Legal Aid Says Decision by Justice Moulton Will Benefit Many NYCHA Resident
THURSDAY, APRIL 09, 2015

Manhattan Supreme Court Justice Peter Moulton granted a NYCHA resident's pro se Article 78 petition, allowing the woman to stay in her late grandmother's New York City apartment.

Lucy Newman, a Staff Attorney in the Civil Law Reform Unit, told the New York Law Journal that "You can tell NYCHA is not doing what it's supposed to do" to lower the use and occupancy rate to reflect a smaller income. Ms. Newman, who was not involved in the case, said Justice Moulton's decision is significant because it "gives many residents the opportunity to get to the merits of the case and prove why they're entitled to the lease."




New York Law Journal
Court Reinstates Woman's Housing Authority Grievance
By Andrew Keshner
April 9, 2015

A judge has annulled a housing agency's refusal to allow a woman to stay in her late grandmother's New York City apartment, saying the agency's underlying requirements failed to comply with due process protections.

Manhattan Supreme Court Justice Peter Moulton granted Arielle Figueroa's Article 78 petition, voiding the New York City Housing Authority's (NYCHA) dismissal of her remaining family member grievance because the agency found she was not current on use and occupancy payments, which is essentially rent for non-lessees.

According to the agency's management manual, for someone to claim they are a remaining family member, they must continue to pay the use and occupancy at the same amount that was paid by the tenant of record. Alternative arrangements for lower income can be made.

Still, in Matter of Figueroa v. New York City Housing Authority, 101525/13, Moulton said the agency's "use and occupancy rule, which is applied without regard to the specific context presented by a case, is a bright-line rule that violated the petitioner's due process rights, and was arbitrary and capricious."

He remitted the case to the agency in his April 1 ruling.

Appearing pro se, Figueroa said she lived in her grandmother's East Harlem apartment for nine years and her child has never lived elsewhere. Figueroa filed a remaining family member grievance seeking succession rights for the unit in the Senator Robert A. Taft Houses.

As she sought to make her case, she made an initial request to the agency's management office, per NYCHA procedures, for what is called an "informal settlement."

Under those procedures, if the disposition of the management office does not satisfy the tenant, the matter can be reviewed by the Borough Management Office, whose determination can then be reviewed by a hearing officer.

Here, the hearing officer noted that, at the time of the hearing, almost $3,000 was owed in use and occupancy. The sum represented nine months of rent.

Figueroa said she fell behind in the payments due to unemployment but had recently returned to work and offered to pay just over $900 for the arrears.

The hearing officer, Ester Tomicic-Hines, dismissed the grievance because Figueroa was not current on the use and occupancy. NYCHA then approved the determination.

Figueroa filed her Article 78 petition in November 2013.

In his decision, Moulton looked to a 1990 state Court of Appeals ruling, Matter of Henderson v. Popolozio, 76 NY2d 972. The case pertained to succession rights in a housing authority apartment and discussed the existence and nature of a property interest that a remaining family member had in public housing under federal law.

Applying Henderson, Moulton said Figueroa "was entitled to due process" under the circumstances. He noted that Figueroa did not press her case through the agency's hearing procedure, which NYCHA described in its website as having the "basic procedural safeguards of due process."

"Access to justice, whether in court or in an administrative tribunal, cannot be conditioned on the payment of an unaffordable sum," Moulton wrote.

"To require such payment as a precondition is antithetical to our justice system and is arbitrary and capricious, even if meant to benefit a financially strapped agency," he later added.

NYCHA's provision on current use and occupancy requirement has an alternate provision. Instead of paying the amount paid by the tenant of record, the manual says a claimant also can pay use and occupancy at a lower rate based on verified income.

Lucy Newman, a staff attorney in the Legal Aid Society's Law Reform Unit, who is not involved in Figueroa's case, said "You can tell NYCHA is not doing what it's supposed to do" to lower the use and occupancy rate to reflect a smaller income.

Moulton's decision was significant, she said, because it "gives many residents the opportunity to get to the merits of the case and prove why they're entitled to the lease."

NYCHA did not respond to a request for comment.

Kimberly Wong, a Housing Authority attorney, appeared for the agency.

Figueroa could not be reached for comment.