IN RE: the Application of Bernadette BLOUNT, Petitioner, v. NEW YORK CITY HOUSING AUTHORITY and Gregory Russ, as Chair and Chief Executive Officer of the New York City Housing Authority (“NYCHA”), and McKinley Houses (Landlord), Respondents.
In this Article 78 proceeding, petitioner challenges the determination of respondent New York City Housing Authority (“NYCHA”) denying her application to remove the condition placed on her tenancy to permanently exclude Tyrone Frison from her NYCHA apartment. NYCHA opposes the petition.
Petitioner has resided in the subject apartment for about 29 years, and currently resides there with her three young grandchildren and adult daughter. She has had a romantic relationship with Mr. Frison for 20 years. On March 22, 2019, she filed a pro se Application to Lift Permanent Exclusion, requesting that NYCHA lift the permanent exclusion of Mr. Frison from her apartment. The application form offers two separate “paths” for requesting such relief. Path 1 is entitled “Evidence of Positive Change” and Path 2 is entitled “Passage of Time.” Petitioner selected Path 1 and provided the following explanation as to “how you think the excluded person has changed and why he or she no longer poses a danger to the community”:
Mr. Frison has truly done a change in his life. Mr. Frison in almost 3 yrs. has been on a road to recovery for himself. Mr. Frison had maintained a job after attending Culinary School, graduated and is now employed at Project renewal. He has maintained his position in the community as a poll worker. Mr. Frison is still active in N.A. as Secretary of his group.
As “Evidence of Positive Change,” petitioner submitted letters of recommendation and other documents, and stated as follows:
In this application he has recommendations from various groups/his program/employment proof, Epra, Bx Drug Task etc. His conviction was reduced from a felony to a misdemeanor due to completing the program w/no dirty urine. No police contact in 3 yrs.
On or about March 26, 2019, NYCHA's Law Department submitted its objections to petitioner's application, detailing Mr. Frison's criminal record and the history of petitioner's tenancy, which included three prior termination proceedings settled pursuant to stipulations imposing the condition of permanent exclusion of Tyrone Frison (stipulations dated June 17, 2009, September 28, 2011 and August 18, 2015). NYCHA also referenced a currently ongoing termination proceeding against Ms. Blount, where the hearing was in progress and had been adjourned to March 28, 2019; that separate proceeding is based on charges alleging violation of the permanent exclusion of Mr. Frison, non-desirability, violation of probation and breach of the rules and regulations.
Petitioner thereafter retained an attorney who submitted a Notice of Appearance & Affirmation in Reply (“Reply” or “Reply papers”) dated May 7, 2019, responding to NYCHA's opposition. The Reply presented several legal arguments in support of the application, and included affidavits from Ms. Blount and Mr. Frison, as well as the supporting documents previously submitted with the original application. Counsel argued that petitioner had documented evidence of a positive change from Mr. Frison, and NYCHA's opposition failed to follow NYCHA's recently released “Guidelines on Handling of Termination Cases, Exclusion of Violent or Dangerous Individuals and the Lifting of Exclusion.” The additional arguments in the Reply related to the issue of whether petitioner's tenancy should be terminated, which is the subject of the separate and ongoing termination proceeding against Ms. Blount.1
On June 19, 2019, NYCHA Hearing Officer Arlene Ambert issued a decision denying petitioner's Application to Lift Permanent Exclusion, without holding a hearing. The decision, in its entirety, states as follows:
Bernadette Blount (“Tenant”) by papers dated March 22, 2019, requests removal of the condition placed upon her continued occupancy to her Housing Authority apartment; specifically the Permanent Exclusion of Tyrone Frison.
The Tenant represents in her papers that Tyrone Frison has not had any arrests during the last three (3) years, has maintained employment following his successful completion of the requirements of culinary school, has maintained his sobriety and is active in groups supporting his sobriety and rehabilitation. Multiple letters and certificates were attached to the Tenant's papers.
The Tenant notes that Tyrone Frison's conviction was reduced from a felony to a misdemeanor due to his successful completion of what appears to be a drug rehabilitation program.
According to the Tenant, Tyrone Frison is a changed man.
The Housing Authority has responded by papers dated March 26, 2019, that the evidence presented by the Tenant may be sufficient to demonstrate rehabilitation for a drug user. However, in a thirty-five (35) year span, Tyrone Frison has had almost one hundred (100) arrests, some of which have formed the basis for convictions regarding the sale of illegal drugs. The subject apartments was a location used by Tyrone Frison for the sale of illegal drugs, which formed the basis for the issuance and execution of a search warrant.
According to the provisions of PATH 1: Evidence of Positive Change as the basis for the Application to Lift Permanent Exclusion, the Tenant is required to provide evidence of positive change. In this case the evidence provided does not address Tyrone Frison's convictions involving the sale of illegal drugs.
In light of Tyrone Frison's extensive conviction record, the evidence presented by the Tenant is premature and insufficient to conclude that Tyrone Frison does not pose a danger to the health and safety of the NYCHA community.
DISPOSITION: The application to remove the Condition of Permanent Exclusion is denied.
On September 25, 2019, petitioner commenced this proceeding by filing an Order to Show Cause and a Verified Petition, which included a request to stay the NYCHA termination proceeding identified as NYCHA-McKinley managed by Forest Houses, Case No. 2961/18 (902557-AN-2018). This Court signed the Order to Show Cause and stayed the termination proceeding.
The petition asserts that NYCHA's denial of her application to remove the condition of permanent exclusion against Mr. Frison was arbitrary and capricious, without foundation in fact or law and constituted an abuse of discretion based on NYCHA's failure to fully acknowledge the documentary evidence supporting Mr. Frison's rehabilitation and petitioner's mitigating circumstances, and NYCHA's failure to follow its own polices for determining when to lift a permanent exclusion. The petition further asserts that the NYCHA Hearing Officer did not comport with the requirements of due process when she denied petitioner's request for hearing on her application, and when she failed to give full and fair consideration to petitioner's Reply papers, the argument in the Reply that NYCHA did not follow its own policies, the facts presented in affidavits submitted with the Reply, and the six completed NYCHA Recommender Contact Forms.
NYCHA filed a Verified Answer opposing the petition. The answer asserts three affirmative defenses: 1) NYCHA's denial of petitioner's application to lift the permanent exclusion condition on her tenancy is rational, not arbitrary and capricious, and in full accord with the law and NYCHA's policies; 2) NYCHA complied with its due process obligations: and 3) the petition fails to state a cause of action.
The Court's review of agency action in an Article 78 proceeding is limited to whether the agency failed to perform a legal duty, or whether the agency's determination was made “in violation of lawful procedure, was affected by error of law or was arbitrary and capricious or an abuse of discretion.” Figueroa v. New York City Housing Authority, 141 A.D.3d 468, 469, 35 N.Y.S.3d 338 (1st Dept. 2016) [quoting CPLR 7801(1), (3)]. An agency's determination is arbitrary and capricious if it is “taken without sound basis in reason or regard to the facts.” Peckham v. Calogero, 12 N.Y.3d 424, 431, 883 N.Y.S.2d 751, 911 N.E.2d 813 (2009). Judicial review is limited to grounds invoked by the agency and if the agency's determination is rationally supported, the Court must sustain the determination “even if the court concludes that it would have reached a different result than the agency.” Id.The Court “may not weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative fact finder.” Porter v. New York City Housing Authority, 42 A.D.3d 314, 837 N.Y.S.2d 875 (1st Dept. 2007).
The petition is granted to the extent of remanding the matter for NYCHA to hold a hearing on petitioner's application, and to address the arguments raised in petitioner's Reply papers. It is undisputed that the Hearing Officer denied petitioner's request for hearing on her application to lift the permanent exclusion. NYCHA asserts that its Termination Procedures, which govern requests to remove a permanent exclusion condition, authorize the Hearing Officer to evaluation such a request on written submissions only. NYCHA acknowledges, however, that under its Guidelines, the Hearing Officer has the discretion to request an in-person hearing. The Court finds that under the circumstances presented in this proceeding, the Hearing Officer abused its discretion in denying petitioner's request for hearing.
Moreover, the Hearing Officer's decision failed to address the issues raised in petitioner's Reply papers. As noted above, petitioner was pro se when she initially filed her application, but subsequently retained counsel who submitted a Reply to NYCHA's opposition which included a affirmation with legal arguments, affidavits from Ms. Blount and Mr. Frison, as well as the documents previously submitted with the original application. Although the record before this Court includes an email from the Hearing Officer to petitioner's counsel dated July 10, 2019, stating that the Reply was “included in the file and was considered in my decision,” the decision did not address the legal arguments or issues raised in the Reply. By way of explanation, the Hearing Officer stated: “Please note that the only issue before me was whether or not the application to lift the condition of permanent exclusion should be lifted. Hence, any arguments presented in the reply regarding terminating the tenancy were disregarded.”
Even assuming without deciding that the Hearing Officer properly disregarded any arguments in the Reply objecting to the termination of Ms. Blount's tenancy, the Reply included other arguments specifically supporting petitioner's application to remove the condition of the permanent exclusion of Mr. Frison, as well as affidavits from Ms. Blount and Mr. Frison, which the Hearing Officer improperly failed to address in her decision. The absence of a complete analysis of the issues and facts raised before the agency, precludes adequate review by the Court in this Article 78 proceeding. See Washington v. Olatoye, 173 A.D.3d 467, 103 N.Y.S.3d 388 (1st Dept. 2019); Porter v. New York City Housing Authority, 169 A.D.3d 455, 95 N.Y.S.3d 2 (1st Dept.), lv app dism 34 N.Y.3d 1010, 115 N.Y.S.3d 206, 138 N.E.3d 1089 (2019); A.F.C. Enterprises, Inc v. New York City Transit Authority, 79 A.D.3d 514, 913 N.Y.S.2d 75 (1st Dept. 2010). Thus, on remand, NYCHA shall reconsider petitioner's application, and issue a decision that considers and addresses petitioner's Reply papers.
Accordingly, it is
ORDERED AND ADJUDGED that the petition is granted to the extent of annulling the Hearing Officer's June 19, 2019 decision and remanding the matter for NYCHA to conduct a hearing on petitioner's application, and for reconsideration and determination of petitioner's application a manner consistent with the decision herein.
1. The Reply asserted that the termination of Ms. Blount's tenancy would constitute a disproportionate penalty; and in the event NYCHA denied petitioner's application to remove the exclusion of Mr. Frison, the last Stipulation dated August 18, 2015, in which Ms. Blount agreed to exclude Mr. Frison, should be extended so she can maintain housing for herself and her family.
Joan A. Madden, J.