To be Argued by:

EMILY JANE GOODMAN

New York County Clerk’s Index No. 402268/12

New York Supreme Court

Appellate Division—First Department

In the Matter of the Application of

CLARA JOSEFINA RUSSO,

Petitioner-Respondent,

For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

– against –

NEW YORK CITY HOUSING AUTHORITY,

Respondent-Appellant.

BRIEF FOR PETITIONER-RESPONDENT

EMILY JANE GOODMAN, ESQ.

45 Broadway, Suite 1700

New York, New York 10006

(212) 257-6112

ejg@emilyjanegoodmanlaw.com

PARIS R. BALDACCI, ESQ.

CLINICAL PROFESSOR OF LAW

DIRECTOR, HOUSING RIGHTS CLINIC

CARDOZO SCHOOL OF LAW

55 Fifth Avenue, 11th Floor

New York, New York 10003

(212) 290-0200

baldacci@yu.edu

Attorneys for Petitioner-Respondent

PRINTED ON RECYCLED PAPER

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................... ii

PRELIMINARY STATEMENT ............................................................................... 1

SUMMARY OF ARGUMENTS ............................................................................... 7

ARGUMENT ........................................................................................................... 10

POINT I

THE ADMINISTRATIVE HEARING DID NOT COMPORT WITH MINIMUM STANDARDS OF DUE PROCESS .............................. 10

POINT II

THE FAILURE OF THE GUARDIAN AD LITEM TO PROVIDE EFFECTIVE ASSISTANCE IS A DUE PROCESS VIOLATION.............. 24

POINT III

THE GUARDIAN AD LITEM’S INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN APPARENT TO THE HEARING OFFICER; IT WAS AN ERROR OF LAW TO CONCLUDE THE HEARING AND RENDER A DETERMINATION .................................... 26

POINT IV

THE ADMINISTRATIVE HEARING AND DETERMINATION ARE ARBITRARY, CAPRICIOUS, UNREASONABLE ........................... 28

POINT V

SANCTIONS SHOULD BE IMPOSED FOR RECKLESS AND UNPROFESSIONAL ACCUSATIONS AGAINST A SUPREME COURT JUSTICE ......................................................................................... 42

THE STATEMENTS..................................................................................... 43

CONCLUSION ........................................................................................................ 45

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TABLE OF AUTHORITIES Page(s)

Cases:

Abdil v Martinez, 307 A.D.2d 238 (1st Dep’t 2003) .................................................................. 29

Adler v. NYCHA, 927 N.Y.S.2d 814 (Sup. Ct., NY County 2011), aff’d, 95 A.D.3d 694 (1st Dep’t 2012) .................................................................... 32

Blatch v. Hernandez, 360 F. Supp. 2d 595 (S.D.N.Y. 2005) ......................................... 24, 26, 36, 37

Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968) ......................................................................... 25

Detres v. NYCHA, 65 A.D.3d 442 (1st Dep’t 2009) .................................................. 16, 31, 34, 35

Earl v. Turner, 303 A.D.2d 282 (1st Dep’t 2003), lv. denied, 100 N.Y.2d 506 (2003) .................................................................................. 15

Feliz v. Wing, 285 A.D.2d 426 (1st Dep’t 2001), lv. dismissed, 97 N.Y.2d 693 (2002) .............................................................................. 15, 22

Filonuk v. Rhea, 84 A.D.3d 502 (1st Dep’t 2011) .................................................................... 29

Goldberg v. Kelly, 397 U.S. 254 (1970)................................................................................. 17, 23

Gutierrez v. Rhea, 105 A.D.3d 481 (1st Dep’t 2013) ........................................................... 29, 33

Hendry v. D’Elia, 91 A.D.2d 663 (1982) ................................................................................... 15

In re Delio, 290 A.D.2d 6 (1st Dep’t 2001) ...................................................................... 43

In re Dinhofer, 257 A.D.2d 23 (1st Dep’t 1999) .................................................................... 43

iii

In re Hayes, 7 A.D.3d 108 (1st Dep’t 2004) ...................................................................... 43

In re Wisehart, 281 A.D.2d 23 (1st Dep’t 2001) .................................................................... 43

Jackson v. Hernandez, 63 A.D.3d 64 (1st Dep’t 2011) ................................................................ 15, 18

Kunstler v. Galligan, 168 A.D.2d 146 (1st Dep’t 1991), conf’d, 194 A.D.2d 233 (1st Dep’t 1993) ............................................................................................. 43

Kuppersmith v. Dowling, 93 N.Y.2d 90 (1999) ...................................................................................... 29

MacFarlane v. NYCHA, 9 A.D.3d 289 (1st Dep’t 2004) ...................................................................... 13

Marine Terrace Associates v. Kesoglides, 44 Misc. 3d 141(A) (N.Y. App. Term 2014) ................................................. 30

Mathews v. Eldridge, 424 U.S. 319 (1976)................................................................................. 10, 17

Matter of Golub, 190 A.D.2d 110 (1st Dep’t 1993) .................................................................. 43

Matter of Holtzman, 78 N.Y.2d 184 ................................................................................................ 43

McFarlane v. New York City Housing Authority, 9 A.D.3d 289 (1st Dep’t 2004) ................................................................ 29, 33

Mexico Leasing LLC v. Jones, 45 Misc. 3d 127(A) (App. Term, 2d Dep’t 2014) ......................................... 30

Morrissey v. Brewer, 408 U.S. 471 (1972)....................................................................................... 17

Murphy v. DHCR, 21 N.Y.3d 649 (2013) .................................................................. 13, 28, 29, 30

Murphy v. DHCR, 91 A.D.3d 481 (1st Dep’t 2012) .................................................................... 30

iv

Pell v. Board of Educ., 34 N.Y.2d 222 (1974) .............................................................................. 28, 32

People v. Bennett, 29 N.Y.2d 462 (1972) .................................................................................... 25

Schnurr v. Perales, 115 A.D.2d 740 (2d Dep’t 1985) ................................................................... 16

Turner v. Rogers, 131 S. Ct. 2507 (2011) ............................................................................. 13, 14

Vecchio v. Kelly, 94 A.D.3d 545 (1st Dep’t 2012), lv. denied, 20 N.Y.3d 855 (2013) ............. 32

Statutes & Other Authorities:

Article 78 to the U.S. Constitution....................................................................... 6, 23

Mental Hygiene Law Art. 81 ................................................................................... 24

CPLR 1202 ............................................................................................................... 24

CPLR 1202(a) .......................................................................................................... 27

New York Rules of Professional Conduct § 3.3a(1) ............................................... 43

New York Rules of Professional Conduct § 3.3(f)(2)(4) ........................................ 43

New York Rules of Professional Conduct § 8.2(a) ................................................. 43

New York Rules of Professional Conduct § 8.4c .................................................... 43

Paris R. Baldacci, A Full and Fair Hearing: The Role of the ALJ in Assisting the Pro Se Litigant, 27 J. NAT’L ASS’N L. JUD. 447 (2007) ........... 17

The Task Force to Expand Access to Civil Legal Services in New York, Report to the Chief Judge of the State of New York, 2012........................... 41

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PRELIMINARY STATEMENT

CLARA JOSEFINA RUSSO, (Ms. Russo/ Wife/Widow/Petitioner-

Respondent), the woman Appellant seeks to evict and remove from public

housing, is a 76 year-old American citizen. She was raised in the Dominican

Republic by her grandmother but has lived in the Bronx since she was 12

and attended school for about three years. She married Mr. Efrain Plumey-

Soto (hereinafter Mr. Plumey or Husband, but disrespectfully and

unprofessionally referred to as “Efrain” by counsel for Appellant), a man

almost twenty years older, and soon had her only child, Anna. Over the

decades that followed Husband and Wife raised their daughter, living

together at times and living apart at others, particularly during periods when

Ms. Russo was hospitalized. A fragile woman, she has been diagnosed with

bi-polar disorder, schizophrenia and depression. She also suffers from

various physical, but managed afflictions, including diabetes, high blood

pressure, heart failure, and arthritis.

Ms. Russo’s care is overseen regularly by a local psychiatrist and

other neighborhood medical doctors through Medicaid and Medicare, and

she takes several prescribed medications each day supervised by a visiting

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aide. She is very religious and devoted to her local church. Her SSI disability

income is approximately $788 per month, plus $40 per month in food

stamps. She pays $244 per month in rent or use and occupancy to the New

York City Housing Authority (NYCHA, The Authority, Government) and is

current in her payments

Because she is in a familiar environment, Ms. Russo is able to live

alone in the apartment and in the community, as she is living now, in a

NYCHA development of more than 1,000 units, St. Mary’s Park Houses, in

the subject unit 4A, 700 East 156th Street in the Bronx (Appellant’s brief

incorrectly states that it is in Manhattan [App. Brief, p. 15]).

In March of 2009 after a lengthy hospitalization, Ms. Russo was

discharged from a psychiatric facility. She gave up her apartment on nearby

Webster Avenue in order to live with her Husband, who would take care of

her. 1 (See R. at 111, 395.)2 Other than tender, familiar care, and their desire

1 A letter from Ms. Russo’s psychiatrist containing certain facts is mentioned in the S.Ct. decision for the specific purpose of illustrating the omissions of the underlying hearing, such as the letter itself, that had not been obtained or presented at the hearing. It says “Ms. Russo has been hospitalized numerous times including one hospitalization from July 29, 2008 to March 11, 2009 . . . Prior to this hospitalization Ms. Russo had been living in her own apartment with her daughter, but after her discharge in March 2009 she went to live with her Husband [Mr. Plumey] at 700 East 156th Street, Apartment 4A, in the Bronx.” ( R. at 111.) He died May 30, 2010.

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to take care of each other in old age, she had no motive to move into her

Husband’s apartment since she already had the one (non-NYCHA) that she

relinquished at the time she moved to be with her Husband. (R. at 408.)

However, a few months after Ms. Russo relocated, they learned that

Mr. Plumey was suffering from brain cancer, and Ms. Russo became his

caregiver. At the end of May of the following year (2010), almost 15 months

after she came to live with him, he died of cancer of the brain—a cancer that

takes the mind and then the life. (Appellant’s brief states that the Husband

died in May 2011 which if correct would mean that Ms. Russo was in

residence for more than two years, likely having considerable contact with

building management. [App. Brief, p.3].) In the ordinary course of events

the Wife, now the Widow, continued to live in what had become the marital

domicile. She maintained contact with management that she described as

“going to [Manager’s] house.” (R. at 35, lines 10 & 12.) It appears that her

Husband had not made a written request for permission for Husband and

Wife to live together in accord with NYCHA’s policy.

2 Designations (R. at ) refer to the page number in the Record on Appeal.

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When NYCHA moved to evict the Widow, their own social workers

reported that while Ms. Russo was cooperative, pleasant and well-groomed,

she was also mentally impaired. It is undisputed that they diagnosed her as

“hallucinatory, seriously confused” and presenting with “disordered

thinking. They did not find her competent to understand the legal

proceedings against her or to protect her interests. A Guardian ad Litem

(GAL /Guardian) was appointed, Mr. Ellis Shratter, who has since been

removed from the list of approved Guardians Ad Litem by the Office of

Court Administration.3 Petitioner’s mental state and her husband’s brain

cancer are undisputed. (App. Brief, p. 67; R. at 105.)

A Hearing Officer (HO) employed by NYCHA, (but described by

NYCHA as the “Impartial Hearing Officer” [App. Brief, p.18]) conducted

the administrative proceeding. No complaints, charges, or accusations were

presented against Ms. Russo for non-payment of rent or any wrong-doing

that would make her ineligible to live in NYCHA property.

3 Deputy Chief Administrative Judge Fern Fisher has since barred Mr. Shratter from the list of GALS, a subject Petitioner has not had an opportunity to investigate or explore in relation to this hearing. Notification was recently provided to all parties.

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A very brief hearing was held at which Petitioner said, “I have very

mixed up thoughts now.” (R. at 396, line 6.) The assigned GAL, however

affable, was in no way able to provide the assistance, guidance or

preparation the situation required.

The HO conducted the hearing as if Mr. Shratter, who is not an

attorney, and has no legal background, was equipped to respond

appropriately and effectively to the HO’s directives about objections,

examinations, and closing statements. She placed many hats on him: lawyer,

guardian, witness, when he was unprepared to serve as any. The HO recited

procedural rules and legal issues, reciting, for example, that objections must

have a “basis” (as in law), (R at 372 li 18) and instructed Ms. Russo that her

attempted statement was “more a closing, than testimony.” (R. at 44, lines 7-

9.) The only “witness” for Petitioner was the GAL who had no first-hand

knowledge or contact with potential witnesses, nor offer relevant supporting

statements. One NYCHA staff assistant who was examined by counsel

testified beyond his knowledge, and without cross-examination. (App. Brief

p.23, R. at 400 lines 13-20)

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The HO concluded that as no paper trail demonstrated written

permission from NYCHA for the Husband and Wife to live together, the

Widow was not the lawful occupant of the apartment and should be evicted.

This was adopted by The Authority.

An Article 78 Petition to the Supreme Court followed. The judge,

recognizing the egregiousness of the situation, appointed pro bono counsel,

and after various submissions, conference and argument, she issued a

decision, holding that the administrative hearing and its determination were

arbitrary, capricious and did not comport with Due Process. It was therefore

annulled and a new hearing was ordered. It is that Decision, Order and

Judgment that NYCHA appeals.

For Clara Josefina Russo, her simple existence, and home as a safe

haven, is over if The Housing Authority is permitted to evict her. She

knows no place but where she is, close to the mental health support system

that is her lifeline. But that, Appellant tells us, is not the concern of this

government entity charged with providing housing for the poor. (App. Brief,

p.7; R. at 62.) Her current home is her residence of last resort.

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SUMMARY OF ARGUMENTS

DUE PROCESS

Due Process is denied when a mentally incapacitated individual is

not afforded a meaningful opportunity to participate and be heard,

particularly when government has assigned a guardian ad litem, but one who

lacks familiarity with the facts, issues, law, policies and procedures, has

done little or no investigation, and does not provide meaningful assistance to

his ward at a hearing, or attempt to secure additional guidance so that he

may do so.

Due Process is denied when a hearing officer, aware of a

litigant’s disability and confusion, and is also aware of a guardian’s lack of

familiarity with the proceedings, but fails to make the proper inquiries in

light of the circumstances, fails to respect the record vis a vis critical issues,

fails to tailor the proceedings in accord with the limitations and capacity of

the individual grievant, such as assisting her to focus on the issues that the

hearing officer will make the basis of her determination.

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DUE PROCESS AND ERROR OF LAW

It is a denial of due process as well as an error of law for a

hearing officer to end the hearing and reach a determination when there is an

incomplete record in which the rights of a disabled litigant have not been

protected. Moreover, as an extension of a disabled party’s right to have the

representation of a guardian, upon observing the inadequacies of an

appointed guardian, the hearing officer has the authority to discharge and

replace that guardian. The failure to do so constitutes a failure of due

process and an error of law.

HEARING AND DETERMINATION WERE ARBITARY AND CAPRICIOUS

Issues of succession of remaining family members in parallel

forms of public or subsidized housing upon death of the primary resident

must be susceptible to alternatives to rigid adherence to internally adopted

policy and technical requirements. This Court should not unreasonably

permit actual remaining family members to be turned into non- remaining

family members

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Petitioner does not invoke waiver or estoppel, but asserts that she

is entitled to a fact-specific analysis developed at a fair hearing in which she

has meaningful assistance to participate and be heard, as the hearing officer

tailors the proceedings to meet the needs of a disabled litigant.

It is a false equivalence to assume that the presence of a guardian

ad litem equals due process, fairness, meaningful assistance. In addition to

constituting denial of due process, the actions and inactions of both the

hearing officer and the guardian are arbitrary and capricious when the

disabled litigant has no meaningful support or representation despite being

assigned a guardian, which guardian is unprepared, and lacks factual, legal

and procedural knowledge sufficient for the protection the ward. Taken

together with a hearing officer who fails to tailor the proceedings in a

manner consistent with the holdings of the Supreme Court of the United

States, and with the abilities and disabilities of the litigant, the results are

arbitrary and capricious.

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SANCTIONS SHOULD BE IMPOSED FOR RECKLESS, UNTRUE AND UNPROFESSIONAL ATTACKS ON A SUPREME COURT JUSTICE

This Court should not permit members of the Bar, including those

employed by government, to make reckless, disrespectful, insulting and

untrue allegations against a highly respected judge presiding in this

Department and this Judicial District.

ARGUMENT

POINT I. THE ADMINISTRATIVE HEARING DID NOT COMPORT WITH MINIMUM

STANDARDS OF DUE PROCESS

In its barest form due process demands a meaningful opportunity to

participate and be heard. (Mathews v Eldridge, 424 U.S. 319 [1976]) This

was not afforded to the mentally impaired Petitioner-Respondent, as a party

to a governmental, adversarial legal proceeding.

Ms. Clara Josefina Russo was denied due process by the action and

inaction of NYCHA through its Hearing Officer employee, and the Guardian

Ad Litem it provided.

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The most telling words uttered at the 45-minute administrative

hearing came from Petitioner at the end of the proceedings: “I have mixed up

thoughts now.” (R. at 396, line 6.) She had been asked nothing specific by

the Hearing Officer and was provided with no opportunity to focus on the

specific issues and, have the opportunity to respond to those issues on which

the Hearing Officer would determine Ms. Russo’s right to remain in her

deceased Husband’s apartment. Rather, the Hearing Officer merely inquired

in the most generalized and nonspecific way: “Miss Russo, is there anything

you would like to say or testify to or anything you’d like to add, m’am. Your

[sic] under – you don’t have to if you don’t want to.” (R. at 394, lines 8–11.)

(See also R. at 395, lines 20–21; R. 408, lines 10–12 [“do you want to add

anything”].)

The HO knew, or should have known, that Ms. Russo was capable of

responding to direct questions as that is clearly stated in the Mental Health

Report that the HO placed in evidence as her own exhibit. (HO Ex. 2; R. at

3–63.) But she asked no direct questions.

In response to the first inquiry (“anything you would like to say” [R.

at 394]), Ms. Russo attempted an emotional statement about her husband’s

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wish that she move in with him upon being discharged from St. Barnabas

Hospital so he could take care of her (R. at 395). Rather than asking her any

direct or follow-up questions regarding the dates and circumstances of her

discharge and her moving in with her husband, the Hearing Officer

interrupted and admonished her. “Okay, well that’s more like a closing

statement, but do you have any other evidence you would like to say . . .,” to

which Ms. Russo was left to say, “I have mixed up thoughts now.” (R. at

396, line 6.)

Ms. Russo attempted another emotional statement, noted as

“inaudible” in the transcript. (R. at 408, lines 13–24.) But her statement

included a plea to be able to remain in the apartment until she died and was

then cremated and her daughter could pray for her. There was another

attempt at a narrative about her husband’s death-bed wish about her taking

care of him. (R. 408, at lines 9-24.)

Compare R. 395-96 (a series of “okays” to Ms. Russo’s statement regarding

joining her husband’s household), (R. 408-409) Again the Hearing Officer

made no effort to clarify the statement or ask a direct question regarding her

co-residency with her husband, (R. at 409, lines 15–25.) Instead the Hearing

13

Officer’s response was that “Miss Russo's closing statement sounded a little

bit like testimony but it wasn't, it was a closing remark.” (R. at 410, lines 7–

9.)

The Hearing Officer failed to otherwise address with Ms. Russo the

essential factual and legal issues on which her right to remain in her

deceased husband’s apartment and avoid homelessness would turn, i.e.: (1)

when was she discharged from St. Barnabas Hospital and moved into the

apartment (which would show that she met the one-year co-residency

policy); (2) why a written request was not made to NYCHA for her to

permanently join her husband; what contact she had with management to

make them aware of her presence (which was essential in determining

whether there were facts that might excuse an oversight pursuant to

MacFarlane v NYCHA 9 AD3d 289 [1st Dep. 2004] and Murphy v DHCR

21 N.Y.3d 649 ) (2013)

The Supreme Court of the United States recently held that such a

failure to assist an unrepresented litigant (and Petitioner here was de facto

pro se as discussed hereinafter) to develop the record on the key issues does

not comport with due process. (Turner v. Rogers, 131 S.Ct. 2507 [2011]

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[remanding for a new hearing that comports with this due process

requirement].) The U.S. Supreme Court faulted the Hearing Officer in that

case for asking the unrepresented party, as at Ms. Russo’s hearing, merely

whether he “had anything to say,” without specifying any of the issues being

considered, and not asking “any follow-up questions or otherwise

address[ing]” those key factual issues. (Id. at 2513–14 & 2519.) The Hearing

Officer merely responded to the unrepresented person’s rambling statement

with “okay.” (Compare Turner, 131 S.Ct. at 2513, with R. at 408-9.)

Accordingly, the U.S. Supreme Court found that the unrepresented

person was not given “an opportunity at the hearing . . . to respond to

statements and questions about” the key issue. (Turner, 131 S.Ct. at 2519.)

The Supreme Court held that this deprivation “violated the Due Process

Clause.” (Id. at 2520.)

Due process required such direct inquiries at the hearing in this case

given Ms. Russo’s conceded mental limitations and her emotional and

confused state during the hearing. Indeed Ms. Russo communicated to the

Hearing Officer that she had “mixed up thoughts now,” as she tried to

recount the heart-wrenching and confusing (certainly to her) circumstances

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under which she moved, i.e., for her husband to care for her, (but that when

he became ill with brain cancer, she cared for him). (R. at 396, line 6.)

Under such circumstances of diminished capacity and confusion, this

Court has clearly and consistently held that due process mandates that “a

hearing officer should make inquiries of a pro se participant to adequately

develop the record.” (Jackson v. Hernandez, 63 AD3d 64, 69 [1st Dept.

2011] [distinguishing the case before it where, as contrasted with Ms. Russo,

the unrepresented person understood the issues and coherently presented

evidence in her defense], citing Earl v. Turner, 303 AD2d 282 [1st Dept.

2003], lv denied 100 NY2d 506 [2003] [due process violated where there

was a complete failure to develop the record, including no inquiry into the

central issue, on which the agency offered no evidence]; Hendry v. D'Elia,

91 AD2d 663 [1982] [same where there was a failure to develop the record

even though the pro se Petitioner evinced confusion regarding a central

issue].)

(See also Feliz v. Wing, 285 AD2d 426, 427 [1st Dept. 2001], lv

dismissed 97 NY2d 693 [2002] [affirming Schlesinger, J.: “the brevity of

the hearing and the ALJ's complete failure to develop the testimony

16

presented by the pro se petitioner effectively deprived her of her right to a

fair hearing”]; Schnurr v. Perales, 115 AD2d 740, 741 [2nd Dept. 1985]

[“the Administrative Law Judge's . . . [failure] to delineate the issues upon

which the hearing was to focus or to develop the testimony presented by the

pro se petitioner effectively deprived her of her right to a fair hearing”].)

Similarly, this Court affirmed the vacating of the determination to

evict a daughter, a remaining family member (RFM), who had had brain

surgery and was “confused,” at the administrative hearing. “As a result of

the hearing officer’s failure to question the petitioner who represented

herself pro se about other medical issues and their ramifications, petitioner

was not afforded a full opportunity to be heard, particularly as to when her

co-tenancy commenced.” (Detres v NYCHA, 65 AD3d 442 [1st Dept.

2009].) In the present case, by failing to ask the confused Petitioner when

her co-tenancy with her Husband commenced, the Hearing Officer ignored

this Court’s instructions in Detres.

The unbroken line of cases requiring a Hearing Officer to help an

unrepresented Petitioner develop her testimony where she is unable to do so

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on her own and, as discussed below, is de facto pro se, is rooted in two

fundamental requirements of due process.4

First, “The opportunity to be heard must be tailored to the capacities

and circumstances of those who are to be heard.” (Goldberg v. Kelly, 397

U.S. 254, 268–69 [1970]; see also Morrissey v. Brewer, 408 U.S. 471, 481

[1972] [“It has been said so often by this Court and others as not to require

citation of authority that due process is flexible and calls for such procedural

protections as the particular situation demands.”].) Second, “More precisely,

our prior decisions indicate that identification of the specific dictates of due

process [demanded by the particular situation] generally requires

consideration of . . . the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards.” (Matthews v. Eldridge, 424 U.S. 319, 33–

35 [1976].)

The authority relied on by Appellant is not to the contrary. (App.

Brief, pp. 75–77.) Indeed, this Court’s cases cited there inevitably rely on 4 See more generally Paris R. Baldacci, A Full and Fair Hearing: The Role of the ALJ in Assisting the Pro Se Litigant, 27 J. NAT’L ASS’N L. JUD. 447, 455–57 & 473–78 (2007) (analyzing the constitutional imperative for a full and fair hearing and the role of the ALJ assuring such a hearing for an unrepresented litigant).

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Jackson v. Hernandez in which this Court reasoned that the “general

proposition” is that a Hearing Officer has a duty to assist the unrepresented

litigant to develop the record, except where the issues are simple and the

record shows that the unrepresented litigant understands the issues and

presents evidence. (Jackson, 63 AD3d at 69.)

In contrast, in this case, Ms. Russo clearly did not understand the

issues and was not given an opportunity to present evidence on those issues

as to the co-occupancy, permission, and presence in the building by being

asked direct questions, or having meaningful assistance. Thus both

requirements of due process were clearly violated. Nor was any inquiry

made regarding the basis of the housing assistant’s conclusory statement that

“management” (R. at 87) was not aware of her presence in the apartment (R.

at 400, lines 13–16), particularly in light of Ms. Russo’s statement

apparently to the contrary, “I know him [the housing assistant] for a while

now. . . . I go to his house [obviously meaning “office”]” (R. at 401, lines

10–12) and her inability to formulate such an inquiry on her own (R. at 401,

line 15).

19

Any questions by the Hearing Officer were put to the Guardian ad

Litem, who had no first-hand or, in many instances, even any hearsay

knowledge regarding the issues with Ms. Russo being called as a witness or

sworn in to testify. (R. at 377, lines 7–14.) Further any attempt by her to say

something was cut off and characterized as a “closing,” not as evidence (See,

e.g., R. at 393, line 21 & at 396, line 6.) or silenced by the Guardian Thus

these failures of inquiry heightened the risk of an erroneous determination

since essential and relevant facts were excluded from the record on which a

decision would be made.

NYCHA’s appointment of a GAL confirms the reality that Ms.

Russo, the individual whom they seek to tear from the peaceful shelter of her

deceased husband’s home, was incapable on her own, without meaningful

assistance and without direct questions, of both understanding the issues and

presenting in a coherent manner facts relevant to her co-residency with her

husband.

The GAL’s presence at the hearing did not address or cure the due

process defects of the hearing demonstrated above. In fact, in this case,

having the GAL created the mere illusion of due process. The Hearing

20

Officer acted as if the GAL was a lawyer, although she was fully aware that

he was not. (R. at 202 & 204.) This distortion of his role created the worst of

two worlds for Ms. Russo. That is, she had no meaningful assistance, but

the hearing was treated as if she had.

The GAL was completely unaware of the procedural rules of

evidence, objections, direct and cross-examination and burden of proof

applicable at the hearing. For example, he misperceived both the order of

the hearing and, therefore, that the burden was on Ms. Russo to demonstrate

that NYCHA’s underlying decision was erroneous (R. at 378, lines 3–8); he

perceived himself as a party in the proceeding along with Ms. Russo, stating

“We’re representing ourselves” (R. at 370, lines 22–23 [emphasis added]);

he made himself the sole witness, even though he had no personal

knowledge of any of the facts (R. at 377, lines 7–19); when he realized

towards the end of the hearing that he could call Ms. Russo, he said he

would “cross-examine” her (R. at 394, lines 3–7); In fact, he never called her

as a witness, indeed silencing her (rather than speaking to her privately, if

necessary) when she attempted to speak: “Shh. Shh.” (R. 382, line 21).

21

The failure to develop the factual record both regarding the length

of Ms. Russo’s co-residency and the circumstances surrounding her moving

into the apartment where the pair could take care of each other in their old

age is clear. When Mr. Shratter was asked a key and essential question

regarding how long Ms. Russo lived in the apartment before her husband

died, he was forced to admit, “That I don’t know. I don’t know . . .” (R. at

393, line 11). That was a primary question, and ascertainable from his ward,

and as demonstrated by the post-hearing letter from Petitioner’s psychiatrist

(see n 1, supra) that he could have sought and obtained sooner. Nor did he

ever call the couple’s daughter or even present a statement from her.

Instead of hypothesizing, Mr. Shratter could have elicited from Ms.

Russo’s, testimony about her moving in with her husband after being

discharged from the Hospital (R. at 395, lines 9–17), which

would have demonstrated that she had lived with him for about 15 months

before his death. (See R. at 21 [letter submitted by the GAL to the Court

from Ms. Russo’s doctor and social worker from the Inwood Mental Health

Center, dated January 18, 2013 after the hearing, is referenced by the

Supreme Court Judge for the specific purpose of illustrating the flaws and

22

omissions at the hearing and what could have been introduced].) “In

rendering its decision finding a violation of due process, the article 78

court[‘s] . . . consideration of documents dehors the fair hearing record was

proper since the documents were offered by petitioner solely to substantiate

her claims of prejudice attributable to the cited due process violations.

(Feliz, 285 AD2d at 427 [affirming Schlesinger, J.].)

Since the GAL had no knowledge of the circumstances of the crucial

issues or the law and policy he was unable to develop a coherent

presentation or to test or rebut the Housing Assistant’s conclusory and

overbroad testimony to the contrary. (R. at 400, lines 13–16, compare with

Ms. Russo’s probative statement arguably to the contrary, R. at 401, lines

10–12.) In fact, the GAL asked no cross-examination questions of

NYCHA’s sole fact witness, the Housing Assistant. (R. at 410, lines 1–3.)

Clearly he was ill-equipped to provide the minimum protections

required to assure due process protections, thereby leaving an incapacitated

person on her own, without meaningful assistance. “Counsel can help

delineate the issues, present the factual contentions in an orderly manner,

23

conduct cross-examination, and generally safeguard the interests of the

recipient.” (Goldberg, 397 U.S. at 270–71.)

While Goldberg referenced “counsel,” similar assistance was needed for the

GAL to function in his ward’ best interests. The GAL was clearly not able to

provide such assistance and, as the record clearly demonstrates, did not

provide such assistance. Recently Hon. Fern Fisher has removed Mr.

Shratter from the panel of Guardians Ad Litem. (See n 3, supra.)

. Since Ms. Russo was asked no direct questions despite the NYCHA

mental evaluation documenting her ability to answer them, she was denied

the opportunity to add her testimony or rebuttal. (HO Ex. 2, R. at 355–63.)

At a minimum, under such circumstances, due process requires that the

Hearing Officer give aid to this unrepresented litigant in developing the

factual record. Thus, the Article 78 Court was correct in finding that the

hearing did not comport with due process and remanding this matter for a de

novo hearing.

24

POINT II THE FAILURE OF THE GUARDIAN AD LITEM TO PROVIDE EFFECTIVE ASSISTANCE IS A DUE

PROCESS VIOLATION

Petitioner does not argue that New York City or New York State

guarantee indigent or low income litigants and grievants a right to counsel in

civil cases, namely evictions.5 But like the right to counsel in criminal and

certain Family Court matters, the right to a guardian, whether pursuant to

Mental Hygiene Law Art. 81 or CPLR section 1202, for a person incapable

of adequately defending his or her interest. is a due process right and the

functions and expectations of a guardian and of counsel are analogous. Like

the right to counsel, the right to a guardian is meaningless unless the services

rendered are effective and meaningful.

There is no defined standard of “competence” in Blatch v Hernandez

(360 F Supp 2d 595 [SDNY 2005]), the federal litigation that established an

absolute right for the mentally fragile to have meaningful representation at a

NYCHA grievance hearing (the term Guardian ad Litem is not mentioned.

“[e]ffective assistance” of counsel is also not amenable to a precise 5 Intro 214, now pending in the City Council, would establish a right to counsel for low income New Yorkers in all eviction cases.

25

definition, and varies according to the unique circumstances of each case.

(Beneveto, 91 NY2d at 712; Baldi, 54 NY2d at 146.) But whether the

assistance is the by legal counsel or guardian, civil or criminal, the question

is always some variation of, “was the representation adequate or effective in

any meaningful sense of the words.” (Id., quoting Droz, 39 NY2d at 463.)

“Defendant’s right to representation entitles him to have counsel conduct

appropriate investigations, both factual and legal…” People v Bennett 29

N.Y.2d 462,467 (1972) quoting Coles v Peyton, 389 F.2d 224 (4th Circ.

1968.)

To render meaningful assistance, the guardian here could have made

efforts to obtain the assistance or advice of Protective Services for Adults; as

well as witnesses, such as Ms. Russo’s psychiatrist, or her daughter. The

record discloses no such effort.. The guardian did not object to the direct

examination of NYCHA’s one witness, even when questions and/or answers

were palpably improper, i.e. what knowledge management possessed

regarding Petitioner’s residency. (R. at p.87, App. Brief. P. 23.) Even

though the GAL introduced Mr. Plumey’s death certificate (Ex 2) he said the

26

death occurred in 2012 and, ironically, Ms. Russo corrected him (May 30,

2010). (R. at 380 lines 13-25).

The guardian, it must be said, failed to provide effective or

meaningful assistance, The guardian failed to fulfill his obligation to his

ward. The Authority’s appointment of a guardian created the illusion of due

process without creating the reality.

POINT III. THE GUARDIAN AD LITEM’S INEFFECTIVE

ASSISTANCE SHOULD HAVE BEEN APPARENT TO THE HEARING

OFFICER; IT WAS AN ERROR OF LAW TO CONCLUDE THE HEARING AND RENDER A DETERMINATION

The Authority’s determination violated due process and was affected

by an error of law.

Blatch v Hernandez (360 F Supp 2d at 613) holds that it is a due

process violation for NYCHA to conduct a hearing without appointing a

guardian ad litem where the tenant is incapable of representing himself or

herself competently, comprehending the proceedings or securing appropriate

27

representation for himself or herself. NYCHA properly determined that

petitioner, Clara Josefina Russo, has a mental impairment and that her

judgment and insight are wanting, necessitating the guardianship.

CPLR 1202 (a) provides that the forum in which an action is heard

may appoint a guardian ad litem upon its own initiative. That authority

necessarily implies the authority to remove and replace that guardian where

it is clear that she or he is not adequately discharging his/her duties.

In view of Petitioner’s due process right to the effective assistance of

a guardian and the guardian’s inability to discharge his responsibility to his

ward, it was an error of law for the Hearing Officer to close the hearing and

render a determination adverse to the petitioner.

Moreover, Appellant’s argument that any issues Petitioner failed to

preserve for judicial review by not raising them at the hearing is circular and

not rational in light of the inadequacies of the hearing

and failure by HO and GAL to make the necessary record. (See App. Brief

at p. 39.)

28

POINT IV. THE ADMINISTRATIVE HEARING AND DETERMINATION ARE ARBITRARY, CAPRICIOUS,

UNREASONABLE

In addition to Petitioner’s due process claims, this is a case where an

administrative determination must be set aside as unreasonable, arbitrary and

capricious. (Pell v Board of Educ., 34 NY2d 222 [1974].)

LEGAL LANDSCAPE

Murphy v New York State Division of Housing and Community

Renewal (21 NY3d 649 [2013]) involved a dwelling in the Mitchell-Lama

mode, while the Russo housing development is owned and managed by

NYCHA. Both are publicly supported or subsidized housing models, one

benefiting low income residents, while the other, NYCHA, serves the very

poor. But the two models have the same mandates, goals and purpose:

decent, safe, sanitary affordable housing. Both administrations have policies

regarding remaining family members and succession rights to a home after

the death of the lessee or primary occupant. Murphy “temper[s] the harsh

consequences of the death . . . of a tenant for their . . . family members.” (21

NY3d at 653.)

29

The limitation on remaining family member rights imposed by

Appellant is a policy, not a rule and not a law. (Filonuk v Rhea, 84 AD3d

502 [1stDept. 2011]; Abdil v Martinez, 307 AD2d 238, 241 [1st Dept.

2003].) It must be “scrutinized for genuine reasonableness and rationality

in the specific context.” (Murphy, 21 NY3d at 654–655, citing Kuppersmith

v Dowling, 93NYS3d 996 [1999].) “Technical noncompliance” is not an

absolute bar to succession. (Id. at 654–655 (Mitchell-Lama); Gutierrez v

Rhea 105 AD3d 481 [1st Dept. 2013]; McFarlane v New York City Housing

Authority, 9 AD3d 289 [1st Dept. 2004].) In light of the rejection of

“absolute and unwavering rigidity” in succession policy, inter alia

Appellant’s steely position must be rejected in this instance.

Where (as here) there is no ineligibility factor, (criminal record, drugs,

=, unfavorable NYCHA history or anything damaging to The Authority or

other residents), and no basis, other than a technical gap such as a missing

income statement, in the Mitchell-Lama policy, and written permission in

NYCHA housing, succession rights should not turn an actual surviving

family member into a non-remaining family member.

30

A public policy understanding of Murphy, along with a legal

analysis, has recently been applied in a variety of circumstances and cases.

Succession is proper as long as the RFM lived primarily – even if

intermittently -- in a rent controlled or rent stabilized apartment for the

relevant minimum period. Mexico Leasing LLC v Jones, 45 Misc 3d127(A)

(App.Term, 2d Dept. 2014). Murphy applied to project-based Section 8

tenancy despite RFM not appearing on annual income statement. Marine

Terrace Associates v Kesoglides, 44Misc.3d 141 (A) N.Y. App. Term.2014)

Most significant, this Court held in the intermediate appeal of Murphy

v DHCR that “the failure to file the requisite annual income affidavit is not

fatal to succession rights, provided that the party seeking succession proffers

an excuse (emphasis added) for such failure.” (91 AD3d 481, 482 [1st Dept.

2012], affd 21 NY3d 649.)

Ms. Russo had and has profound “excuses” for the apparent lack of a

paper trail supporting her tenancy, but she never had an opportunity to

proffer them, resulting in the denial of due process (discussed above) and the

Supreme Court’s finding of an arbitrary and capricious result. The lack of

any direct questions posed to the fragile and disabled Ms. Russo regarding,

31

for example, when she gave up her own apartment to live with her spouse,

and the lack of appropriate assistance and representation to show that she

resumed life with her Husband in March 2009, almost fifteen months before

his death on May 30, 2010, were arbitrary and capricious. “[My Husband]

told [me] that I’m going to die, so I move in… and he told me when they

discharge me [from the hospital] then come home with me, so he could take

care of me. (R. at 395, lines 11–13.)

This Court has previously affirmed the vacating of a determination to

evict a daughter, a remaining family member (RFM) who had had brain

surgery and was ”confused” at the administrative hearing. “As a result of

the Hearing Officer’s failure to question the petitioner, who represented

herself pro se, about other medical issues and their ramifications, petitioner

was not afforded a full opportunity to be heard, particularly as to when her

tenancy commenced.” (Detres v NYCHA 65 AD3d 445 [1st Dept. 2009].)

Similarly, as the HO here ignored the Detres holding, the confused

Petitioner was never even asked the key question of Detres, i.e., when her

co-tenancy in the apartment commenced.

32

In Adler v NYCHA (927 NYS2 814 [Sup Ct, NY County 2011], affd

95 AD3d 694 [1st Dept. 2012]), the Wife who was denied succession rights

had been “warehousing” other NYCHA property, a substantive violation that

made her ineligible to acquire her deceased husband’s lease under any

circumstances. (Appellant also cites a lower court succession case in which

RFM status was denied, but fails to mention that there, as in Adler, the

surviving spouse was ineligible for NYCHA housing [due, in that case, to

domestic violence] [App. Brief, p. 43].)

In non-housing cases, including police misconduct, this Court has

applied fundamental fairness to family members finding that despite

petitioner’s repellant behavior, portions of an administrative determination

were “shocking to one’s sense of fairness.” (Pell, 34 NY2d at 233 [emphasis

added].) This Court held, “we cannot operate merely as a rubber stamp of

the administrative determination ‘if the measure of punishment or discipline

imposed is so disproportionate to the offense, in the light of all the

circumstances as to be shocking to one’s sense of fairness.’” (Vecchio v

Kelly, 94 AD3d 545,546 [1st Dept. 2012], lv denied 20 NY3d 855 [2013],

quoting Pell, 34 NY2d at 233.)

33

Petitioner does not invoke the doctrines of waiver or estoppel. She

does assert her entitlement to a hearing that would allow a fact-specific

analysis based on evidence of factors showing that the unwavering

insistence on the policy of written request and written permission for

succession may be overcome by other circumstances. A full and fair hearing

must allow the opportunity to present evidence to support the right to be

recognized as the lawful tenant notwithstanding the absence of the paper

trail so rigidly relied on by Appellant. MacFarlane stands for the

proposition that knowing about an occupant’s presence but not taking

preventative action is “one type of circumstance that could be of critical

importance in establishing a right to be treated as treated as a remaining

family member despite the absence of notice or written consent.’’

MacFarlane v NYCHA 9 A.D.3d 289 at 291 (1ST Dept. 2004). Similarly

Gutierrez v Rhea overcoming “an important component.” citing MacFarlane

105 A.D.3d at 485-86.

34

THE HEARING

The administrative hearing, a governmental, adversarial proceeding,

lacked meaningful support or assistance for the incapacitated Petitioner,

leaving her de facto pro se. The unrealistic expectations the HO had of the

non-lawyer GAL – reciting that any objections must have a [legal] basis that

a non-lawyer would not know. (R. at 372, lines 18–19; her failure to inquire

[see Point I].); the use of Petitioner’s disability against her : “She was

unclear as to when she actually moved in.” (R. at 418) inter alia were

arbitrary and capricious.

It was obvious that the confused, hallucinating, Ms Russo was, in fact,

“confused.” She plainly said, “I have mixed up thoughts now.” (R. at 396,

line 6) in response to the HO’s open-ended, generalized queries. Yet it is

documented in the Mental Health Report, a Hearing Officer exhibit, that

Petitioner was capable of answering direct questions. In fact, NYCHA’s

social workers entered into their report of Ms. Russo’s interviews,

“answered all questions.” (HO Ex. 2.)

But at the hearing no one asked her a key question, the very same key

question omitted in Detres: “when did you move in?” Nevertheless the HO,

35

concluded, “The Grievant [Petitioner Respondent herein] was unclear as to

when she actually moved in.” (R. at 418.) The GAL, the only sworn, non-

NYCHA “witness” was asked when Ms. Russo moved in but he did not

know the answer. (R. at 393,line 11.) Nevertheless the HO accepted, that

Ms. Russo had told a NYCHA employee that she’d lived in the apartment

for three years (R. at 254) and contrasted that with her alleged comment,

“admitted by GAL” that she’d said they’d lived together for just ten months ,

when what she said was that she had taken care of her husband for ten

months (R. at 408) until he died. “[A]nd he made me promise from his bed

that I will take care of him and I take care of him for ten months,” has been

used against her to mean that she resided with Mr. Plumey for only ten

months rather than approximately 15 months. (R. at 408.)

The Detres administrative determination was vacated because the

confused Petitioner was not afforded a full opportunity to be heard,

particularly, as herein, regarding when her co-tenancy commenced. The

HO, there, and here, ignored that essential question just as she explored no

medical issues and their ramifications in accord with Detres. Nor did she

36

offer an adjournment in light of the circumstances presented. (See Blatch,

360 F Supp 2d at 605.)

THE GUARDIAN AD LITEM

It is a false equivalence to conclude that if there is a guardian,

there is due process or meaningful representation.

The government, in its role as landlord, proclaims that Ms. Russo’s

personal circumstances, including mental illness, are not relevant to her

eviction (App. Brief, p. 7 ) [“…those [mitigating factors] raised by Petitioner

do not warrant a different result]), but also argues that those circumstances

were remediated by the appointment of a GAL, a person who lacks the

knowledge, skill and training to make up for Ms. Russo’s disability in any

meaningful way.

Any adult who presents a resume, two references, and passes an

interview and background check may be a Guardian Ad Litem. The training

is rudimentary and supervision is non-existent. However nice and

empathetic the GAL may be, he does not possess the background or

knowledge that would equip him for the undertaking presented. He was

used to create the illusion of representation, as if he had the necessary

37

information and understanding of the procedures, vocabulary and familiarity

with what witnesses or statements to secure, and how, in order to provide

evidence or explanations.

While Ms. Russo is not familiar with the distinction between a GAL

and an attorney and is not keenly aware that Mr. Shratter is not an attorney,

at no time was this explained to her at the hearing even if a form mailing

was sent to her. (The term guardian ad litem does not appear in Blatch [360

F Supp 2d 595]) No suggestion is made here that Mr. Shratter ever held

himself out as an attorney.

The GAL’s role, created the illusion for all, not just Petitioner, that

she was represented, and that government was fulfilling its obligations.

This was “a perfect storm.” The HO proceeded as if the gentleman who

was appointed to give an incapacitated woman some basic assistance, knew

the procedures, vocabulary, evidence, objections, examination and cross-

examination, the significance of the record and its development, when it was

clear that he did not.

The HO placed many different hats on the GAL: lawyer, guardian,

witness, none of which could be fulfilled. At no time did the HO explain

38

what a GAL is or who Mr. Shratter is in relation to this case or ascertain if

Ms. Russo knew that he was not her lawyer, as she, HO, referred to lawyers.

It cannot be said that Petitioner knowingly chose not to have a lawyer; her

Guardian made that choice.

When she asked Ms. Russo if she is satisfied with Mr. Shratter’s

abstract point, Petitioner’s response was about her anticipated death and her

Husband’s (R. 408. Lines 9-25)

The HO relies on GAL’s “admissions” on behalf of Ms. Russo (App.

Brief, pp. 18, 19, 20, 34, 42), that he is not in a position to make, including

incorrect information and lack of information.

The GAL did not offer any medical testimony or written statements

that would clarify the relocation date (and, separately, the effect of brain

cancer on the Husband). Anna Plumey or a psychiatrist with knowledge of

the residential situation could have appeared, but without legal training, the

GAL presumably did not know how to issue a subpoena and did not consult

someone who would know. The fact that he did obtain a medical letter

report, albeit after the hearing, concerning when Ms. Russo moved, shows

that it was obtainable had it been sought. (See n 1, supra.)

39

While the GAL did introduce Mr. Plumey’s Certificate of Death (Ex

L), he cited the wrong year and, ironically, Ms. Russo corrected him. (R. at

380 lines 13-25). Inexplicably the GAL offered irrelevant forms filed by

Mr. Plumey for 2007 and 2008 years that were not in issue. Those were then

relied on by NYCHA to show that Mr. Plumey said he lived alone, which

was true for that period, and that he was competent to complete the forms,

which was also true at that time, as it was prior to the appearance of his brain

cancer. They were also used to show that he said that no one with a

disability lived in his apartment, even in 2009, also true, as the form clearly

discussed physical disabilities that would require physical accommodations

to the unit, not applicable to Ms. Russo. It is the 2009 form where Mr.

Plumey, not only omitted his Wife’s name, but also wrote the wrong date,

which was then corrected.; this, it is suggested, was a product of the

creeping brain cancer. EX E,F,D.

The GAL offered himself as the only witness although he had no

personal knowledge, or ability or resources to ascertain the facts. When, on

cross-examination he is asked her move-in date, which Petitioner herself was

never asked, he has no answer. (R. at 393, line 11)

40

Appellant alleges that the Petitioner and Guardian-ad-Litem “chose”

not to have legal counsel, but instead to represent “themselves,” despite Ms.

Russo not having the ability to make litigation choices, which is why GAL

was appointed in the first place. It would be unreasonable, irresponsible and

a dereliction of duty for a GAL appointed to this case to choose to dispense

with legal representation rather than ascertain if it was available, and there is

nothing in the record to reflect such efforts. But to suggest that professional

representation for the indigent Ms. Russo was available in the legal

environment of New York and was rejected or declined because Ms. Russo

knowingly chose not to have legal counsel is arbitrary and capricious as well

as uninformed. (R. at370–71-2.)

The role of the GAL is to assist an individual; that assistance may include retaining counsel when

necessary. . . .Petitioner and Shratter gave no indication at the hearing they desired an attorney or intended to retain one in the future. They stated they were ready to proceed. Many competent grievants who appear before

administrative tribunals choose to represent themselves. (Emphasis Added) (App Brief. p. 71-2)

The community of non-profit law practitioners is able to represent

fewer than twenty percent of New Yorkers who seek or need their help in

41

any civil matters, including housing and evictions, a condition that has been

described by Chief Judge Jonathan Lippman as a “denial of equal protection

and equal justice.” (Housing Justice Conference, New York Law School,

December 5, 2014; see The Task Force to Expand Access to Civil Legal

Services in New York, Report to the Chief Judge of the State of New York,

2012.)

It was not rational, and is arbitrary and capricious for the HO to make

life-threatening decisions on the assumption that an indigent tenant who is

mentally impaired, fighting government for her home would choose not to

have legal representation (App. Brief, p. 18), even when HO asks GAL if

they are prepared to proceed themselves. Appellant argues that a person

already found not competent to make litigation choices, made such a choice

(R. at 121), that she chose to litigate, proceed with her claim without counsel.

At no time did HO offer to adjourn for Petitioner and/or Guardian to

attempt to obtain counsel, as she observed Mr. Shratter’s difficulties, or

inform him, if he was unaware of it, that as a GAL he had the authority to

seek counsel for his ward. That is, he had a duty to act in her best interests

42

exercising due diligence to at least attempt to secure counsel for her, or to

assist and advise him.

It is not rational to suggest, as Appellant does, that any poor person

fighting the government to maintain a home, would knowingly choose not to

have professional representation if the option existed. But according to

Appellant, not having a lawyer was an affirmative “choice” by Ms. Russo

(App. Brief, p. 71, p. 370–71.) It is not rational to claim that Ms. Russo

chose to litigate her claim without counsel, when NYCHA had found that

she was not competent to make litigation choices or protect her interests.

POINT V. SANCTIONS SHOULD BE IMPOSED FOR

RECKLESS AND UNPROFESSIONAL ACCUSATIONS AGAINST

A SUPREME COURT JUSTICE

Appellant has submitted to this Court, the court that has jurisdiction

over maintaining the integrity and dignity of the Bar, a brief that, as

illustrated below, makes no less than twenty reckless, unprofessional and

untrue allegations about a respected judge in this Judicial District and

43

Judicial Department, Hon. Alice Schlesinger, in violation of The New York

Rules of Professional Conduct. (Sects. 8.2(a), 8.4c, 3.3a(1), 3.3(f)(2)(4) See

Matter of Holtzman, 78 NY2d 184; Matter of Golub 190 A.D.2d 110 (1st

Dept. 1993); In re Hayes 7 A.D.3d 108 (1st Dept. 2004); In re Delio 290

A.D.2d 6 (1st Dept 2001); In re Dinhofer 257 A.D.2d 23 (1st Dept. 1999); In

re Wisehart, 281 A.D.23 (1st Dept. 2001); Kunstler v Galligan, 168 A.D.2d

146 (1st Dept. 1991) conf’d 194 A.D.2d 233 (1st Dept. 1993),

THE STATEMENTS

“Not only does the lower court shamelessly distort the administrative record and misconstrue legal precedent, it uses this case as a platform to air its wide-ranging yet unfounded criticisms of NYCHA in a transparent effort to undercut NYCHA’s . . . .” (App. Brief, p.1 [emphasis added].) “After misrepresenting the administrative hearing transcript, misconstruing the relevant case law…” (App. Brief, p. 2 [emphasis added].) “Justice Schlesinger’s portrayal of the GAL’s and H.O.’s performance at the hearing is both manifestly false and unfairly insulting to those two individuals.” (App. Brief, p. 7 [emphasis added].) “Justice Schlesinger then recruited her former colleague, Justice Emily Jane Goodman to represent Petitioner pro bono.” (App. Brief, p. 26 [emphasis added].) “After misrepresenting the administrative hearing transcript and gratuitously maligning . . . .” (App. Brief, p. 28 [emphasis added].)

44

“Justice Schlesinger’s agenda is manifested in the first sentence of the decision.” (App. Brief, p. 31 [emphasis added].) “. . . she ordered the Housing Authority to make an exception to its written-consent requirement . . . .” (App. Brief, p. 73) [emphasis added].) “In a blatant attempt to dismantle Housing Authority’s…policy…Justice Schlesinger’s vociferous effort to undermine NYCHA policy is inappropriate.” (App. Brief, p. 31 [emphasis added].) “In one of her many mischaracterizations of this Court’s holding . . . .” (App. Brief, p. 38 [emphasis added].) “. . . in which she similarly attempted to disembowel . . . a fact that Justice Schlesinger neglects to mention.” (App. Brief, p. 51 [emphasis added].) “Off the record, she ordered… .” (App Brief, p. 25 [emphasis added]). “On her results-oriented mission, Justice Schlesinger bizarrely criticizes . . . .” (App. Brief, p. 61 [emphasis added].) “Justice Schlesinger clearly misunderstands or misrepresents . . . procedure . . . .” (App. Brief, p. 65 [emphasis added].) “Justice Schlesinger distorts . . . with the sole purpose of disparaging . . . .” (App. Brief, p. 65 [emphasis added].) Justice Schlesinger rationalizes . . .by conveniently claiming . . . .” (App. Brief, p. 61 (emphasis added].) “Justice Schlesinger nonsensically posited . . . .” (App. Brief, p. 67 [emphasis added].) “. . . Justice Schlesinger’s summary . . . is an obvious distortion of the hearing.” (App. Brief, p. 72 [emphasis added].)

CONCLUSION

The termination of Petitioner's occupancy is based on and constitutes a

denial of due process, is affected by an error of law, and is arbitrary and

capricious. The determination should be annulled and the matter remanded

to the administrative agency for a new hearing. Appellant and counsel should

be sanctioned for reckless, defamatory and unprofessional conduct in the

prosecution of this appeal with respect to a Justice of the New York State

Supreme Court, along with such other relief as this Court shall deem just and

proper.

Dated: February 3, 2015 New York, New York

Respectfully submitted by:

£wt;~~ Emily Jane Goodman Esq. 45 Broadway Atrium 17th floor New York, New York 10006 (212) 257-6112; ejg(a)emilyjanegoodmanlaw.com

45

46

Paris R. Baldacci Esq. Emeritus Clinical Professor of Law Director Cardozo School of Law Housing Rights Clinic 55 Fifth Avenue New York, New York 10003 212 290 0200; Baldacci@yu.edu

Attorneys for Petitioner-Respondent

47

APPELLATE DIVISION – FIRST DEPARTMENT PRINTING SPECIFICATIONS STATEMENT

I hereby certify pursuant to 22 NYCRR § 600.10 that the foregoing brief

was prepared on a computer using Microsoft Word.

Type. A proportionally spaced typeface was used, as follows:

Name of typeface: Times New Roman Point size: 14 Line spacing: Double

Word Count. The total number of words in this brief, inclusive of point

headings and footnotes and exclusive of pages containing the table of

contents, table of citations, proof of service and this Statement is 8,040.

Dated: New York, New York February 3, 2015

Emily Jane Goodman Esq. 45 Broadway Atrium 17th Floor New York, New York 10006 (212) 257-6112; ejg@emilyjanegoodmanlaw.com

Paris R. Baldacci Esq. Emeritus Clinical Professor of Law Director Cardozo School of Law Housing Rights Clinic 55 Fifth Avenue New York, New York 10003 212 290 0200; Baldacci@yu.edu

Attorneys for Petitioner-Respondent