2015 U.S. Dist. LEXIS 80278, *15 (M.D. Pa. 2015) (opinion testimony regarding Sandy-related damages precluded because it was not reliable, as it relied solely on the plaintiff's own claims of harm without scientific or technical information in order to test the plaintiff's claims). Thus, this Court finds that petitioner did not come forward with substantial affirmative evidence to disprove the Assessment Report.
In sum, petitioner has not shown that respondents in any way deviated from the standards set forth in the Manual when it considered petitioner's application for Build it Back benefits.Accordingly, this Court finds that respondent's determination was not ‘arbitrary and capricious‘ and was reasonably based on the facts. Therefore, the petition is denied. This constitutes the Decision and Order of the Court.
DATED: June 26, 2018
KATHERINE A. LEVINE
Justice Supreme Court
1. Petitioner certified in his application that he did not receive aid from FEMA, NFIP, insurance, or any other assistance, and that he did not even apply for such assistance.
Katherine A. Levine, J.