New York Housing Law for the Low-Income Client...
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Transcript of New York Housing Law for the Low-Income Client...
Practising Law Institute1177 Avenue of the Americas
New York, New York 10036
New York Housing Law for the Low-Income
Client 2016
ChairAfua Atta-Mensah
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Prepared for distribution at the NEW YORK HOUSING LAW FOR THE LOW-INCOME CLIENT 2016 Program New York City, October 18, 2016 CONTENTS: PROGRAM SCHEDULE ........................................................................... 7 FACULTY BIOS ...................................................................................... 13 1. Common New York State/City Rental Subsidies Important to
Low-Income Clients ........................................................................ 21 Jane Landry-Reyes Brooklyn Legal Services, LSNYC
2. Housing Court 101 .......................................................................... 45
Kamilla Sjödin Urban Justice Center
a. New York City Civil Court Act § 110. Housing Part ................ 57
b. New York Real Property Actions and Proceedings Law § 711. Grounds where landlord-tenant relationship exists ................................................................... 63
c. New York Real Property Actions and Proceedings Law § 713. Grounds where no landlord-tenant relationship exists ................................................................... 65
d. New York City Council File # INT 0129-2014, Remedies for breach of the duty of an owner to refrain from harassment of tenants ......................................... 67
e. New York City Council File # INT 0627-2007, Duty of an owner to refrain from harassment of tenants and remedies for the breach of such duty.................. 71
f. New York Real Property Law § 234. Tenants’ rights to recover attorneys’ fees in actions or summary proceedings arising out of leases of residential property ................................................................. 77
g. New York City Civil Court Act § 204. Summary proceedings............................................................................. 79
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h. New York Univ. v. Farkas, 468 N.Y.S.2d 808 (Civ. Ct., New York County 1983) ........................................... 81
i. New York Real Property Law § 233-b. Retaliation by landlord against tenant ............................................................ 85
Submitted by: Kamilla Sjödin Urban Justice Center
3. Housing Law 101 (PowerPoint slides) ............................................ 89
Kamilla Sjödin Urban Justice Center
4. Overview of New York City Housing Authority (NYCHA)
Housing and NYCHA Administrative Proceedings ....................... 127 Afua Atta-Mensah Community Voices Heard Ann R. Ascher Queens Legal Services
INDEX ................................................................................................... 191 Program Attorney: Ilizabeth Hempstead
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Program Schedule
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New York Housing Law for the Low-Income Client 2016 New York City and Live Webcast, www.pli.edu,October 18, 2016, 1:30-5:00PM
PROGRAM SCHEDULE
1:30 Introduction Afua Atta-Mensah
1:45 Common New York State/City Rental Subsidies Important to Low-Income Clients Section 8 program Senior Citizen Rent Increase Exemption - SCRIE Disability Rent Increase Exemption - DRIE HIV/AIDS Services Administration - HASA Practical tips for obtaining and preserving rental subsidies
Jane Landry-Reyes
2:45 Housing Court 101: Practice Tips for Attorneys Representing Tenants Overview of types of cases Procedural issues Preparing papers, engaging in discovery, and case preparationDefenses to alleged non-payment of rent and other claims Settlement possibilities Post-settlement or hearing considerations (including rent, repairs, stays)
Kamilla Sjödin
3:45 Networking Break
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4:00 New York City Housing Authority (NYCHA) Administrative Proceedings - Where to Begin When Representing NYCHA Tenants or Clients Seeking to Be NYCHA Tenants Overview of NYCHA Discussion of administrative grievances Defenses to termination of tenancy proceedings Current case law as related to NYCHA administrative grievances
Ann R. Ascher, Afua Atta-Mensah
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CHAIR
Afua Atta-Mensah Executive Director Community Voices Heard New York City
FACULTY
Ann R. AscherDirector, Housing Rights Project Queens Legal Services New York City
Jane Landry-Reyes Senior Staff Attorney Brooklyn Legal Services, LSNYC New York City
Lucy Newman Staff Attorney, Law Reform Unit The Legal Aid Society New York City
Kamilla Sjödin Director of Eviction Prevention Services Urban Justice Center New York City
Program Attorney Ilizabeth Hempstead
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Faculty Bios
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Afua Atta-Mensah is the new Executive Director of Community Voices Heard. Prior to this position, she was the Director of Litigation at the Safety Net Project of the Urban Justice Center. She received her Bachelors from Trinity College where she was a Presidential Fellow and is a graduate of Fordham University School of Law where she was a Stein Scholar. Afua has previously worked at: The Legal Aid Society's Civil Reform Unit and the Center for Working Families. In 2008 she was the recipient of a Fulbright Fellowship that sponsored her work at the International Federation of Women Attorneys-Accra, Ghana. Afua has also worked as an advisor to community based organizations throughout New York City and has served as an adjunct professor at Fordham Law.
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Ann Ascher directs the Queens’ Housing Rights Project. A lifelong Queens resident and graduate of CUNY School of Law, Ms. Ascher has coordinated area law student Sandy relief opportunities, as well as coordinated tenant advocacy projects in low-income housing communities throughout Queens. She has extensive experience litigating HP and related actions. Prior to joining LS-NYC, Ms. Ascher was a housing attorney with the Legal Aid Society in northern Manhattan.
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Jane Landry-Reyes has been a public interest attorney representing indigent clients with
housing issues, for approximately 23 years. Currently, she is a Senior Staff Attorney in the Elder
Unit at Legal Services New York City - Brooklyn Legal Services (“LSNYC - BLS”) where she
has practiced for the past 12 years. Her work is primarily in eviction prevention and low income
housing subsidy preservation. She litigates in NYC Housing Court, State Supreme and
occasionally in Federal Court as well as at administrative hearings to protect her low income
clients’ benefits and entitlements. She has also joined forces with the Workers’ Rights Unit at
LSNYC-BLS to provide representation to building workers who have been improperly paid
wages and who face eviction from employment related housing; many of these clients are senior
citizens. Ms. Landry-Reyes also partners with community organizations to provide group
representation, training and advocacy to tenants’ groups seeking to improve conditions and
access to justice in the courts.
Before joining Legal Services, Ms. Landry-Reyes worked for approximately eight years,
as a Clinical Instructor/Senior Staff Attorney with the Elder law Legal Clinic at Brooklyn Law
School that provided free legal services to senior citizens in a variety of civil legal matters. She
is a 1993 graduate of Brooklyn Law School and proud Edward V. Sparer Alum and co-founder
of the student based Brooklyn Law Students for the Public Interest (“BLSPI”). Currently,
Ms. Landry-Reyes is an adjunct clinical instructor co-teaching the “HELP” Clinic (Helping
Elders Through Litigation and Policy). She mentors and supervises 5 Brooklyn Law School
students each semester who gain invaluable practical skills while also providing critically needed
representation for indigent senior citizens.
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Lucy Newman is a Staff Attorney in the Law Reform Unit of The Legal Aid Society’s Civil Practice. Lucy represents public housing residents and Section 8 participants in administrative proceedings at NYCHA and City, State and federal court proceedings. She also represents Legal Aid in meetings with city-wide public housing groups and works on affirmative law reform housing issues. From 2005-2011 Lucy was a Staff Attorney in the Housing Law Unit of Legal Aid’s Bronx Neighborhood Office where she represented individual tenants in nonpayment and holdover proceedings in Bronx Housing Court
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Kamilla Sjödin, Esq. Director of Eviction Prevention Services
Kamilla is the Director of Eviction Prevention Services at the Safety Net Project of the Urban Justice Center where she supervises their landlord/tenant practice. Previously, she supervised the Housing Project at the New York Legal Assistance Group, which provides legal services to tenants throughout the five boroughs primarily through direct representation in Housing Court and before various agencies. Kamilla also worked for the New York City Council as the Counsel to the Committee on Housing and Buildings and the Subcommittee on Public Housing in which capacity she drafted housing related legislation and worked on citywide housing policies. She has experience providing direct services to clients living with HIV/AIDS and after graduating Rutgers School of Law—Newark completed a clerkship with the Hon. Edith K. Payne, J.A.D. in the Superior Court of New Jersey Appellate Division.
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Common New York State/City Rental Subsidies Important to Low-Income Clients
Jane Landry-Reyes
Brooklyn Legal Services, LSNYC
Contributions to these materials from prior Legal Services training materials prepared by Edward Josephson, Rachel Bash, Cathy Bowman, Sandhya Boyd, and Ian Davie, gratefully acknowledged.
If you find this article helpful, you can learn more about the subject by going to www.pli.edu to view the on demand program or segment for which it was written.
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I. THE SECTION 8 PROGRAM
A. Federal Section 8 – Housing Choice Voucher Program – the Housing Choice Voucher program provides tenants with a portable subsidy funded by HUD, but administered by local public housing authorities (hereinafter “PHA”s). The subsidy remains with the ten-ant and they pay 30% of their income in rent for privately owned units. Landlords enter into a Housing Assistance Payment or “HAP” contract with the PHA.
42 USC § 1437; 24 CFR Parts 5 and 982; HUD Guidebook 7420.10G; Local PHA Administrative Plans and NYCHA LHDs
In NYC: Administered by NYCHA, DHCR, HPD
Outside NYC: Administered by a variety of non-profits, municipal-ities and public housing authorities – names can be found at http:// www.hud.gov/offices/pih/pha/contacts/states/ny.cfm.
B. Obtaining the Section 8 Housing Choice voucher subsidy in NYC
New York City Housing Authority (NYCHA) administers over 100,000 vouchers in NYC, however NYCHA’s waiting list is cur-rently closed. Through 2009, NYCHA had an active waiting list, and was issuing new vouchers. But in December 2009, due to a funding crisis, NYCHA cancelled approximately 3,000 vouchers that had been issued but not yet activated, and effectively stopped issuing any new vouchers.
New York City Department of Housing, Preservation & Devel-opment (HPD) administers over 29,000 vouchers in NYC. HPD vouchers are only issued through special programs. Applications are not available to the general public, and must be submitted through designated I intermediaries from different divisions within the agency, management staff from various housing providers, or staff from other governmental agencies. (HPD voucher holders often received their vouchers through a program related to their building, so it is worth checking ACRIS to see if there is a regulatory agree-ment that applies to your client’s tenancy.)
New York State Homes & Community Renewal (HCR) (for-merly DHCR) HCR administers Section 8 vouchers statewide, but only a relatively small number of vouchers in NYC.
C. Project based Sec 8 – these subsidies run with the apartments and tenants cannot take the subsidy with them if they move. HUD pays
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private landlords directly. In NYC, generally located in large multi-family apartment complexes. Tenants pay 30% of income, unless they have an “Enhanced Voucher” (these vouchers are issued when a Section 8 or Section 236 contract is terminated, converted or expires without renewal); tenants pay 30% or conversion date rent whichever is higher.
Section 8 Mod Rehab; Substantial Rehab; New Construction. 42 USC § 1437 24 CFR 882; 881; 880. HUD Handbook 4350.3 (applies to all but Mod Rehab).
In NYC: Administered by NYCHA, DHCR, HPD
Outside NYC: Administered by a variety of non-profits, municipal-ities and public housing authorities – names can be found at http:// www.hud.gov/offices/pih/pha/contacts/states/ny.cfm.
D. Renting with a Section 8 voucher subsidy
The local PHA determines eligibility for apartment size by house-hold size and family composition. Occupancy guidelines are found in the PHA’s local administrative plan.
Apartment rents must be below the “payment standard” established by the local PHA (90-110% of HUD’s annual Fair Market Rent for the area) and “reasonable” compared to other units in the area. Tenants can rent a larger apartment than they are eligible for under the occupancy guidelines if rent is below their payment standard. At initial occupancy, the household can rent a unit with a higher payment standard only if the resulting tenant share is not more than 40% of household income.
When Section 8 vouchers are initially issued for placement, the tenant has a certain length of time to find appropriate housing and this time frame varies by local PHA. E.g. NYCHA’s term is 180 days and HPD’s term is 120 days but both will toll expiration once an apartment has been found and rental process is being com-pleted. DHCR’s term is 60 days and extensions can be requested, but not beyond 120 days. Good cause for extension can also include for reasonable accommodation of a disability. Each PHA’s Admin-istrative plan, available on their website, contains these guidelines.
If household income changes, PHAs must recertify the partici-pant within a reasonable time of request for “interim recertification”. 24 C.F.R. § 982.516(b)(2). NYCHA must process within 60 days of submission of documentation. Barclay federal consent decree and LHD 2013-03; HPD will process at any time and goes into effect
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the month after change reported; DHCR implements interim change in the month following the date of correct calculation.
E. Termination of the Section 8 voucher Subsidy
Federal HUD regulations limit the reasons for which a housing authority may terminate Section 8 benefits for a participant. 24 C.F.R. § 982.552(c) sets out the bases on which the PHA may ter-minate a participant’s subsidy, which include violation of the family’s obligations under 24 C.F.R.§ 982.551.
Common bases for termination of Section 8 participation include, e.g. : failure to complete annual recertification; failure to provide access for apartment inspections; concealment of household income; criminal activity of a household member; long-term sus-pension of subsidy due to HQS violations.
Procedure for termination is described in each PHA’s adminis-trative plan, but will include notice in accordance with federal regu-lation and in most cases, pre-termination administrative hearing where cause for termination must be proven by substantial evidence.
NYCHA’s process is additionally bound by the terms of the First Williams consent decree providing for three warning notices to give the tenant a chance to correct the problem. First a “warning” letter; second, a T-1 or Notice of Termination; third, a T-3 or “Notice of Default”. There is no T-2. A hearing may be requested and if requested within 45 of issuance of the T-3, the subsidy will continue.
If the NYCHA Section 8 subsidy is terminated, restorations shall only be approved for long term suspensions (for failing HQS inspection) and terminations in which the required notices were not properly sent. LHD 09-08.
HPD sends a pre-termination notice giving the tenant 15 days to request a conference. If the participant chooses not to request a conference or is not successful at the conference, a Notice of Ter-mination will go out and the tenant may request a hearing, but has only 21 days from the date on the Notice of Termination to make the request for hearing.
Long term suspension of subsidy for Housing Quality Stand-ards (HQS) inspection failure: may be Landlord or tenant caused based on poor apartment conditions. HUD regulations provide that in the event of an HQS breach, the PHA may terminate, suspend, or reduce housing assistance payments on behalf of the family. 24 C.F.R. 982.404(a). If the breach is caused by tenant, the PHA may terminate assistance to the family (with a hearing). 24 C.F.R.
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982.404(b). If no payments are made under a HAP contract for six months (due to the HQS suspension and the apartment not success-fully passing inspection), the HAP contract terminates automati-cally. 24 C.F.R. 982.455.
NYCHA Policy:
Tenants whose subsidies have been suspended for 6 consecutive months will be terminated from the Program. (LHD 06-16). However, those tenants can be reinstated in one of two ways. Either they can transfer within one year of termination, or they can be reinstated once repairs are done at their current apartment at any time. The Williams Consent Decree will still apply despite the termination. (LHD 06-17).
HPD Policy:
Owner has 28 days to complete non-emergency repairs and if they are not done within that time, will “abate the HAP.” Landlords can self-certify non-emergency repairs. Emergency repairs must be done within 24 hours and will automatically be re-inspected. Admin. Plan, Ch. 8. Tenants must transfer within 6 months of abatement or they will perma-nently lose their subsidy. Admin. Plan. Secs. 14.2.2; 15.4.2.
DHCR Policy:
Owner has 23 hours to correct emergency violations and 30 days to cor-rect non-emergency conditions. If the emergency conditions are not cor-rected, the subsidy will be abated. If the non-emergency conditions are not corrected, DHCR will not approve rent increases. DHCR may ter-minate if repairs are not made. Admin. Plan, Ch. 23.0. The Admin. Plan does not clearly state whether tenants may be reinstated after prolonged subsidy suspensions, however it suggests legal referrals for tenants with HQS suspensions.
F. Project Based Section 8 Subsidy recertification (HUD Handbook 4350.3)
Recertification Notices
Landlord must provide the tenant with four notices prior to recerti-fication. 1) Initial Notice at annual recertification; 2) First Remind-er Notice at least 120 days prior to recertification date; 3) Second Reminder Notice within 30 days if the tenant fails to respond to the first reminder notice; 4) Third Reminder Notice: more than 60 days prior to recertification date. Handbook, Ch. 7.
All three notices must (a) refer to the model lease and the tenant’s obligation to recertify annually; (b) state the name of a staff person to contact about a recertification interview and how the contact should be made; (c) the location, days, and hours staff are available; (d) list the information the tenant must bring to the inter-view; (e) state the cut-off date for providing the information;
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(f) state that a late recertification will be processed but the tenant will not have notice of any rent increase; and (g) if the tenant doesn’t respond by the annual recertification date she will be responsible for the market rent. Id.
Prior to terminating assistance, the owner should give a notice stating (a) the date the assistance will terminate; (b) the reason for terminating assistance; (c) the amount of rent the tenant will be required to pay; (d) notification that failure to pay may result in the termination of tenancy; and (e) the right to request a grievance. Handbook, Ch. 8, Sec. 6. This notice may be combined with the third reminder notice.
Project based Section 8 Landlord noncompliance with notice requirements bars collection of market rent:
Lambert Houses Redevelopment Co. v. Jobi, 43 Misc.3d 1227(A) (Civ. Ct. Bx Co. 2014); Lambert Houses Redevelopment Co. v. Huff, 35 Misc.3d 1215(A), 951 N.Y.S.2d 86 (Civ. Ct. Bx Co. 2012); Starrett City, Inc. v. Brownlee, 22 Misc.3d 38, 874 N.Y.S.2d 663 (App. Term 2nd & 11th Jud Dists 2008) (no rent amount, name of staff person); Bedford Gardens v. Rosenberg, N.Y.L.J. March 27, 1998, p.31 c.2 (App. Term 2d & 11th Jud. Dists) (improper notice mandates dismissal of nonpayment proceeding); Terrace 100, L.P. v. Holly, 28 Misc.3d 1208(A) (Dist. Ct. Nassau Co. 2010); Diego Beekman MHA HDFC v. Owens, 29 Misc.3d 1226(A) (Civ. Ct. Bx Co. 2010) (third notice didn’t specify rent amount, service improper); Clinton Towers Housing Co. Inc. v. Ryan, N.Y.L.J., 26 Misc.3d 1229(A), 907 N.Y.S.2d 436 (Civ. Ct. N.Y. Co. 2010); Park Lane Residences, L.P. v. Boose, 26 Misc.3d 1233(A) (Dist. Ct. Nassau Co. 2010); Lower East Side I Assoc. v. Estevez, 6 Misc.3d 632 (Civ. Ct. NY Co. 2004) (failure to provide such information as office address, office hours and contact person required dismissal of this proceeding); Goldstein v. Bush, N.Y.L.J. October 31, 2001, p.17 (Civ. Ct. Kings Co.); D.U. Third Realty Co. v. Murphy-Young, N.Y.L.J. March 15, 1995, p.28, c.5 (Civ. Co. Kings Co.).
G. Project based Section 8 subsidy termination
Termination of Project based Section 8 Tenancies:
Termination of tenancies in HUD Multifamily Housing is gov-erned by the regulations at 24 CFR Part 247, except that certain project-based Section 8 developments are excluded from Part 247 under § 247.2, definition of “subsidized project.” The excluded devel-opments are those that have direct subsidy contracts under Parts 880 (New Construction), Part 881(Substantial Rehabilitation); and Parts 883 and 884 (“set-aside” contracts for developments build under state-agency financing or rural housing programs of the USDA). Cross-references in Parts 881 and 883 now incorporate Part 880
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Subpart F, which includes the termination section, Thus, the appli-cable termination regulation is § 880.607. See § 881.601; and §883.701. Terminations from housing built in rural areas under the USDA “Rural Housing” program Section 8 are covered in § 884.216 and by the USDA regulations and guidebooks.
Landlords may terminate tenancies for “material noncompli-ance with the lease” or for fraud. They must serve a ten day termi-nation notice. Handbook, Ch. 8-13(B)(2). See, Sumet I Associates, L.P. v. Irizarry,33 Misc.3d 51, 933 N.Y.S.2d 799 (App. Term 2nd, 11th & 13th Jud. Dists 2011) (single graffiti incident insufficient for tenancy termination)
Eviction proceedings are not the proper forum for resolving recertification errors that do not rise to the level of fraud. Errors in recertification may result in a termination or suspension of subsidy, but are not grounds for termination of the tenancy. Remeeder HDFC v. Robertson, 16 Misc.3d 11133(A), 847 N.Y.S.2d 904 (Civ. Ct. Kings County 2007). See also, Handbook, Ch. 8-17, distin-guishing tenant “error” from fraud.
Landlord must possess evidence that misrepresentation was intentional and must comply with all Handbook provisions regard-ing notice and investigation. Henry Phipps Plaza South Associates Ltd., Partnership v. Quijano, 45 Misc.3d 12 (App. Term 1st Dep’t) (majority finds grounds for termination; dissent finds violation of HUD procedure) Southeast Grand St. Guild, H.D.F.C., Inc. v. Hol-land, 27 Misc.3d 809, 897 N.Y.S.2d 869 (Civ. Ct. N.Y. Co. 2010); Kingsbridge Court Assoc., L.P. v. Hamlette, 25 Misc.3d 1238(A), 906 N.Y.S.2d 773 ( Civ. Ct Bx. Co.. 2009).
Drug-Related Evictions (Handbook, Ch. 8-14):Under Rucker and the Anti-Drug Abuse Act of 1988, a single instance of drug-related criminal activity committed by a guest or household mem-ber can be cause for eviction, even if that activity is restricted to personal use. The Rucker no fault standard can apply to project based Section 8 where the tenant’s lease contains a clause similar to that in Rucker. B&L Associates v. Wakefield, 6 Misc.3d 388, 785 N.Y.S.2d 681 (Civ. Ct. Kings Co. 2004) (also finding tenant’s claims of ignorance were incredible); Jamie’s Place I LLC v. Reyes, 25 Misc.3d 1234(A) (Civ. Ct. N.Y. Co. 2009). See also, Oakwood Plaza Apartments v. Smith, 352 N.J. Super 467, 473 (NJ Super 2002) (reasoning of Rucker applies to project based Section 8). Compare, Maria Estela I Associates v. Camareno, Index No., L&T 42595/2005 (Bx Co. Civ. Ct., Aug. 16 2006) (not reported but
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available in housing advocates’ materials on probono.net) (dismiss-ing federal drug claims where tenant’s lease did not contain provi-sions stating that drug-related conduct would be cause for eviction.)
However, landlords are still authorized to use discretion in applying Rucker, and courts may review their decision for abuse of discretion. Hampton Houses v. Smith, N.Y.L.J March 13, 2003, p. 23, c. 2 (tenant is “partially blind, nearly deaf, has a serious heart condition, is not ambulatory, has diabetes, is on dialysis and needs a home-care attendant.”) Cf., Yancey v. New York City Housing Authority, 23 Misc.3d 740, 879 N.Y.S.2d 661 (Sup. Ct. N.Y. Co. 2009) (NYCHA must exercise discretion).
II. THE SENIOR CITIZEN RENT INCREASE EXEMPTION (SCRIE) AND DISABILITY RENT INCREASE EXEMPTION (DRIE) NYC RENT FREEZE PROGRAMS
A. How does SCRIE and DRIE freeze rent for the elderly and disabled?
SCRIE and DRIE eligible tenants have the difference between their frozen rent share and the actual rent they would be responsible for paying, covered by a real estate property tax credit which is directly applied to the property owner’s real estate tax account in a tax abatement credit or “TAC”. Tenants do not need the permission of their Landlords to participate in the rent freeze program and Land-lords must accept the tax credit as payment for the increases.
The SCRIE and DRIE programs are authorized by Sections 467-b and 467-c of the New York State Real Property Tax Law (“RPTL”) and established by Chapter 4 (Section 26-405, NY City Rent Con-trol), Chapter 5 (Section 26-509 NY City Rent Stabilization) and Chapter 7 (NYC Admin. Code Sections 26-601 et seq. NYC Rent Increase Exemption for Low Income Elderly and Disabled Persons) of Title 26 of the Administrative Code of the City of New York.
B. SCRIE Eligibility
To be eligible for the SCRIE program administered by the NYC Dep’t of Finance, you must:
- be 62 years or older;
- have a combined household income of $50,000.00 annually or less;
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- spend more than one third of household income on rent and
- be the head of household named on the lease/rent order or have been granted succession rights in a rent-controlled, rent stabilized or rent regulated hotel apartment (“SRO”).
To be eligible for the SCRIE program currently administered by the NYC Division of Housing Preservation and Development (“HPD”) you (or your spouse) must:
- be 62 years or older;
- have a combined household income of $50,000.00 annually or less;
- spend more than one third of household income on rent and
- be the head of household in City or State Limited Profit, Limited Dividend, Redevelopment, Housing Development Fund Corpora-tion or 213 Cooperative Housing Companies.
C. DRIE Eligibility
To be eligible for the DRIE program currently administered by the NYC Dep’t of Finance, you (or your spouse) must:
- be 62 years or older;
- have a combined household income of $50,000.00 annually or less;
- spend more than one third of household income on rent and
- be the head of household in an apartment located in a building where the mortgage was federally insured under Section 213 of the National Housing Act (coop), owned by a Mitchell-Lama development, Limited Dividend housing company, Redevelopment Company or Housing Development Fund Corporation (HDFC) incorporated under New York State’s Private Housing Finance Law;
- have been awarded either:
- Federal Supplemental Security Income (SSI);
- Federal Social Security Disability Insurance (SSD);
- U.S. Dep’t of Veterans Affairs disability pension or com-pensation; or
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- Disability-related Medicaid if the applicant has received SSI or SSD in the past
D. What counts towards income?
For SCRIE/DRIE eligibility, the total household annual income from the year prior to application will be examined. Both taxable and non-taxable income will be used to determine eligibility, however federal, state and local taxes, as well as Social Security taxes are deducted.
Not deducted from income are medical expenses, Medicare pre-miums and capital or business losses.
Gifts, inheritances and other assets are not income, but income generated from assets like an IRA/Annuity, capital gains, net busi-ness income, alimony, child support, non-personal injury settlements, other misc income that generates a 1099 form are income sources.
Financial assistance from family and friends can count as income depending on the circumstances.
Monthly amount of income received from a roommate counts as income, but not the roommate’s income itself.
E. How is the frozen rent determined?
At initial application, if the rent increase results in the tenant pay-ing more than one third of their income in rent, then the agency will freeze the rent at either the previous rent or the actual one third of income amount whichever is higher.
At initial application, a Major Capital Improvement increase order (“MCI” like a new boiler or intercom system) that is 90 days old or less, will be covered. Tenants already in receipt of SCRIE/ DRIE who get an MCI order before they are due to recertify for SCRIE/DRIE should immediately send the order to the agency for an interim adjustment to the tax abatement credit (TAC Adjustment Application).
Annual or biannual rent increases will be covered by the SCRIE/ DRIE renewal/recertification process.
If the tenant pays a “preferential rent”, lower than the legal rent and that is also durational (for the life of the tenancy) then the agency will freeze the rent at the lower preferential rent and increases to the preferential rent will be covered.
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F. What increases are not covered?
If the preferential rent is not durational, then the agency will freeze the rent at the higher legal rent and cover increases to the legal rent only. The agency will NOT cover the difference when a prefer-ential rent expires and jumps to the higher legal rent.
In this situation where the preferential rent is for the lease term only, the amount of the TAC that represents the increase to the legal rent however, will be applied to reduce the tenants’ frozen preferen-tial rent share where “…once landlord decided to continue to offer a preferential rent on the renewal lease, the practice of deducting the SCRIE abatement from the preferential rent was a ‘term and condi-tion’ of the parties’ agreement that had to be continued”. 83rd Street Apt Co., LLC v. Shaustyuk, 50 Misc.3d 110; 27 NYS2d 312 (App. Term 2nd, 11th and 13th Judicial Dist., 2015).
Individual Apartment Improvements (“IAIs” like brand new kitchen cabinets, renovations not repairs) that result in 1/40th, 1/60th increases to the rent, will NOT be covered by SCRIE/DRIE.
Surcharges for air conditioners, washing machines and increases in Security deposits will NOT be covered by SCRIE/DRIE.
G. Renewal/Recertification for SCRIE/DRIE
Sixty (60) days before the SCRIE/DRIE benefit period ends, the agency will send a renewal application. If a recipient has not received a renewal application period as expected, they can call 311 to request that it be sent and/or they can use the renewal application form on the DOF website. (Call HPD for HPD administered SCRIE).
All income documents for household for the prior year must be submitted along with either renewal lease or MBR or Fuel Cost Adjustment order for Rent Controlled tenants.
If the tenant’s Landlord has not given them a renewal lease and/or has not returned a counter-signed lease, then submit a “Certi-fication by Renewal Applicant without a Lease” form. The Agency will also require the tenant to file a complaint to DHCR about the failure to receive renewal lease. Though the SCRIE/DRIE can be renewed in this way, the TAC will not be increased to the LL until the countersigned lease is sent to the Agency.
There is a six month grace period after the benefit end date, to allow for recertification process to be finalized. During this period, the Landlord may not sue for the unpaid TAC. Rent exemption remains in effect during six month period subsequent to rent exemption order’s
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expiration. NYC Rent and Rehab Law (Rent Control) §26-405m (6); RSL §26- 509(b)(6).
“No increase in maximum rent shall be collectible from a tenant to whom there has been granted a rent increase exemption order, which became effective prior to the effective date of the increase, except as provided in such exemption order or as modified by subse-quent exemption order. 9NYCRR §2202.20 (NYC Rent and Eviction Regulations); See also, NYC Rent and Rehab Law (Rent Control) §26-405m(1); RSL§26-509(b)(1). The rent exemption order shall provide that the LL may not collect from the tenant to whom it is issued rent at a rate in excess of either one-third of the aggregate dis-posable income, or the rent in effect immediately preceding the eligi-bility date whichever is greater. NYC Rent and Rehab Law (Rent Control) §26-405m (3); RSL §26-509(b)(3).
After 30 days from the renewal application if the tenant does not respond, there is a failure to renew reminder notice sent to the tenant. After 90 days with no response from the tenant, a revocation notice goes out.
H. Termination of benefit/Extension of time to Renew/recertify
If the SCRIE/ DRIE benefit is terminated or revoked, a renewal application will go out to the tenant. The tenant may a) appeal admin-istratively within 60 days if the revocation is improper; or
b) if SCRIE/DRIE is administered by the NYC DOF the tenant may seek an extension of time for renewal/reinstatement for “good cause” or “extraordinary medical circumstance”. 19 RCNY § 52-01. This rule applies to SCRIE and DRIE benefits administered by NYC DOF only. This is a recently promulgated rule by the Commissioner of Finance intended to comply with the federal Americans with Disabilities Act (“ADA”). If a disability prevented the applicant from complying with the renewal application deadline, the applicant must file a “Request for Accommodation” (“RAR”) form and submit it to the agency EEO officer with supporting medical doc-umentation for a decision on extension/reinstatement.
Similar arguments may be made to seek a reasonable accommo-dation/reinstatement of HPD administered SCRIE when the termina-tion/revocation was due to a need for assistance in the recertification process due to a participant’s disability or infirmity.
As of this writing, a bill is pending for signature on Governor Cumo’s desk (having passed the State Legislature) that would allow
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for a SCRIE/DRIE recipient who loses eligibility because of a “non-recurring” item of income which causes them to be ineligible (over $50K/yr.) to re-apply after a year and be eligible to return to their previously frozen rent, instead of being treated as an initial applicant. A recipient is limited to three such rent exemption orders calculated in this manner. This would amend Section 467-b of the NYS Real Property Tax Law (“RPTL”).
Similarly, a second bill awaiting the Governor’s signature as of this writing would allow a SCRIE/DRIE recipient who has received the benefit for five consecutive lease terms, to use a short form renewal form. Forms available on the DOF website or by calling “311”.
I. Succession/Benefit Takeover to SCRIE/DRIE – Permanent Loss of Income to Household
Should the SCRIE/DRIE head of household die or permanently leave the household, the remaining spouse or family member may be eligible both to 1) take over the SCRIE/DRIE benefit so that the frozen share remains the same or 2) have the frozen tenant share lowered if there is a permanent decrease of 20% or more in combined household income.
A benefit takeover application must be submitted within six months of the SCRIE/DRIE beneficiary’s death or permanent move OR within 90 days of a notice from the NYC Department of Finance that they have learned of the tenant’s death, whichever is later.
To be found eligible, the remaining family member must have 1) been listed on the departed tenant’s SCRIE/DRIE household com-position; 2) must qualify for the program; 3) must be the legal tenant or be granted succession.
III. HIV/AIDS SERVICES ADMINISTRATION - HASA
The HIV/AIDS Services Administration (HASA) is an agency within the New York City Human Resources Administration (HRA). HASA pro-vides specialized intake, needs assessment, benefits and services for peo-ple living with AIDS or HIV-related illness in New York City. Recently, the requirement that someone be symptomatic or carry an AIDS diag-nosis to qualify for HASA was eliminated. HASA and the services it provides are mandated by law (NYC Administrative Code §§ 21-126, 21-127, 21-128). See Appendix p. 1. HASA clients are entitled to receive intensive case management. Caseloads are to be limited to a maximum of 34 cases per caseworker. In family units, the maximum caseload is 25.
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Clients may apply for public assistance and related benefits, as well as housing and homecare services, through HASA. All paperwork is pro-cessed and benefits issued at the HASA site. The rules and regulations of regular public assistance apply to HASA clients unless specifically superseded by HASA rules. The enforcement of HASA’s obligations under the NYC Administrative Code and the Americans with Disabilities Act (ADA) was extensively addressed in Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 216 (E.D.N.Y. 2000); Henrietta D.v. Bloomberg, 331 F.3d 261 (2003).
A. SERVICES AND FINANCIAL BENEFITS PROVIDED BY HASA:
Assistance in obtaining public assistance benefits from Income Support, including ongoing cash assistance, rental assistance, food stamps and Medicaid.
Rent enhancement: all HASA clients are automatically eligible for rent allowance above the standard public assistance levels as part of their standard of need. See below for further information.
Nutrition and transportation (N&T) allowance: $193 per month for each HASA-eligible person on the budget. Clients must submit separate medical documentation of HASA eligibility for each person to get allowance. N&T is considered part of standard of need.
Home care: 1. Chore services: cleaning, laundry, meal preparation and shopping 2. Personal care services: grooming, dressing, washing, bathing, feeding, toileting 4. Home care applications and assessments are completed by caseworkers and then submitted to the Bureau of Medical Review who then submits it to the Visiting Nurse Service (VNS) or other vendor.
Homemaker services through the Administration for Children’s Ser-vices (ACS) provide assistance caring for children.
Housing: HASA clients are entitled to medically appropriate transi-tional and permanent housing, including individual refrigerated food and medicine storage and adequate, private bathroom facilities. Types of housing services include the following: 1. Eviction prevention, if possible; 2. Re-housing; a. If qualified, HASA clients can receive 1st month’s rent, security deposit vouchers, broker’s fee, moving expenses and/or furniture grant.
HASA Housing Placement Unit referrals to scatter site programs (supportive housing provided by social service agencies), supportive
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congregate housing, and New York City Housing Authority (NYCHA) apartments. Emergency SRO hotel placements for homeless clients.
Home or hospital visits must be made by HASA staff whenever necessary to enable HASA clients to establish or maintain eligibility for benefits and services.
Additional requirements of Local Law 49 (NYC Administrative Code §§ 21- 126, 21-127, 21-128)
Time Frames for Services Where the law does not specify a time period for an eligible person to begin receiving benefits, the service must be provided within 20 business days, which translates into roughly 30 calendar days.
Case Closure Protocol HASA may not close a case except under the following circumstances: a. the recipient cannot be located for recer-tification after a “reasonable, good faith” search for at least 90 days, including written notice sent certified mail, return receipt requested to the last known address; or b. the recipient is no longer eligible for services; or c. the recipient is deceased.
Receipt Requirement Clients who request any benefit or service should receive a receipt that lists the date and type of request, any documentation given to caseworker, and any documentation necessary to complete the application.
HASA Clients Are Exempt From EVR (Eligibility Verification Review) Requirements, pursuant to Hernandez v. Barrios-Paoli, 93 NY2d 781 (1999).
HASA Client Bill of Rights. See Appendix p. 8. HASA must con-spicuously post a bill of rights for persons with clinical/symptomatic HIV illness or AIDS. The bill of rights must be updated annually and must include an explanation of available benefits and services, time-tables for the provision of benefits and services, the right to examine one’s file and to contest information contained therein, right to a home or hospital visit, and procedures for challenging agency deci-sions or discriminatory acts.
B. HASA ELIGIBILITY AND APPLICATIONS
HASA Eligibility: Financial: must be Medicaid-eligible (includes spend down). Medical: will be eligible if applicant has ever had the following: a. diagnosis of AIDS, as defined by the CDC, OR b. HIV+ with a symptom on the State AIDS Institute list.
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Application Process 1. The Service Line is the central intake point for all applications for HASA. A client may apply to the Service Line directly or be referred by a case manager, social worker, medical provider, or other advocate. 2. Mail or fax documentation of medical diagnosis with a cover letter to the Service Line. Always call to make sure it was received. a. Fax: (212) 971-0820 b. Mail: HASA Service Line 400 8th Avenue, 2nd Floor New York, New York 10001 c. Phone: (212) 971-0626
Documentation of the client’s medical diagnosis 1. HASA has requested submission of the following documents: a. Request for Program Admission for HASA Services (attached at Appendix p. 14); b. HIPAA Compliant “Authorization to Release Confidential HIV/ AIDS Information” and “Authorization for Release of Health Infor-mation Pursuant to HIPAA” (attached at Appendix pp. 15, 17); c. If applicant is not already receiving SSI or SSD: Social Security Administration (SSA) form “Medical Report on an Adult/Child with Allegation of Human Immunodeficiency Virus (HIV) Infection” (Form SSA 04814-F5 for adults and SSA 04815-F6 for children) completed by medical professional and Authorization for Source to Release Information to the Social Security Administration (attached at Appendix p. 19). d. If home care is required, submit an M11q (attached at Appendix p.)
It is unlikely that HASA could legally support a denial of ser-vices based on the use of a different form of medical documentation. Acceptable forms of proof have traditionally included: a. M-11q (attached at Appendix p. 27) form signed by a doctor; b. Diagnosis, signed by a doctor on letterhead; c. ADAP application signed by a doctor; or d. Comprehensive Medical Summary for person recently released from prison. D. Make sure the doctor fills out the form cor-rectly and puts all the necessary information on it for HASA eligibil-ity. Write to the doctor if necessary explaining what should be on the form. E. Follow up with the Service Line to find out whether the case was accepted and to which center it was assigned. Assignment of a case manager is prioritized according to need. The following groups are entitled to immediate assignment of a case manager: 1. homeless; 2. homebound; or 3. facing eviction (must have a dispossess or mar-shal’s notice). F. Local Law 49 requires HASA to provide clients with intensive case management. Pursuant to the law, each client should be assigned to a caseworker who has no more than 34 individ-ual cases, or 25 family cases. G. Clients with children under 18 in the household are assigned to a caseworker in a family unit.
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C. MEETING IMMEDIATE NEEDS:
Client must apply for ongoing public assistance to get pre-investigation grant and expedited Food Stamps to meet immediate needs. Persons with a HASA case manager should be instructed to tell the case manager that they have no food or income; it helps if advocate puts request in writing. Case managers must process requests for expedited food stamps and immediate needs grants for clients. HASA offices also have “sub-impress” (cash) on site, which is avail-able to clients with immediate needs on a discretionary basis.
D. EMERGENCY HOUSING NEEDS
Homeless HASA clients are eligible for an immediate emergency SRO hotel placement. HASA is required to provide same day place-ment. See Hanna v.Turner, 735 N.Y.S.2d 513, 289 A.D.2d 182 (1st Dep’t 2001).
Procedure for homeless HASA applicants 1. Applicants wait at the Service Line office (400 8th Avenue) until placement is found. 2. Applicant must meet with a Housing Liaison, who will conduct a homeless diversion interview to certify that the applicant is homeless (make sure they do not have any other housing options). 3. HASA will not start to search for available SRO room until client is at Service Line office to ensure room does not go unoccupied. 4. If extenuating circumstances exist, advocates can FAX request in and advocate by phone for client to be referred directly. Example: client ready to be released from hospital and has no home; client cannot leave hospital until SRO placement is definite because client will lose the bed. 5. HASA must place all clients who arrive at the Service Line by 5:00 pm on that same day.
Procedure for existing HASA clients who become homeless: 1. Client goes to caseworker at her/his assigned HASA center to wait for placement. Generally, HASA will not search for available SRO placements until the client is at the caseworker’s office. If extenuating circumstances exist, advocates may call the Emergency Placement Unit and make a request on behalf of the client. 2. Caseworker submits request to Emergency Placement Unit for SRO placement. 3. Caseworker should give client a letter of introduction and infor-mation about their placement (directions to the facility, who to call, what time to arrive, etc.).
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Medically inappropriate conditions in SROs: Pursuant to Local Law 49, all HASA clients are entitled to medically appropriate housing, which includes individual refrigerated food and medicine storage and adequate, private bathroom facilities. To report unhealthy or dangerous conditions in an SRO, call John Ruscillo at (212) 620-9830 or Deborah McKeever at (212) 620-4666. E. If client is on PA and living in a hotel with no cooking facilities or is living on the street, then the client is eligible for restaurant allowance of $64.00 monthly in addition to the regular grant.
Emergency Moving Expenses: As a result of a lawsuit, Hernandez v. Hammons, HASA is required to process requests for brokers’ fees, security deposits and moving expenses for clients with AIDS or symptomatic HIV illness according to strict time frames. See Hernan-dez decision at Appendix p. 31. 1.
No Immediate Need: HASA must determine eligibility within 30 days of receiving a completed request form. 2. Immediate Need Cases: If client has an emergency situation, HASA must prepare and submit the necessary paperwork within 24 hours and must assess eli-gibility within the next 24 hours. HASA is required to issue checks by the next business day, for a total of 72 hours. Emergency situa-tions include: a. no shelter; b. notice of dispossess; c. 72 hour notice of eviction; or d. lacking items necessary to ensure health or safety.
E. RENTAL ASSISTANCE FOR HASA CLIENTS
Rent Enhancement (Enhanced Shelter Allowance) 1. All New York State public assistance recipients who have AIDS, or who are HIV+ and have certain symptoms, are eligible to receive an increased monthly rent grant through regular public assistance centers. 18 NYCRR 352.3(k). See Appendix p. 33. 2. In New York City, all HASA clients are automatically eligible for rent enhancement as part of their standard of need.
Amount of Enhanced Rent Allowance a. Up to $480 per month for the first HASA-eligible person in the household. b. Up to $330 per month for each additional member of the household. c. The rent enhancement grant never exceeds the client’s actual monthly rent. Clients may apply for an “exception to policy” if their rent is higher than the allowance amounts, or if they have rent arrears above those amounts. 5. SNAP (Food Stamps) should not be affected by receipt of enhanced rent.
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Rental amounts exceeding statewide allowance: Applying for “Case By Case Financial Assessment” (CBCFA) 1. HASA recog-nizes that private rents in NYC far exceed the statewide monthly enhanced rental allowance. HASA clients can submit a “case by case financial assessment” (CBCFA) if their rent is higher than these amounts, or if they have arrears for rent higher than those amounts and have the future ability to pay the rent. If the CBCFA is approved, the client will receive a monthly rent grant of more than $480. (How-ever, the enhanced rent will never be higher than the client’s actual monthly rent.) 2. Whether HASA will approve a rent above the statewide level is discretionary and is not controlled by statute or regulation. HASA relies on many factors to determine whether an apartment will be approved, including the length of the lease, habita-bility (absence of serious violations), the reason for the move, and whether the person is coming from an SRO. HASA uses the amounts below as a guideline, but there is no mandate for HASA to approve rents at these amounts. Studio $480 - $1000 1 BR $810 - $1100 2 BR $1,140 - $1,250 3 BR $1,470 - $1,500 4 BR $1,590 - $1,650
PRACTICE TIP: Advocates can help get rent or arrears approved by submitting a letter of support detailing the reasons why a particu-lar apartment is worth the rental amount. In addition to the factors discussed above, consider whether the apartment is rent stabilized; proximity to client’s doctors, family, and support network; length of time in the apartment; ability to maintain companion animals; and any other justifications for approving the apartment. Larger house-holds may benefit from the $480 plus $330 formula contained in 18 NYCRR 352.3(k) and those standards should apply where they are more beneficial.
Restrictions on Rental Assistance: Demand for Financial Man-agement 1. Before an exception to policy for emergency rent arrears grant is approved, HASA may require that some clients obtain finan-cial management in order to ensure client’s future ability to pay. HASA, however, does not provide financial management. Therefore, clients for whom HASA requires financial management/representative payee must be referred to GMHC financial management services. (Only HASA can make this referral.) 2. Other acceptable forms of financial management also may include: a. Direct deposit of SSI/ SSD checks into bank account. Clients must first have an open bank account at an accredited bank. Direct deposit forms can be found at any local Social Security office. Some banks can also provide direct
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transfer of monthly rent from the client’s bank account to the land-lord’s bank account. b. Representative payee for SSI/SSD checks. This designated person receives the monthly SSI/SSD check on behalf of recipient, and is responsible to pay the client’s monthly rent and utilities. Contact any local Social Security office to set this up. c. Adult Protective Services (APS) is a city agency that provides financial management services. APS generally denies HASA clients financial management because they argue that HASA should be providing this service as part of comprehensive case management.
F. SCATTER SITE HOUSING FOR HASA CLIENTS
HASA places clients in two types of permanent, supportive hous-ing programs:
1. Scatter site: Clients placed in apartments located throughout the community and ongoing social services are provided by contracted housing providers. Lease is in housing program’s name and client pays “program fees” of 30% of non-HASA income to the housing provider.
2. Congregate housing: Housing is provided in a single location with social services on-site. Client pays 30% of non-HASA income to the housing provider.
In order to be eligible for HASA-contracted supportive housing, a HASA client must be using substances or have a history of sub-stance use or have a mental illness or be chronically homeless (more than one placement in HASA’s emergency housing during the course of one year).
Referral and Placement 1. For HASA contracted supportive hous-ing, the HASA case manager must complete the HASA Housing Application, including a behavioral assessment, which is submitted to the Housing Unit. See Appendix p. 35 for referral and placement pro-cedures. 2. For non-HASA contracted supportive housing (primarily HOPWA-funded programs administered by the DOHMH) the client can be referred directly by the HASA case manager. For NY/NY III housing, the client must be referred by HASA’s Comprehensive Health Assessment Team (CHAT).
Housing Opportunities for People With AIDS (HOPWA) HASA receives federal HOPWA funds but does not clearly disclose how these funds are used. In any legal proceeding involving HASA-contracted scatter site housing, an attorney should seek to establish that
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HOPWA funds were received by the housing provider, triggering the protections of 42 USC § 12901, et. seq., and 24 CFR 547, et. seq. Under the statute, rental assistance is to be provided as it is in Section 8, to the extent practicable (generally 30% of the tenant’s income).
Terminations from supported housing: Clients cannot legally be terminated or evicted from HASA-contracted supported housing pro-grams unless the program follows a three step case conference proce-dure. Advocates should actively ensure this procedure is followed when a client is threatened with eviction from supported housing.
Budgeting Issues: “Ghost” Payments 1. For their own reimburse-ment purposes, HASA now includes scatter site costs in the rental portion of a client’s budget. These shelter amounts are often far in excess of the actual rent and how they are actually calculated is unknown. The amounts appear as electronic payments but how they are actually disbursed is also unknown. For these reasons, they are known to advocates as “ghost” payments.
Impact (i) Family budgeting: Maintaining ghost payments on the budget prevents the HASA client from becoming invisible if she is an SSI recipient, preventing other household members from receiving additional F&O.
(ii) Interim Assistance: When HASA clients are accepted to SSI, their retroactive benefits are sent to HRA as reimbursement for bene-fits received while the client was waiting for SSI approval (known as interim assistance). HASA was including the full ghost payments in their calculations for reimbursement. In Nesby v. Hansell, 69 A.D.3d 469, 894 N.Y.S.2d 377 (1st Dep’t 2010), the Court held that HASA and OTDA had not established that the payments recouped from a HASA client (which were scatter site ghost payments) were exclu-sively state and locally funded.
(iii) Recoupments: Clients with no income other than public assis-tance could have an ongoing 5% recoupment calculated from a standard of need that includes the ghost payment.
(iv) Medicaid: On the positive side, recipients of SSD and other non SSI income continue to have open PA cases due to ghost pay-ments, allowing them to maintain their PA-related Medicaid eligibility.
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Housing Court 101
Kamilla Sjödin
Urban Justice Center
Submitted by: Kamilla Sjödin
Urban Justice Center
Attachments a–c, f–i: © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Reprinted from WestlawNext with the permission of Thomson Reuters.
If you find this article helpful, you can learn more about the subject by going to www.pli.edu to view the on demand program or segment for which it was written.
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Housing Court was created in 1973 pursuant to the Civil Court Act § 110. According to the New York Civil Court website,
The establishment of a Housing Part, with Part specific hearing officers, now called Housing Court Judges, was initially started in 1973, with ten judges. We now have 50 Housing Court Judges. These parts were originally staffed by a judge and a court officer, but now also have one or two court attorneys, clerks and interpreters, servicing many languages. Up until the Chief Judge Judith Kaye’s Housing Initiative in 1997, the Housing Part operated with a master calendar system. Since 1997, the parts have been divided into resolution (or conference) and trial parts, with cases being assigned to them randomly from the clerk’s office.
(http://www.courts.state.ny.us/courts/nyc/housing/civilhistory.shtml [last visited 8/1/16].)
According the Court website,
The Civil Court is the largest civil jurisdiction court, by volume, in the United States. Our Housing Part, also the largest of its type in the Country, has averaged about 350,000 filings a year for the past 20 years, while our Small Claims Part has averaged about 50,000 cases during the past two decades.
(http://www.courts.state.ny.us/courts/nyc/housing/civilhistory.shtml [last visited 8/1/16].)
For further history of the creation of the Housing Court watch its 40th Anniversary Video at:
https://www.youtube.com/watch?v=_NI1SYscS4U&feature=youtu.be. ([Last visited 8/1/16].)
Although improvements have been made over the last decades, tenants in Housing Court today still face similar problems to those faced by tenants before its creation. To address some of these inequities, there is currently a movement seeking the Right to Counsel in Housing Court. For more information, see the Right to Counsel Coalition’s website: http:// www.righttocounselnyc.org/ [last visited 8/1/16). The Coalition reports the following statistics:
65% of New Yorkers are Renters
97% of all cases in Housing Court are initiated by landlords
In 2013, 28,848 families were evicted in NYC and at least half of them would not have been evicted if they had an attorney
90% of landlords have attorneys in Housing Court while 90% of tenants do not
57,000 people are in NYC’s shelter system
The #1 cause of homelessness is eviction
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I. OVERVIEW OF TYPES OF CASES
Housing Court is a court of limited jurisdiction and the Court can only hear the following types of cases: a) nonpayments, where the tenant alleg-edly fails to pay her rent; b) holdovers, where there is an alleged breach of lease or common law nuisance; c) HP (repairs) cases; d) illegal evictions; e) harassment cases; and f) Article 7A proceedings (of RPAPL). Notably, ejectment actions are heard by Supreme Court.
Article 7 of the RPAPL governs cases brought in Housing Court. Nonpayment cases can only be maintained if a landlord-tenant rela-
tionship exists pursuant to RPAPL § 711. Some proceedings may be maintained in Housing Court even if no
landlord tenant relationship exists, such as licensee proceedings under RPAPL § 713.
HP cases and harassment cases are brought by Order to Show Cause and the Department of Housing Preservation and Development is a necessary party.
Note that legal fees can only be collected if the lease or a statute provides for them. Under RPL §234, if a lease provides that a landlord can collect legal fees in a given proceeding, tenants can automatically also seek fees upon prevailing.
All cases are first calendared in a resolution part. If settlement, dis-missal, or summary judgment cannot be reached, the case will be sent out to the expediter, or Part X. Thereafter, the case will be sent to a trial part that is selected based on which judge is available at any given time. In some boroughs it takes longer to be seen by a trial judge once a case is sent to Part X than in others.
II. PROCEDURAL ISSUES
All nonpayment and holdover cases, unless commenced immediately after the expiration of a lease, require a predicate notice. In nonpayments, the predicate notice is a rent demand, and in holdovers, the predicate notice could be a Notice to Terminate, a Notice to Quit, or a Notice to Cure. Thereafter, nonpayments and holdovers are commenced with a notice of petition and petition.
Nonpayments and holdovers must be served in accordance with law.
A. Personal Service
B. Substitute Service
C. Conspicuous Place Service (“Nail and Mail”)
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Cases commenced by Order to Show Cause, such as HPs, har-assment, or illegal eviction cases must be served in accordance with what the Court orders.
Defects in the service of the predicate notices, as well as in the notice of petition and petition, require dismissal.
Defects in the predicate notices or the notice of petition and petition may require dismissal.
Under RPAP § 741, the petition must
1. State the interest of the petitioner in the premises from which removal is sought.
2. State the respondent’s interest in the premises and his relationship to petitioner with regard thereto.
3. Describe the premises from which removal is sought.
4. State the facts upon which the special proceeding is based.
5. State the relief sought. The relief may include a judgment for rent due, and for a period of occupancy during which no rent is due, for the fair value of use and occupancy of the premises if the notice of petition contains a notice that a demand for such a judgment has been made.
(RPAPL § 741.)
III. PREPARING PAPERS, DISCOVERY, CASE PREPARATION
Cases brought in Housing Court are considered special proceedings or summary proceedings. (See NYC Civ. Ct. Act § 204). They are meant to move faster than other cases and are, therefore, subject to Article 4 of the CPLR.
For example, pursuant to CPLR § 406, “Motions in a special pro-ceeding, made before the time at which the petition is noticed to be heard, shall be noticed to be heard at that time.” This means that a motion can be “short served,” for instance the day before a case is noticed to be heard. Some judges will also accept motions that were served and filed the same day as the case is notice to be heard provided that it is done prior to the time the case is notice to be heard. Other judges will not accept “short service” and if faced with the need to serve a motion on short notice, it behooves the litigant to find out if the judge assigned to a particular case will hear such a motion.
Other than serving a demand for a verified bill of particulars, dis-covery is not a right in Housing Court and can only be obtained by
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motion. In order to be granted discover, the movant must show “ample need” for information within the control of the opposing party. In order to determine whether “ample need” exists, Courts must consider the fol-lowing factors:
(1) whether, in the first instance, the petitioner has asserted facts to establish a cause of action. Thus, a fishing expedition utilized by the landlord for the purpose of formulating a cause of action or by the tenant to establish a defense, should never be permitted;
(2) whether there is a need to determine information directly related to the cause of action;
(3) whether the requested disclosure is carefully tailored and is likely to clarify the disputed facts;
(4) whether prejudice will result from the granting of an application for disclosure;
(5) whether the prejudice can be diminished or alleviated by an order fash-ioned by the court for this purpose, e.g., conditioning a grant of a motion for discovery upon the payment of use and occupancy; ordering that all discovery must be done, if at all, within a relatively short time period;
(6) whether the court, in its supervisory role can structure discovery so that pro se tenants, in particular, will be protected and not adversely affected by a landlord’s discovery requests.
(NYU v. Faraks, et. Al., 121 Misc.2d 643, 468 N.Y.S.2d 808 (NY Civ. Ct. 1983).)
IV. DEFENSES TO ALLEGED NON-PAYMENT AND HOLDOVER ACTIONS
In addition to the procedural defenses above, defenses to consider in nonpayment actions include, laches, i.e. whether or not the petitioner prej-udicially delayed brining the proceedings, overcharges, incorrect renal amounts sought, partial payments made, repairs, and checking whether or not the lease allows for legal and/or late fees.
Defenses to consider in holdovers include reviewing whether the allegations are sufficiently plead, failure to state a cause of action, making sure that alleged breach of lease conduct is actually not allowed by the lease, vitiation, i.e. where a landlord accepts rent after alleging that a tenancy has terminated and thereby reinstated the tenancy, and retaliation for asserting a right or making a complaint to a City agency. (See RPL § 223-b.)
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V. SETTLEMENT POSSIBILITIES
The majority of cases in Housing Court settle. Nonpayments usually settle with an agreed amount to pay, time to pay, and repairs. Most unrep-resented tenants settle for a final judgment, which means that if the judg-ment is not paid, the tenant can end up being evicted. It is possible to settle for an agreed upon amount owed, without a final judgment, thereby not risking eviction immediately upon failure to pay the amount owed. Other options include payment plans and/or making payment conditioned upon repairs.
Holdover cases are often settled with probationary agreements, move-out stipulations, or buy-outs.
Nonpayment agreements can be converted to holdovers provided there is consideration for the conversion, such as, perhaps, the waver of any monies alleged owed.
VI. POST SETTLEMENT OR HEARING CONSIDERATIONS
Once a case is settled and a respondent does not comply with its terms, in nonpayemnts and holdovers, a tenant can be served with a Marshal’s Notice of Eviction, which gives the tenants notice that a Marshal may come and lock her out after six business days.
To prevent an eviction at that point, the tenant should go to Housing Court to file an Order to Show Cause seeking more time, for example, to move or come up with monies owed.
Once an HP action is settled, if the respondent (i.e. landlord) does not comply with its terms, the tenant would have to make a motion in court for contempt.
It is likely that any judgments will end up on a tenant’s credit report and that any monies alleged owed that are severed in Housing Court can be sought in Small Claims, Civil, or Supreme Courts. If a tenant satisfies a judgment, it best to move to vacate the judgment with the Housing Court and then provide tenants with information as to how to get the judgment off their credit reports.
Tenants should also be advised that as soon as they are sued in Housing Court, they will likely be placed on a list that landlords may access when tenants apply for new apartments. Tenants are placed on this list even if the suit against them is frivolous or the case does not end up with a judgment against the tenant.
51
8
CPLR Article 4 § 401. Parties § 402. Pleadings § 403. Notice of Petition; Service; Order to Show Cause § 404. Objections in Point of Law § 405. Correction of Defects in Papers Rule 406. Motions § 407. Severance § 408. Disclosure Rule 409. Hearing § 410. Trial Rule 411. Judgment
RPAPL Article 7 § 701. Jurisdiction; Courts; Venue
§ 701. Jurisdiction; Courts; Venue Full Text Document for § 701. Juris-diction; Courts; Venue
§ 711. Grounds Where Landlord-Tenant Relationship Exists
§ 711. Grounds Where Landlord-Tenant Relationship Exists Full Text Document for § 711. Grounds Where Landlord-Tenant Relationship Exists
§ 713. Grounds Where NO Landlord-Tenant Relationship Exists
§ 713. Grounds Where NO Landlord-Tenant Relationship Exists Full Text Document for § 713. Grounds Where NO Landlord-Tenant Relationship Exists
§ 713–a. Special Proceeding for Termination of Adult Home and Resi-dence for Adults Admission Agreements
§ 713–a. Special Proceeding for Termination of Adult Home and Resi-dence for Adults Admission Agreements Full Text Document for § 713–a. Special Proceeding for Termination of Adult Home and Residence for Adults Admission Agreements
§ 715. Grounds and Procedure Where Use or Occupancy is Illegal
§ 715. Grounds and Procedure Where Use or Occupancy is Illegal Full Text Document for § 715. Grounds and Procedure Where Use or Occu-pancy is Illegal
§ 721. Person Who May Maintain Proceeding
52
9
§ 721. Person Who May Maintain Proceeding Full Text Document for § 721. Person Who May Maintain Proceeding
§ 731. Commencement; Notice of Petition
§ 731. Commencement; Notice of Petition Full Text Document for § 731. Commencement; Notice of Petition
§ 732. Special Provisions Applicable in Non-Payment Proceeding if the Rules so Provide
§ 732. Special Provisions Applicable in Non-Payment Proceeding if the Rules so Provide Full Text Document for § 732. Special Provisions Applicable in Non-Payment Proceeding if the Rules so Provide
§ 733. Time of Service; Order to Show Cause
§ 733. Time of Service; Order to Show Cause Full Text Document for § 733. Time of Service; Order to Show Cause
§ 734. Notice of Petition; Service on the Westchester County Department of Social Services
§ 734. Notice of Petition; Service on the Westchester County Department of Social Services Full Text Document for § 734. Notice of Petition; Service on the Westchester County Department of Social Services
§ 735. Manner of Service; Filing; when Service Complete
§ 735. Manner of Service; Filing; when Service Complete Full Text Docu-ment for § 735. Manner of Service; Filing; when Service Complete
§ 741. Contents of Petition
§ 741. Contents of Petition Full Text Document for § 741. Contents of Petition
§ 743. Answer
§ 743. Answer Full Text Document for § 743. Answer
§ 745. Trial
§ 745. Trial Full Text Document for § 745. Trial
§ 746. Stipulations
§ 746. Stipulations Full Text Document for § 746. Stipulations
§ 747. Judgment
§ 747. Judgment Full Text Document for § 747. Judgment
53
10
§ 747–a. Judgments; Stays
§ 747–a. Judgments; Stays Full Text Document for § 747–a. Judgments; Stays
§ 749. Warrant
§ 749. Warrant Full Text Document for § 749. Warrant
§ 751. Stay upon Paying Rent or Giving Undertaking; Discretionary Stay Outside City of New York
§ 751. Stay upon Paying Rent or Giving Undertaking; Discretionary Stay Outside City of New York Full Text Document for § 751. Stay upon Paying Rent or Giving Undertaking; Discretionary Stay Outside City of New York
§ 753. Stay Where Tenant Holds over in Premises Occupied for Dwelling Purposes in City of New York
§ 753. Stay Where Tenant Holds over in Premises Occupied for Dwelling Purposes in City of New York Full Text Document for § 753. Stay Where Tenant Holds over in Premises Occupied for Dwelling Purposes in City of New York
§ 755. Stay of Proceedings or Action for Rent upon Failure to Make Repairs
§ 755. Stay of Proceedings or Action for Rent upon Failure to Make Repairs Full Text Document for § 755. Stay of Proceedings or Action for Rent upon Failure to Make Repairs
§ 756. Stay of Summary Proceedings or Actions for Rent Under Certain Conditions
§ 756. Stay of Summary Proceedings or Actions for Rent Under Certain Conditions Full Text Document for § 756. Stay of Summary Proceed-ings or Actions for Rent Under Certain Conditions
§ 761. Redemption by Lessee
§ 761. Redemption by Lessee Full Text Document for § 761. Redemp-tion by Lessee
§ 763. Redemption by Creditor of Lessee
§ 763. Redemption by Creditor of Lessee Full Text Document for § 763. Redemption by Creditor of Lessee
§ 765. Effect of Redemption upon Lease
54
11
§ 765. Effect of Redemption upon Lease Full Text Document for § 765. Effect of Redemption upon Lease
§ 767. Order of Redemption; Liability of Persons Redeeming
§ 767. Order of Redemption; Liability of Persons Redeeming Full Text Document for § 767. Order of Redemption; Liability of Persons Redeeming
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
NOTES
88
3
Housing Law 101 (PowerPoint slides)
Kamilla Sjödin
Urban Justice Center
If you find this article helpful, you can learn more about the subject by going to www.pli.edu to view the on demand program or segment for which it was written.
89
90
KA
MI
LL
A S
JÖ
DI
N,
ES
Q
HO
US
ING
LA
W 1
01
91
Intr
odu
ctio
n
Hou
sin
g C
ourt
was
cre
ated
in t
he
1970
s th
rou
gh
Civ
il C
ourt
Act
§11
0
Th
e p
urp
ose
was
to
pro
vid
e te
nan
ts w
ith
a f
oru
m t
o ob
tain
rep
airs
an
d la
nd
lord
s to
col
lect
ren
t an
d/o
r ga
in p
osse
ssio
n
92
Hou
sin
g C
ourt
is a
Cou
rt o
f Lim
ited
Ju
risd
icti
on
Non
-pay
men
ts
Hol
dov
ers
HP
(re
pai
rs c
ases
)
Har
assm
ent
Ille
gal e
vict
ion
s
7A p
roce
edin
gs
93
Non
-Pay
men
t C
ases
If a
ten
ant
doe
s n
ot p
ay h
er r
ent,
a la
nd
lord
may
br
ing
a ca
se a
gain
st h
er in
Hou
sin
g C
ourt
.
Bef
ore
brin
gin
g an
y ca
se in
Hou
sin
g C
ourt
, a
lan
dlo
rd m
ust
ser
ve t
he
ten
ant
wit
h a
pre
dic
ate
not
ice.
In
non
-pay
men
t p
roce
edin
gs t
hat
not
ice
is
call
ed a
ren
t d
eman
d.
Th
e n
otic
e ca
n b
e or
al o
r w
ritt
en a
nd
giv
e th
e te
nan
t at
leas
t 3
day
s, u
nle
ss
oth
erw
ise
spec
ifie
d in
th
e le
ase.
94
Pre
dic
ate
Not
ice-
Ren
t D
eman
d
Pre
dic
ate
Not
ice
=
Ren
t D
eman
d
95
Not
ice
of P
etit
ion
an
d P
etit
ion
96
Not
ice
of P
etit
ion
an
d P
etit
ion
(co
nti
nu
ed)
97
Pos
tcar
d
In a
dd
itio
n t
o th
e la
nd
lord
ser
vin
g th
e te
nan
t w
ith
th
e co
urt
pap
ers,
th
e C
ourt
wil
l als
o se
nd
th
e te
nan
t a
pos
tcar
d in
form
ing
them
of t
he
cou
rt
case
if t
he
ten
ant
doe
s n
ot a
nsw
er
98
An
swer
Aft
er r
ecei
vin
g th
e N
otic
e of
Pet
itio
n a
nd
P
etit
ion
, th
e te
nan
t h
as
5 d
ays
du
rin
g w
hic
h t
o fi
le a
n A
nsw
er a
t th
e C
lerk
’s O
ffic
e in
h
ousi
ng
cou
rt
Wh
en fi
lin
g A
nsw
er,
ten
ant
wil
l be
give
n a
co
urt
dat
e
99
An
swer
For
ms
100
Hol
dov
ers
Th
ese
are
case
s w
her
e th
e la
nd
lord
all
eges
th
at t
he
ten
ancy
has
ter
min
ated
, bu
t th
at t
he
ten
ant
is
“hol
din
g ov
er”
and
sh
ould
th
eref
ore
be e
vict
ed
Gro
un
ds
incl
ud
e ex
pir
atio
n o
f le
ase,
bre
ach
of l
ease
, or
com
mit
tin
g a
nu
isan
ce
101
Pre
dic
ate
Not
ice(
s)
Th
ere
are
dif
fere
nt
pos
sibl
e p
red
icat
e n
otic
es, d
epen
din
g on
th
e ty
pe
of c
ase:
Th
irty
Da
y N
oti
ce o
f T
erm
ina
tio
n: n
otic
e to
ten
ant
that
his
or
her
leas
e (w
het
her
wri
tten
or
oral
) is
not
bei
ng
ren
ewed
; com
mon
in
case
s w
her
e th
ere
is a
mon
th-t
o-m
onth
ten
ancy
10 D
ay
No
tice
to
Qu
it: n
otic
e to
ten
ant
that
he
or s
he
mu
st le
ave
pre
mis
es o
r a
hou
sin
g co
urt
cas
e w
ill b
e co
mm
ence
d; t
hes
e ar
e re
quir
ed if
th
e la
nd
lord
is a
lleg
ing
that
no
lan
dlo
rd-t
enan
t re
lati
onsh
ip e
xist
sN
oti
ce t
o C
ure
: wri
tten
not
ice
from
th
e la
nd
lord
det
aili
ng
item
s al
lege
d t
o be
a b
reac
h o
f le
ase
by t
he
lan
dlo
rd;
if t
he
ten
ant
doe
s n
ot
“cu
re,”
or
fix,
th
ese
issu
es w
ith
in t
he
tim
efra
me
set
fort
h in
th
e n
otic
e (a
t le
ast
10 d
ays)
, th
e te
nan
t w
ill r
ecei
ve a
Not
ice
to T
erm
inat
eN
oti
ce o
f T
erm
ina
tio
n: n
otic
e fr
om t
he
lan
dlo
rd t
erm
inat
ing
a te
nan
cy a
fter
a s
pec
ifie
d d
ate
102
Sam
ple
30
Day
Not
ice
of T
erm
inat
ion
103
Get
tin
g a
Cou
rt D
ate
In a
hol
dov
er p
roce
edin
g, t
he
cou
rt d
ate
is o
n t
he
Not
ice
of P
etit
ion
. T
he
ten
ant
doe
s n
ot n
eed
to
file
a
sep
arat
e an
swer
-by
ap
pea
rin
g on
th
e co
urt
dat
e, a
n
answ
er o
f “ge
ner
al d
enia
l” is
au
tom
atic
ally
en
tere
d
104
Som
e T
ypes
of
Hou
sin
g In
NY
C
Pri
vate
Ap
artm
ents
Mu
lti-
fam
ily
hom
es
Ren
t St
abil
ized
Ren
t C
ontr
olle
d
Pu
blic
Hou
sin
g
Oth
er
105
Ren
t st
abil
izat
ion
Ad
ded
pro
tect
ion
s
Rig
ht
to r
enew
leas
e
Rig
ht
to r
egu
late
d in
crea
ses
Rig
ht
to s
ucc
essi
on
New
Yor
k C
ity
Hou
sin
g A
uth
orit
y (N
YC
HA
) L
arge
st p
ubl
ic h
ousi
ng
syst
em in
th
e co
un
try
Stri
ct r
ule
s
Lon
g w
ait
list
106
Def
ense
s-N
onp
aym
ents
Serv
ice
def
ects
Fai
lure
to
rece
ive
ren
t d
eman
d
Imp
rop
er r
ent
amou
nt
Pay
men
t or
par
tial
pay
men
t
Ten
der
an
d r
efu
sal
Ren
t ov
erch
arge
Lac
hes
Rep
airs
107
Def
ense
s-H
old
over
s
Serv
ice
def
ects
Fai
lure
to
rece
ive
requ
ired
pre
dic
ate
not
ice(
s)
Vit
iati
on (
acce
pta
nce
of
ren
t as
wai
ver)
Val
id le
ase
Fai
lure
to
stat
e a
cau
se o
f ac
tion
/ va
gue
and
in
suff
icie
nt
alle
gati
ons
Ret
alia
tory
evi
ctio
n
Succ
essi
on
108
Serv
ice
of P
aper
s
Pe
rso
na
l S
erv
ice
:p
aper
s ar
e se
rved
dir
ectl
y on
th
e te
nan
tS
ub
stit
ute
Se
rvic
e: p
aper
s ar
e gi
ven
to
som
eon
e of
“s
uit
able
age
an
d d
iscr
etio
n”
insi
de
the
apar
tmen
t, b
ut
not
th
e p
erso
n n
amed
on
th
e p
aper
s; c
opie
s m
ust
als
o be
se
nt
via
regu
lar
mai
l an
d c
erti
fied
mai
lC
on
spic
uo
us
Pla
ce S
erv
ice
(“n
ail a
nd
mai
l”):
aft
er a
t le
ast
two
atte
mp
ts m
ade
at d
iffe
ren
t ti
mes
of d
ay, p
aper
s m
ay b
e le
ft o
n t
he
doo
r of
th
e a
pa
rtm
ent;
cop
ies
mu
st
also
be
sen
t vi
a re
gula
r m
ail a
nd
cer
tifi
ed m
ail
Eac
h p
erso
n n
amed
on
th
e p
aper
s m
ust
rec
eive
his
or
her
ow
n c
opy
109
Stip
ula
tion
s of
Set
tlem
ent
If t
he
par
ties
wis
h t
o se
ttle
th
e ca
se, t
hen
th
ey
ente
r in
to a
Sti
pu
lati
on
of S
ettl
emen
tT
his
agr
eem
ent
is a
co
ntr
act
betw
een
th
e p
arti
es t
hat
set
s ou
t ea
ch
par
ties
obl
igat
ion
s T
enan
ts s
hou
ld m
ake
sure
not
to
sign
an
yth
ing
they
don
’t u
nd
erst
and
or
wit
h w
hic
h t
hey
fee
l th
at
they
can
not
rea
son
ably
co
mp
ly –
once
an
ag
reem
ent
is e
nte
red
in
to, i
t is
dif
ficu
lt t
o va
cate
th
e ag
reem
ent
110
Com
mon
Set
tlem
ents
Fin
al ju
dgm
ent
vs. n
on-f
inal
Rep
airs
Pay
men
ts p
lan
s
Aba
tem
ents
/cre
dit
s
Mov
e-ou
t ag
reem
ents
Pro
bati
on
Bu
y-ou
ts
111
Tri
al
If t
he
par
ties
can
not
com
e to
an
y ag
reem
ent,
th
e ca
se
wil
l be
sen
t ou
t fo
r tr
ial
At
tria
l, ea
ch s
ide
wil
l be
able
to
pu
t fo
rth
th
eir
clai
ms
and
def
ense
s
In a
non
-pay
men
t ca
se, a
ny
amou
nt
that
th
e co
urt
fi
nd
s is
ow
ed b
y th
e te
nan
t is
du
e in
5 d
ays
or t
he
ten
ant
may
get
evi
cted
112
Mar
shal
’s N
otic
e/N
otic
e of
Evi
ctio
n
If a
ten
ant
has
sig
ned
a
Stip
ula
tion
wit
h a
jud
gmen
t,
or t
he
Cou
rt h
as o
rder
ed a
ju
dgm
ent
to b
e en
tere
d
agai
nst
a t
enan
t, a
nd
th
e te
nan
t d
oes
not
com
ply
wit
h
the
term
s of
th
e St
ipu
lati
on
or t
he
Cou
rt’s
Ord
er, t
hen
th
e te
nan
t ca
n g
et a
M
arsh
al’s
Not
ice
Th
e M
arsh
al c
an c
ome
and
ev
ict
the
ten
ant
on t
he
6th
busi
nes
s d
ay a
fter
th
e d
ate
on t
he
bott
om o
f th
e n
otic
e
113
Ord
er t
o Sh
ow C
ause
(O
SC)
In o
rder
to
stop
an
evi
ctio
n, t
he
ten
ant
mu
st fi
le a
n O
SC
–ev
en if
he
or s
he
thin
ks e
very
thin
g is
pai
d o
r h
e or
sh
e ot
her
wis
e co
mp
lied
wit
h t
he
stip
ula
tion
or
ord
er
Wh
en fi
lin
g an
OSC
, th
e te
nan
t m
ust
pro
vid
e th
e C
ourt
w
ith
“go
od c
ause
” as
to
wh
y th
e ev
icti
on s
hou
ld b
e st
opp
ed a
nd
giv
e an
y su
pp
orti
ng
doc
um
ents
Th
e te
nan
t sh
ould
not
giv
e th
e C
ourt
ori
gin
al d
ocu
men
ts
to a
ttac
h w
ith
th
e O
SC –
thes
e d
ocu
men
ts a
re n
ot
retu
rned
, so
the
ten
ant
shou
ld c
ome
wit
h c
opie
s or
wit
h
chan
ge t
o m
ake
ph
otoc
opie
s at
th
e co
urt
hou
se
114
Exa
mp
les
of “
Goo
d C
ause
”
Rec
eip
ts o
f pay
men
ts m
ade
(“su
bsta
nti
al
com
pli
ance
”)P
roof
of a
bili
ty t
o p
ayA
pp
rova
l/ c
omm
itm
ent
lett
ers
from
ch
arit
able
or
gan
izat
ion
sD
ocu
men
tati
on o
f pen
din
g ap
pli
cati
ons
Doc
um
enta
tion
of a
par
tmen
t se
arch
(in
a h
old
over
p
roce
edin
g)O
ther
sym
pat
het
ic fa
ctor
s (a
ge, d
isab
ilit
y, c
hil
dre
n in
th
e h
ome,
etc
)
115
Typ
es o
f Ren
tal A
ssis
tan
ce in
NY
C
Se
ctio
n 8
Pu
bli
c A
ssis
tan
ce S
he
lte
r A
llo
wa
nce
On
e-S
ho
t D
ea
l
Ch
ari
tie
s
FE
PS
(F
am
ily
Ev
icti
on
Pre
ve
nti
on
S
up
ple
me
nt)
SC
RIE
(S
en
ior
Cit
ize
n R
en
t In
cre
ase
E
xe
mp
tio
n)
DR
IE (
Dis
ab
ilit
y R
en
t In
cre
ase
Ex
em
pti
on
)
116
HP
Act
ion
s a
nd
Wa
rra
nty
of
Ha
bit
ab
ilit
y
War
ran
ty o
f H
abit
abil
ity
RP
L §
235-
bT
hre
e E
lem
ents
: 1.
Fre
e of
con
dit
ion
s d
ange
rou
s to
life
, hea
lth
or
safe
ty;
2.M
ain
tain
ed in
hab
itab
le a
nd
use
able
fas
hio
n; a
nd
3.
Mai
nta
ined
in a
ccor
d w
ith
th
e u
ses
reas
onab
ly in
ten
ded
for.
Mu
ltip
le D
wel
lin
g L
aw:
“Dw
elli
ng
Occ
up
ied
as
resi
den
ce o
f th
ree
or m
ore
fam
ilie
s li
vin
g in
dep
end
entl
y of
eac
h o
ther
.”
Hou
sin
g M
ain
ten
ance
Cod
e: N
YC
Ad
min
Cod
e, S
ecti
on 2
7
117
Ho
w t
o G
et
Re
pa
irs
HP
Ca
se:
Ten
ant
init
iate
d a
ctio
n s
eeki
ng
cou
rt o
rder
to
corr
ect
viol
atio
ns
of la
ws
that
rel
ate
to h
ousi
ng
stan
dar
ds.
F
ilin
g H
P C
ase
HP
D I
nsp
ecti
onP
oor
Per
son
’s W
aive
rSe
rvic
eH
PD
Vio
lati
on
s:
“A”
= N
on H
azar
dou
s 9
0 d
ays
“B”
= H
azar
dou
s 30
day
s“C
” =
Im
med
iate
ly H
azar
dou
s w
ith
24
hou
rsR
eli
ef
Sett
lem
ent
Cou
rt O
rder
Con
tem
pt
& F
ines
Te
na
nt
Ass
oci
ati
on
s: T
en
an
ts’ R
igh
t to
Org
an
ize
118
Co
mm
en
cin
g
a C
ase
1.R
equ
est
form
s fr
om
L&
T C
lerk
in
Hou
sin
g C
ourt
.
2.F
ill o
ut
com
ple
tely
. In
clu
de
AL
Lre
pai
rs.
3.M
AK
E S
UR
E Y
OU
“S
ER
VE
” (a
.k.a
. d
eliv
er t
o th
e la
nd
lord
) A
SO
RD
ER
ED
BY
TH
E
L&
T C
LE
RK
an
d
reta
in p
roof
of
such
.
Ten
ant’
s n
ame
Lan
dlo
rd’s
nam
eT
enan
t’s
add
ress
Ten
ant’
s n
ame
Lis
t R
ep
air
s
Ten
ant’
s si
gnat
ure
Lea
ve b
lan
k
To
be
fi
lle
d
ou
t b
y C
ou
rt
Cle
rko
r n
ota
ry
Dat
e
119
HP
D
Insp
ect
ion
R
eq
ue
st
1.H
PD
is a
par
tyto
th
e ca
se.
2.In
clu
de
AL
Lre
pai
rs. B
e sp
ecif
ic.
3.M
ake
sure
you
or
som
eon
e el
se o
ver
18 is
ava
ilab
le o
n
the
dat
e of
in
spec
tion
to
pro
vid
e ac
cess
an
d
poi
nt
out
con
dit
ion
s n
eed
ing
rep
air.
Mak
e su
re a
wo
rkin
gp
hon
e n
um
ber
is p
rovi
ded
Incl
ud
e al
l kid
s in
h
ome
and
ag
es!
120
Lea
ve b
lan
k
Lea
ve b
lan
k
Ten
ant’
s n
ame
Ten
ant’
s n
ame
Lan
dlo
rd’s
nam
eL
and
lord
’s n
ame
Ten
ant’
s n
ame
Ten
ant’
s n
ame
Lea
ve b
lan
k
Lea
ve b
lan
k
“Pet
itio
ner
”D
ate
Lea
ve b
lan
k
Ten
ant’
s ad
dre
ssD
escr
ibe
case
–i.e
., “r
epai
rs”
and
/or
“har
assm
ent”
Des
crib
e ca
se –
i.e.,
“la
nd
lord
fail
ed t
o re
pai
rs”
an
d/o
r “i
s h
aras
sin
g m
e”
x
x
121
An
ti-T
enan
t H
aras
smen
t L
aw
Lo
cal
La
w 7
/20
08
.D
efin
itio
n:
Sect
ion
1. S
ubd
ivis
ion
a o
f sec
tion
27-
200
4 o
f th
e ad
min
istr
ativ
e co
de
of t
he
city
of
New
Yor
k is
am
end
ed b
y ad
din
g a
new
par
agra
ph
48
to
read
as
foll
ows:
48
. Exc
ept
wh
ere
oth
erw
ise
pro
vid
ed, t
he
term
"h
aras
smen
t" s
hal
l mea
n a
ny
act
or o
mis
sion
by
or o
n b
ehal
f of
an o
wn
er t
hat
(i)
cau
ses
or is
inte
nd
ed t
o ca
use
an
y p
erso
n la
wfu
lly
enti
tled
to
occu
pan
cy o
f a d
wel
lin
g u
nit
to
vaca
te s
uch
dw
elli
ng
un
it o
r to
su
rren
der
or
wai
ve a
ny
righ
ts in
re
lati
on t
o su
ch o
ccu
pan
cy, a
nd
(ii
) in
clu
des
on
e or
mor
e of
th
e fo
llow
ing:
a. u
sin
g fo
rce
agai
nst
, or
mak
ing
exp
ress
or
imp
lied
th
reat
s th
at fo
rce
wil
l be
use
d a
gain
st, a
ny
per
son
law
full
y en
titl
ed t
o oc
cup
ancy
of
such
dw
elli
ng
un
it;
b. r
epea
ted
inte
rru
pti
ons
or d
isco
nti
nu
ance
s of
ess
enti
al s
ervi
ces,
or
an in
terr
up
tion
or
dis
con
tin
uan
ce o
f an
ess
enti
al s
ervi
ce fo
r an
ext
end
ed d
ura
tion
or
of s
uch
sig
nif
ican
ce a
s to
su
bsta
nti
ally
imp
air
the
hab
itab
ilit
y of
su
ch d
wel
lin
g u
nit
;c.
fai
lin
g to
com
ply
wit
h t
he
pro
visi
ons
of s
ubd
ivis
ion
c o
f se
ctio
n 2
7-21
40
of
this
ch
apte
r;
d. c
omm
enci
ng
rep
eate
d b
asel
ess
or f
rivo
lou
s co
urt
pro
ceed
ings
aga
inst
an
y p
erso
n la
wfu
lly
enti
tled
to
occu
pan
cy o
f su
ch d
wel
lin
g u
nit
;e.
rem
ovin
g th
e p
osse
ssio
ns
of a
ny
per
son
law
full
y en
titl
ed t
o oc
cup
ancy
of
such
dw
elli
ng
un
it;
f. r
emov
ing
the
doo
r at
th
e en
tran
ce t
o an
occ
up
ied
dw
elli
ng
un
it; r
emov
ing,
plu
ggin
g or
oth
erw
ise
ren
der
ing
the
lock
on
su
ch e
ntr
ance
doo
r in
oper
able
; or
chan
gin
g th
e lo
ck o
n s
uch
en
tran
ce d
oor
wit
hou
t su
pp
lyin
g a
key
to t
he
new
lock
to
the
per
son
s la
wfu
lly
enti
tled
to
occu
pan
cy o
f su
ch
dw
elli
ng
un
it; o
rg.
oth
er r
epea
ted
act
s or
om
issi
ons
of s
uch
sig
nif
ican
ce a
s to
su
bsta
nti
ally
inte
rfer
e w
ith
or
dis
turb
th
e co
mfo
rt, r
epos
e, p
eace
or
quie
t of
an
y p
erso
n la
wfu
lly
enti
tled
to
occu
pan
cy o
f su
ch d
wel
lin
g u
nit
an
d t
hat
cau
se o
r ar
e in
ten
ded
to
cau
se a
ny
per
son
law
full
y en
titl
ed t
o oc
cup
ancy
of a
dw
elli
ng
un
it t
o va
cate
su
ch d
wel
lin
g u
nit
or
to s
urr
end
er o
r w
aive
an
y ri
ghts
in r
elat
ion
to
such
occ
up
ancy
.
124
Rel
ief
Co
-op
s a
nd
tw
o-f
am
ily
ho
me
s e
xcl
ud
ed
C V
iola
tio
n
Civ
il P
en
alt
y o
f $
1,0
00
to
$5
,00
0.
125
NOTES
126
4
Overview of New York City Housing Authority (NYCHA) Housing and NYCHA Administrative Proceedings
Afua Atta-Mensah
Community Voices Heard
Ann R. Ascher
Queens Legal Services
If you find this article helpful, you can learn more about the subject by going to www.pli.edu to view the on demand program or segment for which it was written.
127
128
3
The New York City Housing Authority (NYCHA) is the largest public housing authority in the nation. NYCHA operates 334 public housing developments containing 178,914 apartments throughout the five boroughs of New York City. NYCHA reports that it provides housing to approxi-mately 412,281 low-income residents (a figure that excludes an estimated 100,000 residents who live doubled-up in public housing). As of March 27, 2013, 167,353 applicants were waiting for Conventional Public Housing. The turnover rate for NYCHA apartments in 2012 is about 3.04%. The vacancy rate of apartments available for occupancy is 0.93% in January 2013.
For information about NYCHA’s public housing projects, including location, travel directions, and the number of apartments in each project, see NYCHA’s on-line Guide to Developments at http://home.nyc.gov/ html/nycha/tdhtml/devdirectory5.html. For more detailed information, see NYCHA’s Project Data Book at http://www.nyc.gov/html/nycha/pdf/dev_ data_book.pdf. For general information about NYCHA, see http://www. nyc.gov/html/nycha/html/factsheet.html.
NYCHA’s Annual Plan for Fiscal 2013 for its Public Housing and Section 8 program may be found on the web at: http://www.nyc.gov/html/ nycha/downloads/pdf/Final_FY2013_Annual%20Plan_10_18_2012.pdf
Many important NYCHA materials, including its Management and Applications Manuals, can be found on line at www.probono.net.
For general information about the public housing program, see HUD’s Public Housing Occupancy Guidebook (June 2003), available on-line from the National Housing Law Project at http://www.nhlp.org/ html/pubhsg/phguidebook.pdf.
In addition, the 2004 National Housing Law Project’s Tenant’s Rights Handbook and 2006 Supplement (“the green book”) is a very useful resource for general information about public housing.
I. ELIGIBILITY CRITERIA
Residency
To apply for public housing, a family or individual must be a resident of New York City at the time of application. Applicants who are working or who have been notified that they are hired to work in New York City are treated as residents of New York City. There is no durational residency requirement.
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4
Income
For admission in all but two of NYCHA’s public housing pro-jects (Forest Hills Cooperative and Frederick E. Samuel Apartments), a family’s annual household income must not be greater than 80% of the Area Median Income for the family size as established and adjusted annually by HUD. HUD income limits for the public housing program are available on line at http://www.huduser.org/datasets/ il.html.
The 80% income limit for New York City is shown in the chart below in the third row labeled “Tier 3.” Other rows of this chart are used in connection with assigning priority to a NYCHA application. See the discussion of PRIORITIES below.
Area Median Income for NYC Effective FY 2013
# in Household 1 2 3 4 Tier 1 < 30%
30% AMI
$17,200 $19,650 $22,100 $24,550
Tier 2 31-50%
50% AMI
$28,650 $32,750 $36,850 $40,900
Tier 3 51-80%
80% AMI
$45,850 $52,400 $58,950 $64,450
Note: Families who are already living in public housing are subject to higher “Continued Occupancy” limits. See ANNUAL AND INTERIM RECERTIFICATIONS below.
To determine annual income, include wages before payroll deduc-tions of all family members 18 years of age or older. Also include net income from a business; interest, dividends, and other net income from real or personal property; periodic Social Security benefits; annuities; pensions; unemployment benefits; disability compensation; alimony and child support, and veteran’s benefits. For a full list if inclusions and exclusions from annual income, see CALCULATING ANNUAL INCOME below.
Criminal Convictions
NYCHA will deny admission to a family if any person who is expected to be a member of the household has a criminal conviction and a prescribed period of time after the conviction has not elapsed. The prescribed time periods are shown in the chart below.
130
5
Criminal Conviction Years after serving sentence
(including probation/parole)
Persons subject to a lifetime registration requirement under a State sex-offender registration
program
Indefinite
Class A, B, and C felonies 6 years
Class D and E felonies 5 years
Class A misdemeanors 4 years for one or two convictions
5 years for 3 or more convictions
Class B or unclassified misdemeanors
3 years for one or two convictions
4 years for 3 or more convictions
Violations or DWI infractions Not automatic ineligibility, but the family may be found
ineligible. Use of controlled substance can be grounds for
years ineligibility.
(See NYCHA Dep’t of Housing Applications Manual, Appendix, Exh. F.)
NYCHA will also deny admission to a family if any person who is expected to be a member of the household:
Started fire within last 4 years
Destroyed property, behaved violently, or disturbed neighbors within last 3 years
Has a record of grossly unsanitary housekeeping within last 2 years
Has a record of illegal use of drugs within last 3 years
Was permanently excluded from NYCHA apt within 5 years
Was terminated from NYCHA employment after trial within 3 years
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6
(See NYCHA Dep’t of Housing Applications Manual, ch. V, pp. 19-21.)
If NYCHA receives unfavorable information concerning an applicant, NYCHA will give consideration to the time, nature, and extent of the applicant’s conduct and to factors that might indicate a reasonable probability of favorable future conduct. For example, NYCHA will consider:
Evidence of rehabilitation
Evidence of participation in or willingness to participate in social services or other appropriate counseling service programs and the availability of such programs.
Suggested evidence of rehabilitation includes but is not limited to:
Positive school record
Positive record at job training program
Positive work record
Written verification of rehabilitation from a state-licensed drug treatment agency
Letter from sentencing judge or prosecutor’s office
Immigration Status
HUD issued regulations in 1995 that generally prohibit certain non-citizens from receiving federal housing subsidies. In general, so long as at least one household member has an eligible immigration status, other household members with an ineligible immigration status may reside in the apartment but may not benefit from a federal housing subsidy. In such cases, the subsidy is pro rated. A family is ineligible for public housing on immigration grounds only if all of its members are ineligible.
Persons whose immigration status is in one of the following categories are eligible for a public housing subsidy:
Citizens
Nationals (persons born in a U.S. territory or possession)
Legal permanent residents (“green card holders”) (see 8 U.S.C. § 1641(b)(1));
Refugees pursuant to INA §207 (see 8 U.S.C. § 1641(b)(3));
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7
Asylees pursuant to INA §208 (see 8 U.S.C. § 1641(b)(2));
Permanent resident under registry provision, INA § 249 (see 8 U.S.C. § 1259) (non-citizens who have been lawfully admitted for permanent residence based on entry in the U.S. before 1972 and continuous residence since then);
Persons granted withholding of deportation pursuant to INA §241(b)(3) (see 8 U.S.C. § 1641(b)(5));
Parolees under INA § 212(d)(5) (see 8 U.S.C. § 1641(b)(4));
Persons admitted under the mid-1980s legalization (“amnesty”) program, INA § 245A (see 8 U.S.C. § 1255a).
Important note: Eligibility for housing assistance is not tied to TANF eligibility (or eligibility for any other federal benefits program). For example, Legal Permanent Residents who entered the United States after August 22, 1996 are not TANF-eligible for the first five years after entry (8 U.S.C. § 1613), and, except for veterans, those in active military service, and their spouses, are not eligible without 40 quali-fying quarters of work (8 U.S.C. § 1612). But Legal Permanent Residents are immediately eligible for public/subsidized housing, regardless of the date of entry, passage of five years, 40 quarters, etc.
Proof of Eligible Immigration Status
Family members may choose not to claim they have an eligible immigration status. In that instance, no proof of immigration status need be submitted to NYCHA. Among family members who claim an eligible immigration status, citizens and nationals are required to submit a signed declaration of citizenship or U.S. nationality. Non-citizens 62 years of age or older are required to submit a signed declaration of eligible immigration status and proof of age. All others who claim an eligible status are required to document their immigration status.
NYCHA recognizes any of the following original documents as acceptable proof of eligible immigration status:
INS Form I-551 (Permanent Resident Card) (Note: An I-551 stamp on a passport should also suffice)
Form I-94 (arrival/departure record), with an annotation (1) “Admitted as Refugee Pursuant to Section 207”; or (2) “Section 208” or “Asylum”; or (3) Section 243(h) or
133
8
“Deportation Stayed by Attorney General”; or (4) “Paroled Pursuant to Section 212(d)(5)”
Form I-94 not annotated, but accompanied by (1) a final court decision granting asylum; or (2) a letter from an INS asylum officer granting withholding of deportation, or from an INS district director granting asylum; or (3) a court decision granting withholding of deportation;
Form I-688B (employment authorization card) annotated “Provi-sion of Law 274a.12(11)” or “Provision of Law 274a.12”
I-688 temporary resident card annoted “Section 245A” or “Section 210”;
A receipt issued by the INS indicating that an application for issuance of a replacement document in one of these categories has been made and the applicant’s entitlement to the document has been verified.
(See NYCHA Dep’t of Housing Applications Manual, Appendix, Exh. D.)
Practitioners are strongly advised to consult an experienced attorney concerning immigrant eligibility and documentation requirements.
“Grandfathering in” of Long-Term Tenants
Households currently in receipt of public housing are entitled to the full ongoing (“continued”) assistance, at no reduction of benefits, if:
the head of household or spouse has an eligible immigration status
the family was receiving assistance on June 19, 1995
there is no ineligible family member outside of the immediate family line (the head of household, spouse, and parents and children of the head of household and spouse)
the family was entitled to continued assistance before November 29, 1996.
Current resident families who cannot afford or do not want to pay a higher rent, and tenant families with no eligible members, can ask for a deferral of the termination of assistance. A temporary deferral of up to 18 months, in six month increments (or 3 years if
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9
a refugee or asylee household) may be granted if the following conditions are met:
the family demonstrates that reasonable efforts to find other affordable housing have been unsuccessful; and
either the vacancy rate for affordable housing of the appro-priate size is below five percent, or the jurisdiction lacks suffi-cient affordable housing
II. PRIORITIES
NYCHA uses an elaborate priority coding system to determine how quickly applicants will receive an eligibility interview for public housing. NYCHA’s priorities for admission are described in its Tenant Selection and Assignment Plan (TSAP), which was adopted in 1992 as part of a Consent Decree in Davis v. New York City Housing Authority. The original TSAP included what were then both federally mandated prefer-ences and local priorities.
In 1998, Congress eliminated the mandatory use of federal priorities. Despite that change, NYCHA continues to make use of the former federal preference categories for one-half of all new admissions (although NYCHA has changed the name of those priorities from “federal” to “need-based”).
For the remainder of all new admissions, NYCHA has adopted a local priority known as the “Working Family Preference.” In general, the Working Family Preference affords priority for up to one-half of all new admissions for those who are employed, elderly or disabled. If an appli-cant qualifies for both a Working Family Preference and a needs-based priority, the NYCHA will assign both priorities to the applicant. The priority that first gains the applicant an eligibility interview will be used.
NYCHA’s TSAP can be found at www.probono.net. For a summary of the priorities set forth in the TSAP, see http://www.nyc.gov/html/ nycha/html/prioritycode.html. See also NYCHA Dep’t of Housing Appli-cations Manual, Appendix, Exh. L.
Working Family Preference
Code W1: Applicants in income Tier III (51% to 80% of AMI) (highest local priority)
Code W2: Applicants in income Tier II (31% to 50% of AMI)
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10
Code W3: Applicants in income Tier I (below 30% of AMI) who are “working”
Applicants are classified as “working families” if:
the head of household or spouse is employed, or
the head of household and spouse, or sole member, are age 62 or older or are receiving social security disability benefits, SSI-disability benefits, or any other payments based on an indi-vidual’s inability to work
Because of an injunction in the Davis case, applicants selected for interviews based on a local priority may not be assigned to 13 housing developments. Those developments are: Berry, Cassidy-Lafayette, Forest Hills, Haber, Independence, Middletown, New Lane, Nostrand, Robbins, South Beach, Taylor-Wythe, Todt Hill, and Williams. N.B. As these developments integrate, they fall off this list.
Needs Based Preferences
Code N0 (highest priority)
Applicants who meet any of the requirements of Code N1 or Code N3 (see below) and who are referred by the NYC Depart-ment of Homeless Services (“DHS”) or by the NYC Department of Housing Preservation and Development (“HPD), or HIV/AIDS Services Administration (“HASA”) or the Agency for Children’s Services (ACS) pursuant to an agreement with the Housing Authority.
Note: DHS is no longer referring homeless families. DHS intends to refer “potentially” homeless families but it isn’t clear how this will be defined.
Applicants about to be discharged from a hospital by the NYC Health and Hospitals Corporation who would be homeless upon discharge and who are referred to the NYCHA by HHC
Applicants with children in foster care whose only barrier to unification is housing and who are not eligible for HSP. These families must be referred by ACS.
Code N1
Applicants who have suffered serious or repeated abuse from a family member or person with whom they have had, or continue to have, an intimate relationship, and as a result of that abuse the
136
11
victim suffered actual physical injury or the threat of injury, and the victim: (a) will continue to suffer abuse if (s)he continues to live in the current residence, or (b) has left the residence due to the abuse and is not living in standard permanent replacement housing. These applicants will not be offered an apartment near the residence which they resided at the time of the abuse. Note: Domestic violence survivors currently residing in a domestic violence shelter may automatically apply and become eligible for N-1 priority.
N.b. to qualify, an applicant must submit certain documentation. See http://www.nyc.gov/html/nycha/html/assistance/need_based.shtml for a list of the document requirements
Code N2
Applicants with a family member cooperating in a criminal investigation/prosecution where a member of the household has been threatened by a defendant in that investigation/prosecution or a person associated with the defendant. These applicants must be referred by the District Attorney’s Office. These applicants will not be offered an apartment near the residence which they resided at the time of the threat.
Code N3
Applicants living in housing declared uninhabitable by HPD or another government agency or already displaced due to a govern-ment order and not living in standard permanent replacement housing or applicants about to be displaced by a government order from a site to be used for a public housing development or public improvement. The applicant must provide documentation from HPD or another government agency.
Code N4
All other “working families” who are homeless, involuntarily displaced, living in substandard housing, or paying more than 50% of family income for rent. Substandard housing is defined as: (1) housing defined in 24 CFR 5.425 (1998) or (2) housing that constitutes a direct threat to life due to the illness or disability of a family member or (3) “extremely overcrowded” as defined as more than twice as many people as the number of living and bedrooms or (4) legally doubled up and overcrowded in public
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housing (“overcrowded” is defined as more than twice as many people as the number of bedrooms).
Code N5
All other families who are homeless, involuntarily displaced, living in substandard housing, or paying more than 50% of family income for rent. Substandard housing is defined as: (1) housing defined in 24 CFR 5.425 (1998) or (2) housing that constitutes a direct threat to life due to the illness or disability of a family member or (3) “extremely overcrowded” as defined as more than twice as many people as the number of living and bedrooms or (4) legally doubled up and overcrowded in public housing (“overcrowded” is defined as more than twice as many people as the number of bedrooms).
Code N8
Applicants who do not qualify for a Need Based preference and are not now renting either a public housing or a Section 8 apartment.
Applicants who do not live or work or have a commitment for a job in NYC
Code N9
Applicants who do not qualify for a Need Based preference and are now renting either a public housing or a Section 8 apartment.
N.B. If your client has a code N8 or N9, they will not be getting into public housing.
III. APPLICATION PROCESS
Applications
Applications may be obtained in person or requested by mail at any NYCHA Borough Application Office. New applicants for public housing or NYCHA tenants requesting a transfer must apply at the NYCHA Applications Office in the borough of their current residence. Applicants may simultaneously apply for Public Housing and for the Section 8 program. Applications should be updated every 2 years. New information will be consolidated with past information. Applications not updated will expire after three years from the date of filing, unless the applicant has been called in for an interview.
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NYCHA Borough Application Offices
Brooklyn 787 Atlantic Avenue, 2nd Floor (718) 707-7771
Bronx 478 East Fordham Road (1 Fordham Plaza) 2nd Floor
(718) 707-7771
Queens 90-27 Sutphin Blvd., 4th Floor Jamaica
(718) 707-7771
Selection Process
Each applicant must appear for and cooperate in an eligibility interview. Interviews are scheduled based on the priority coding, date of application and availability of apartment sizes in the borough requested. Waiting time tends to be shorter for families who qualify for smaller apartments (two bedrooms or less).
At the eligibility interview the applicant’s family size and composition, housing priority, total family income and citizenship/ immigration status are determined. If the family is income-eligible and all requested documentation is received, the application is sent to the Department of Housing Application’s screening unit. Screening consists of three steps: (1) a criminal background check for all house-hold members over the age of 16; (2) a contact with the current and/ or previous landlord; and (3) a home visit conducted by an outside contractor.
If found eligible, applicants priority coded W1, W2, W3, N3, N4, N5, N8 and N9 are permitted choose a project. (Applicants in the first category of N3, “health emergencies,” have the option of project choice or borough choice.) Applicants with project choice receive a list of projects designated as requiring applicants in the apartment size required by the family. Unless there were changed circumstances between the application and interview dates, applicants must select a project in the borough of their first or second choice as indicated on the application. Applicants may defer their project selection for up to thirty days. Once the project is selected, the applicant is “certified” to the project. NYCHA anticipates that certification to a project entails a wait of six to nine additional months until an apartment is offered. N.B. in a recent change, applicants with project choice will only be offered one apartment. Applicants with borough choice will still be able to turn down one apartment. We do not recommend that any applicant turn down an apartment except for cause.
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Emergency applicants (priority codes N0, N1, N2, and N3) and applicants who require five bedrooms or more may select only a borough in which they wish to live, rather than a particular project. At their eligibility interview, these applicants must select one of the two boroughs listed on their application, unless they can demonstrate changed circumstances between the application and interview dates. Applicants who are found eligible will be computer-matched to an actual vacancy in the borough selected, without regard to any prefer-ence by the applicant for a particular project in that borough.
NYCHA operates some housing exclusively for the disabled and elderly and some apartments are reserved for these groups in all developments. Applicants should be prepared for a long wait, in some cases several years, depending on priority status.
Inactive Applications
Applications will not be acted upon if the applicant fails to:
appear for an eligibility interview within six months of the scheduled date; or
submit required additional information within six months of the date requested; or
select a project from among those designated on the list of projects with anticipated vacancies in the appropriate apartment size within 30 days; or
accept two apartment offers, unless a temporary emergency prevents a move at the time of the second offer; or
respond within 45 days to notice from a project manager advising that an apartment is available; or
respond within 45 days to a letter from NYCHA inquiring as to whether a certified applicant is still interested in public housing; or
accept an offer because the applicant believes the apartment is of an inappropriate size, or
has informed NYCHA that he or she is no longer interested in public housing.
The application will then be considered “dead,” meaning no fur-ther action will be taken on the application. A new application must be filed if the individual is still interested in obtaining public housing. Any new application is governed by the date of its receipt. The
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applicant may not be selected for interview or certified to any project for one year after the initial application was deemed “dead.” How-ever, information contained in a “dead” application may be used to verify information contained in subsequent applications.
Occupancy Standards
In determining the apartment size for which an applicant family is eligible, NYCHA applies the following occupancy standards:
Single person families are assigned either a “zero” bedroom (efficiency apartment) or a one-bedroom apartment
Two person families
Couples (spouses, domestic partners, etc.) are assigned a one-bedroom apartment
Two persons with the youngest member under six years of age are assigned a one-bedroom apartment
Two persons of different sexes with the youngest member six years of age or older are assigned a two-bedroom apartment
Three person families are assigned a two-bedroom apartment
Four person families
“4P” families (all of same sex, two of each sex, or a couple and two others of same sex) are assigned a two-bedroom apartment
“4X” families )all other four-person families) are assigned a three-bedroom apartment
Five person families are assigned a three-bedroom apartment
Six, seven, or eight person families are assigned a four-bedroom apartment
Families of nine persons or more are assigned to an apartment size with one bedroom provided for each two persons in the family. A separate bedroom will be provided for the person in excess of the basic two-person-per-bedroom standard
NYCHA will make an exception to these occupancy standards if necessary to provide a reasonable accommodation. For example, a separate bedroom may be provided if the family demonstrates the
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need for an additional bedroom due to a permanent health condition. See NYCHA Applications Manual, ch. 5, pp. 25-26.
IV. SETTING THE RENT
Rent-payment options depend on two factors: (1) whether a family’s sole source of income is public assistance, and (2) how many family members are eligible immigrants.
Families Whose Members Are All Immigration-Eligible
Families in federal projects whose sole source of income is not public assistance
In federally subsidized projects, families whose sole source of income is not public assistance, and whose members are all immigration-eligible, pay rent equal to the greater of 30% of the family’s monthly adjusted income, or 10% of the family’s monthly gross income, but not more than the ceiling rent for the apartment.
For definitions of the terms adjusted income and gross income, see CALCULATING ANNUAL INCOME below.
Ceiling rents
The ceiling rent is the maximum rent set by the Housing Authority for the apartment. The flat rent schedule applies to all NYCHA developments except for new construction and property disposition developments, including Forest Hills Co-op and Frederick Samuels Apartments. The flat rent schedule does not apply to the Section 8 voucher program.1
1. NYCHA’s website explains: “The U.S. Department of Housing and Urban Develop-ment (HUD) recently approved NYCHA’s Fiscal Year 2013 Annual Public Housing Authority (PHA) Plan which includes a rent equity proposal to increase rents for NYCHA households with the highest household incomes. The vast majority of NYCHA households (70 percent) who pay 30 percent of their income toward rent will not be impacted by this increase. NYCHA will, however, increase rents for the 30 percent of NYCHA households who pay on average just 21 percent of their income for rent.
The flat rent schedule is being phased in over a five year period as part of the Annual Review and rental process starting in the first quarter of 2013. The rents in the flat rent schedules are base rents only and do not include recurring charges, e.g. reserved parking, appliance charges.” See http://www.nyc.gov/html/nycha/html/ residents/res_new_flat_rent.shtml.
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Household Size
Adjusted Net Income After Deductions
Studio One Bedroom
Two Bedroom
Three Bedroom
1 $21,280 to $34,900
$532 $576 $641 Not applicable
$34,901 to $46,500
$651 $704 $783 Not applicable
$46,501 to $58,100
$828 $896 $997 $1,226
Above $58,100
$946 $1,024 $1,139 $1,402
2 $21,280 to $39,850
$532 $576 $641 $788
$39,851 to $53,150
$651 $704 $783 $964
$53,151 to $66,400
$828 $896 $997 $1,226
Above $66,400
$946 $1,024 $1,139 $1,402
3 $21,280 to $44,850
$532 $576 $641 $788
$44,851 to $59,800
$651 $704 $783 $964
$59,801 to $74,700
$828 $896 $997 $1,226
Above $74,700
$946 $1,024 $1,139 $1,402
4 $21,280 to $49,800
$532 $576 $641 $788
$49,801 to $66,400
$651 $704 $783 $964
$66,401 to $83,00
$828 $896 $997 $1,226
Above $83,000
$946 $1,024 $1,139 $1,402
5 $21,280 to $53,800
$532 $576 $641 $788
$53,801 to $71,750
$651 $704 $783 $964
$71,751 to $89,650
$828 $896 $997 $1,226
Above $89,650
$946 $1,024 $1,139 $1,402
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(NYCHA Man. Manual, Ch. III, P. 122) NYCHA is changing the entire structure of ceiling rents over a two year period. We don’t know when the year starts but sometime this year it will start.
Note: There are no minimum rents in federal projects.
Waiting Period. If a resident requests a hardship exemption, NYCHA must suspend the minimum rent requirement beginning in the month following the family’s request for a hardship exemption, and continuing until NYCHA determines whether there is a quali-fying financial hardship and whether it is temporary or long term. A resident may not be evicted for nonpayment or rent during the 90 day period beginning the month following the request for a hardship exemption.
If NYCHA determines that there is no qualifying hardship, or the qualifying hardship is temporary, NYCHA must reinstate the minimum rent from the beginning of the suspension period. NYCHA then must offer the resident a reasonable payment agreement for the amount of back minimum rent owed by the resident. In the event the resident demonstrates that the financial hardship is of a long-term basis, NYCHA will retroactively exempt the resident from the applicability of the minimum rent requirement for such 90 day period and continue the exemption so long as such hardship continues.
Ceiling rents. Ceiling rents for NYCHA’s State and local pro-jects are the same as for federal projects.
Public Assistant: Basic allowances For All tenants in All Pro-grams (Excluding Rent)
Family Size Full Public Assistance Allowance
1 Person $1,645
2 Persons $2,622
3 Persons $3,492
4 Persons $4,508
5 Persons $5,564
6 Persons $6,422
7 Persons $7,292
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Changes in Income During the Year
Special rules apply to rent changes caused by increases or decreases in income during the year. See the discussion of “Annual and Interim Recertifications” below.
Rents for Families With Some Members Who Are Not Immigration-Eligible
As a general rule, families with some members who do not have an eligible immigration status have their housing subsidy pro-rated. See GM 3707. To determine the rent for such a family, start by cal-culating the rent that the family would pay if all family members had an eligible immigration status. Subtract this figure from the ceiling rent. The difference is the amount of NYCHA’s subsidy.
Next, multiply the subsidy by a fraction equal to the percentage of immigration-eligible family members. Subtract this number from the ceiling rent. The difference is the family’s rent.
Example. A family in a federal project consists of a mother who has an ineligible immigration status and two citizen children. The family, which lives in a two-bedroom apartment, receives only public assistance income.
Start by finding the rent the family would pay if all family members had an eligible immigration status. From the table on page 14, if the mother were immigration-eligible, the monthly rent would be $137.
Subtract this figure from the ceiling rent. From the table on page 14, the ceiling rent is $495. The difference of $358 ($495-$137) is the amount of NYCHA’s subsidy.
Next, multiply the subsidy by a fraction equal to the percentage of immigration-eligible family members. Two-thirds of the family members (the two children) have an eligible immigration status. Two-thirds of the subsidy is $239 (to the nearest dollar)
Finally, subtract this number from the ceiling rent. The family’s rent is therefore $256 ($495-$239)
OTHER FEES
NYCHA charges additional fees for air conditioners, dishwashers, washing machines, freezers. The fees can be found in the NYCHA Management Manual, Apartment Visits and appliance procedure, p. 23.
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In addition, if NYCHA determines that certain conditions were tenant caused, NYCHA will charge the tenant a set fee depending on the type of repair. See NYCHA Management Manual, Chapter V, Appendix A.
N.B. For SSI/pa households, NYCHA is miscalculating their rent b/c HRA has cut the level for these households. Individual advo-cacy can usually solve the problem.
V. CALCULATING ANNUAL INCOME
Gross annual income means all amounts monetary or not, which (1) go to, or on behalf of the family head or spouse (even if temporarily absent) or to any other family members; (2) are anticipated to be received from a source outside the family during the 12 month period following admission or re-examination date; (3) are not exemptions (see below); and (4) are amounts derived during the 12 month period from assets to which any member of the family has access. 24 C.F.R. § 5.609 (a).
Gross Income
Gross income includes:
1. The full amount, before any payroll deductions, of wages and salaries, overtime pay, commissions, fees, tips and bonuses, and other compensation and personal services.
2. Net income from running of a business
3. Interest dividends and other net income from assets. Where the family has net family assets in excess of $ 5,000, annual income includes the greater of the actual income derived from all net family assets or a percentage of the value of the assets based on the current passbook savings rate, as determined by HUD.
4. The full amount of periodic amounts received from Social Secu-rity, annuities, insurance policies, retirement funds, pensions, disability or death benefits.
5. Payments in the place of earnings such as unemployment benefits, workman’s compensation, severance pay or welfare assistance.
6. Pay received by a member of the Armed Services, for example the salary of an army private whose child is living in a unit with the family.
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7. Periodic and determinable allowances, such as alimony and child support payments, and regular contributions or gifts received from organizations or from persons not residing in the dwelling.
(See 24 C.F.R. § 5.609(b)); and see the Public Housing Occupancy Guide-book, pp. 112-16.
Exemptions from Gross Income
1. Wages of children under the age of 18 years living at home, including foster children regardless of whether the individual attends school.
Note: The income of a household head or spouse and unearned income of minors from sources such as Social Security, SSI or welfare benefits is not excluded from income.
2. Earnings in excess of $ 480 for each full-time student 18 years old or older (excluding the head of household and spouse).
3. Student Assistance All amounts received from scholarships, educational entitlements,
grants, work-study programs and financial aid packages, even if earmarked for living expenses.
4. Foster Payments (for the care of children or adults) Unless it is the family’s only income. If so, apply the 10% gross
income rule.
5. Adoption Assistance Payments Adoption assistance payments in excess of $480 per adopted child.
6. Food This applies to Food Stamps, programs that provide food and
gifts of food from outsiders.
7. Income of live-in attendants.
8. Grants, Contributions or Reimbursements for apparatus for a disa-bled member, expenses for attendant care by someone other than a family member and medical expenses.
9. Lump-sum additions to family wealth such as inheritance or insurance settlement/payment
This applies also to payments under health and accident insurance and Worker’s Compensation, capital gains and settlement for personal or property losses.
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10. Deferred Periodic Payments of SSI and Social Security Payments received in a lump sum or in prospective monthly
amounts.
11. Temporary, non-recurring sporadic income.
12. State Rent Credits and Rebates for Property Taxes Paid on the Dwelling Unit.
13. Special Armed Forces Pay For example, hazardous duty pay or extra pay for peace keeping
duty.
14. A foreign government’s reparations payments made to persons persecuted during the Nazi era.
15. Resident Service Stipends Amounts paid to residents, not exceeding $200 per month for
performing services for the Authority or project to enhance the quality of life. If the stipend exceeds $200 per month include the full amount in the calculation of the income, not just the portion that exceeds $200. A family may receive more than one stipend, however, you may exclude only one stipend per family member. This exclusion is an expansion of a previous rule which excluded stipends to officers of resident councils.
16. Compensation received under a state or local employment or resident management training program - compensation that is a component of a program with clearly defined goals such as on-the-job training or apprenticeship programs.
17. Amounts received under training programs funded by HUD.
18. State Homecare Payments Payments to offset the cost of equipment and services needed to
keep a developmentally disabled family member at home.
19. Reimbursement and out-of-pocket expenses while attending a public assisted training program.
(24 C.F.R. § 5.609(c)). For more complete information on exemptions from annual income, see the Public Housing Occupancy Guidebook, pp. 116-20.
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Adjusted Income
Adjusted income means annual gross income of the members of the family residing or intending to reside in the dwelling unit, after making the following deductions:
1. Dependent Deduction $480 per year for each member of the household who is
under 18 years old, or
18 years old or older AND disabled, or
a full time student (minimum 12 credits)
The head of household, spouse, foster children and live-in home attendants may not be given dependent deductions under any circumstances.
2. Elderly Family Deduction
$400 per year where the head of household, spouse or sole member is
62 years of age, or
handicapped, or
disabled
3. Elderly Family Medical/Dental Deduction
All unreimbursed medical and dental expenses for an Elderly Family (such as insurance and Medicare payments) anticipated for the annual review period, to the extent they exceed 3% of gross income.
Note: This deduction applies only to an Elderly Family (head of household, spouse, or sole member is at least 62 years old, or disabled or handicapped). However, the family member incurring the expense does not have to be elderly, disabled, or handi-capped.
4. Handicapped Assistance Deduction
All unreimbursed attendant care and/or apparatus expense for each member of the family who is a person with a disability, to the extent necessary to enable any member of the family (including the disabled member) to work or pursue an education, to the extent they exceed 3% of gross income. The deduction cannot exceed the amount of employment income made possible by the expenses.
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5. Child Care Deduction
Any reasonable child care expenses necessary to enable a member of the family to be employed or to further their education. Note: NYCHA limits the child care deduction to a maximum of $50/ week for one child or $80/week for more than one child. (NYCHA Man. Manual, ch. 6, Exh. 9.) This limitation could be subject to legal challenge.
State and City Projects (See Appendix A for a list of State and City Projects)
1. Dependent Deduction
$300 per year for each member of the household who is under 18 years old, or
18 years old or older AND disabled, or
a full time student (minimum 12 credits)
2. Elderly Family or Disabled Family Deduction
10% of gross income
3. Non-Elderly Families
5% of gross income
4. Working Head of Household and Spouse
$300, or actual earnings of spouse, whichever is less
5. Medical Expenses
All unreimbursed medical expenses (such as Medicare payments and dental expenses) anticipated for the annual review period, to the extent they exceed 3% of gross income.
Note: This deduction is not limited, as in federal projects, to Elderly Families.
6. Child Care Deduction
Any reasonable child care expenses necessary to enable a member of the family to be employed or to further their education. Note: NYCHA limits the child care deduction to a maximum of $50/ week for one child or $80/week for more than one child. (NYCHA Man. Manual, ch. 6, Exh. 9.) This limitation could be subject to legal challenge.
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Payroll Rent Deduction Program: NYCHA and other municipal employees can have their rent deducted from their paycheck and paid directly. GM 3731.
VI. FAMILY COMPOSITION RULES AND REMAINING FAMILY MEMBERS
Persons Who May Lawfully Reside In A NYCHA Apartment
On November 22, 2002, NYCHA adopted stringent rules con-cerning who may lawfully reside in a NYCHA apartment. Three categories of persons may lawfully reside in a NYCHA apartment: (1) original family members; (2) additional family members auto-matically authorized to reside in the apartment because of “family growth”; and (3) persons granted permission for permanent residency in writing by the Housing Manager.
Original Family Members. Original family members are those authorized to reside in the apartment at the initial move-in.
Family Growth. Persons born to, legally adopted by, or judicially declared to be the ward of the tenant or an authorized permanent family member are automatically authorized to reside in a NYCHA apartment.
Requests for Permission for Permanent Residency. Before November 22, 2002, a NYCHA Housing Manager could grant per-mission for permanent residency to (1) two or more persons living together related by blood, marriage, or adoption, or (2) two or more unrelated persons, regardless of sex., living together as a cohesive family group in a sharing relationship.
After November 22, 2002, a NYCHA Housing Manager could grant permission for permanent residency only to the following persons:
The following relatives of the tenant of record: spouse, son/daughter, stepson/stepdaughter, parent, stepparent, sibling (including half-sibling), grandparent, grandchild, son/daughter-in-law, mother/ father-in-law
A domestic partner of the tenant of record who submits a Certifi-cate of Domestic Partnership Registration by the City Clerk of the City of New York
Original family members, or persons in the Family Growth cate-gories, who moved out and now seek to move back in.
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A criminal background check is performed on all proposed new permanent residents in a NYCHA apartment who are at least 16 years of age.
Remaining Family Members
Apartment residents have “remaining family member” rights in a NYCHA apartment if they meet the following criteria:
They were authorized for permanent residence in a NYCHA apartment as described above; and
They are “otherwise eligible” for admission to NYCHA; and either
For original family members and those in the Family Growth categories, they resided in the apartment continuously from the date of original move-in , or
For persons granted permission for permanent residence by the Housing Manager before November 24, 2002, they resided in the apartment continuously from the date of the Housing Manager’s approval, or
For persons granted permission for permanent residence by the Housing Manager after November 24, 2002, they resided in the apartment continuously from the date of the Housing Manager’s approval and for at least one year immediately prior to the date the tenant of record permanently vacates the apartment or died.
A new criminal background check is performed on all remaining family members who are at least 16 years of age.
Note: McFarlane v. New York City Housing Authority, 9 A.D.3d 289, 780 N.Y.S.2d 135, (1 Dep’t 2004) seems to hold that written consent is not dispositive if the Authority “knew of, and took no preventive action against, the occupancy by the tenant’s relative.” This may open the door to creative lawyering.
Also Note: Torres v. NYCHA, (Sup. Ct. N.Y. Co.), on appeal, on probono.net, holds that the failure to post notice of the one year rule means that it fails to go into effect. Torres was reversed on appeal, but the reversal left open this issue for further litigation, because the reversal was b/c the tenant failed to raise the issue at the hearing.
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VII. ANNUAL AND INTERIM RECERTIFICATIONS
Non-Verifiable Income (NVI) Rents
Public housing tenants must recertify income and family compo-sition annually. See GM 3707 which details the 3rd party verification system. Basically HUD requires third parties to verify the tenant’s income. The failure to recertify income and family composition ade-quately may lead NYCHA to increase the rent to the “Non-Verifiable Income” (NVI) rent. The NVI rents are:
# Hshld Members
NVI Rent # Hshld Members
NVI Rent
1 $668 5 $1030
2 $764 6 $1106
3 $859 7 $1183
4 954 8 $1259
Income Review Quarters
In many NYCHA developments, annual income review are divided into quarters ending on March 31, June 30, September 30, and December 31 of each year. Any income changes up to and including the 16th day of the first month of the quarter in which the review is done are included in calculating annual income.
The chart below summarizes important dates for purposes of quarterly income reviews.
Review Period
Papers To Tenant By
Income Cutoff Date
Increases Completed
by
Decreases Completed
by
Effective Date of
New Rent
1/1 - 12/31 12/31 1/16 3/20 4/20 5/1
4/1 - 3/31 3/30 4/16 6/20 7/20 8/1
7/1 - 6/30 6/30 7/16 9/20 10/20 11/1
10/1 - 9/30 9/30 10/16 12/20 1/20 2/1
Income Realism
If a tenant reports no income or amounts of income that appear insufficient to sustain basic household functioning, NYCHA will
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conduct an in-depth examination of all sources of income and will refer the household to its Social Services Division for an evaluation. To be considered sufficient to sustain basic household functioning, annual net income must be greater than 80 percent of the basic HRA public assistance grant level (the Food and Other allowance) for the family size. The following chart summarizes NYCHA’s “income realism” thresholds:
# Hshld Members
Yearly Income
# Hshld Members
Yearly Income
1 $1323 5 $4451
2 $2098 6 $5138
3 $2794 7 $5834
4 $3606 8 $6529
Continued Occupancy Limits
A resident whose income increases beyond initial eligibility limits may remain as a public housing tenant so long as the net household income, after all allowable deductions and exemptions, is below NYCHA’s Continued Occupancy standard for the family size.
NYCHA Continued Occupancy Limits Revised April 9, 2002
# in Household 1 2 3 4 5 6 7 8
Income Limit $52,740$60,300$67,800$75,400$81,400$81,400$81,400$81,400
(See NYCHA Dep’t of Housing Applications Manual, Appendix, Exh. B.)
To determine total household income for this purpose, make all deductions used in determining adjusted income. In addition, the following exclusions apply:
All earned income of minors under 21 years of age (other than the head of household) All earnings of secondary wage earners up to $2,000 (but not exceeding $4,000) All Social Security or pension up to $75 per month for persons 62 years or older
(See NYCHA Management Manual, ch. VI, § VI, p. 32, and Exh. 2.)
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Increases in Income between Annual Recertifications
In 1998, Congress imposed mandatory income disregards when an increase in earned household income occurs for one of the fol-lowing reasons:
employment of a family member who was previously unem-ployed for a year or more; or
participation of a family member in any family self-sufficiency or other job training program; or
a family member is or was, within six months, assisted under the State Family Assistance program
For the first 12 months of employment there will be no rent increase, despite any increase of income in the household. During the second 12 months of employment, the rent will increase by only 50% of the amount it otherwise would have increased without the disregard. Thereafter, the rent increase will be based on the household’s total income, without any disregard.
Any other increase in income between annual recertifications will result in a rent increase on the effective date above. However, with the following two exceptions, it will not result in a retroactive surcharge. The two exceptions are:
If NYCHA granted a rent reduction during the year based on an interim income review, and later during that year the income was restored, NYCHA will impose a retroactive surcharge from the time the income was restored.
If the tenant fails to submit income information and verification in time to permit completion of the review before the close of the quarter, a retroactive charge may be imposed.
Decreases in Income between Annual Recertifications
NYCHA’s Management Manual discusses four situations in which NYCHA will process a rent reduction based on a documented decrease in income between annual recertifications:
For tenants who are accepted for PA. Note: Special rules apply where PA income reduces because of a work-related sanction (see below).
For employed family members who suffer a reduction or loss of employment income of 3 months duration.
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For decreases in non-employment income occasioned by the death or departure of an income recipient, including placement in a nursing home, confinement in prison, permanent separation of spouses, marriage and departure of a resident dependent, and entry into military service.
Note: Except for a permanent separation of spouses when legal action has begun, NYCHA will not process the rent change unless the departure endures for three months.
For changes in income based on residents on full-time or reservist duty in the military.
Where notice is within 30 days of the decrease in income, the rent will be adjusted as of the first of the month following the date on which the change occurred.
Where notice is later than 30 days, the rent will be adjusted as of the first of the month following the date on which NYCHA received notice. Note: An exception applies where the tenant establishes that the failure to report a decrease in income was due to reasons beyond the tenant’s control; in that case, NYCHA will issue a retroactive rent credit to the first of the month following the date on which the reduction occurred.
Public Assistance Reductions
For families who reach the federally mandated five-year lifetime welfare benefit, NYCHA will invoke its minimum rent policy under which it accepts as rent a sum reflecting the family’s reduced income.
To assist those who move from welfare to work, NYCHA will phase in rent increases over a two-year period.
Special rules apply where a reduction in public assistance income is caused by work-related or fraud sanctions. NYCHA may not reduce the rent based on a reduction in PA income attributable to a work-related or fraud sanction. However, this rule does not apply to a reduction in PA income based on welfare time limits. Written notice from welfare department stating the reason for sanction required. Additionally, a change in public housing lease is required before this policy may be implemented.
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VIII. TENANT TRANSFERS
Transfers from one NYCHA apartment or project to another may be granted. The grounds and priorities for transfers, and the many conditions and limitations on them, are too numerous and complex to summarize fully here. For full details, see Section VI(B) of the TSAP, or the NYCHA Dep’t of Housing Applications Manual, Appendix, Exh. P. For example, NYCHA is giving a top priority to households in City or State developments who agree to move. There may be other changes as well. Some of the more important grounds and priorities for transfer include:
Priority Code T0 Tenants whose apartments have become uninhabitable through no fault of their own, or who must move because of project renovation within 6 months, or wish to return after renovation was completed. As a result of a stipu-lation approved by members of the authority, tenants who are living in underoccupied apartments.
Priority Code T1 Tenants who will be displaced because of project reno-vation but not within 6 months, displaced because their apartment is needed for project use, living in extremely underoccupied apartments, require an accessible apart-ment, or who are no longer eligible to reside in a senior project or building
Priority Code T2 Tenants who are living in underoccupied apartments, suffering a rent hardship, choosing to leave a special-purpose program, victims of domestic violence,2 intimi-dated victims and witnesses, child sexual victims, victims of a traumatic incident in their apartment, or related to a family member who died in the apartment, referred by ACS b/c they have a child in foster care which won’t be released without a transfer
Priority Code T3 Tenants who are extremely overcrowded, or involved in long-term friction with neighbors, or in need of medical, home health, or child care far from the project, or disabled in a non-elevator building and in need of a low-floor apartment.
2.. See GM 3730 (www.probono.net) for the complicated documentation require-ments for this priority.
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Priority Code T4 Tenants who are overcrowded, or required to travel more than 90 minutes because of a change of work location, or wish to move into or out of a project for seniors.
NYCHA has adopted an Emergency Transfer Program for victims of domestic violence, child sexual victims, and intimidated victims and witnesses in Priority Code T2. Applicants for an emergency transfer are subject to zip code exclusions. Staten Island residents may not choose their current borough.
To qualify for an emergency transfer as a victim of domestic violence, the applicant must provide documentation in the form of (1) a referral from Safe Horizon and a Criminal or Family Court order of protection, and (2) one or more Police Incident Reports within the last six months for a different incident than the one that prompted the order of protection.
To qualify for an emergency transfer as a child sexual victim, the applicant must, when younger than 18 years of age, have been the victim of rape or sodomy in the first degree or aggravated sexual assault. The victim must have a referral from Safe Horizon or the District Attorney’s office and a copy of one or more arrest reports within the last year.
Tenants who wish to transfer between apartments or projects must submit a written request with supporting documentation to the manager of the project at which they reside showing the reason for the transfer request. If the project manager denies the request, the tenant will be notified in writing of the reason for denial. If the manager approves an intra-project transfer request, the individual will be assigned a priority code and placed on the computerized project waiting list. If the manager approves an inter-project transfer request, the applicant will be assigned a priority code and the case will be sent to the Borough Director or designee for review. If the Borough Director or other designated per-sonnel denies the inter-project transfer request, the tenant will receive a written notice stating the reason for the denial. If the request is approved, the tenant transfer process will be effected.
IX. EVICTION AND GRIEVANCE PROCEDURES
Resident Grievance Procedures
Residents with grievances against NYCHA may use the grievance procedure. Policy questions, class grievances, inter-tenant conflicts, personal injury, damage claims or commercial tenants are excluded. A tenant initiates a grievance by discussing the problem with the
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Housing Manger, who must prepare and send to the tenant a summary of the discussion.
A tenant who is dissatisfied with the Manager’s decision may file a written request for District Office review within ten working days after receipt of the Grievance Summary. Within 10 working days of the tenant’s request, the District Chief Manager must review the grievance and inform the tenant and Housing Manager in writing of the determination. A grievance regarding remaining family member status will generally proceed only to this second step of the grievance process unless the tenant can make a substantial showing of the right to succeed to the apartment.
If the District Chief’s review was unfavorable, the tenant may request a formal hearing before a NYCHA Impartial Hearing Officer (IHO) within ten days of the District Chief Manager’s decision. A decision of the IHO becomes final upon review and approval by NYCHA’s Board. All issues decided at any level of a grievance may be litigated again in court. 24 CFR 966.57; but see NYCHA v. Winkler, 175 Misc.2d 1018 (A.T. 2d 1998). n.b. this has not yet been decided in the first department covering bronx and manhattan.
Challenging a Denial of Eligibility
Applicants found ineligible may request an informal hearing before an IHO. The IHO will schedule the day and time of the hearing and notify the applicant by mail. At the hearing, a representative from the Eligibility Division will present the basis for the determination of ineligibility. If found in favor of the applicant, the original applica-tion will be returned to the Department of Housing Applications for processing. The IHO’s decision is final upon written notification to the applicant.
Eviction Procedures
Non-payment of rent cases
NYCHA employs two different procedures for seeking to evict a tenant. The first procedure applies when NYCHA seeks to collect rent from a tenant who fails to pay the monthly rent on time. In that instance, NYCHA may commence a summary “non-payment of rent” proceeding in Housing Court against the tenant. An administrative hearing is not conducted in such cases, and the tenant may litigate any defense(s) to the claim of non-payment of rent in Housing Court. For tenants who are mentally disabled, the Housing Authority is
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mandated to disclose to the Housing Court judge “information indica-tive of a mental disability that could prevent the tenant from partici-pating meaningfully in the process.” Blatch et al v. New York City Housing Authority, 360 F. Supp.2d 595 (S.D.N.Y. 2005). This applies to defaults, settlements, and other appearances. NYCHA has still not implemented the Blatch decision in housing court.
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NYCHA ADMINISTRATIVE PROCEEDINGS
I. OVERVIEW OF TERMINATION OF TENANCY PROCEEDINGS
A. Governing Law and Procedures
1. Termination of Tenancy procedures set forth the grounds for termination.
a. Anyone doing a termination case should read the procedures (included in appendix).
2. The procedures were adopted to comply with federal court decisions and consent decrees. In particular, the two lawsuits brought by legal services organizations in the early and mid-1970s, because NYCHA’s termination of tenancy procedures in effect at that time did not afford due process of law to tenants:
a. Escalera v. NYCHA, 425 F.2d 853 (2d Cir. 1970), consent decree on remand docketed March 25, 1971, (67 Civ. 4307).
b. Consent decrees in Joseph Tyson Sr. v. NYCHA, and Myrdes Randolph v. NYCHA, 74 Civ. 859, 74 Civ. 1856, 74 Civ. 2556, 74 Civ. 2617 (S.D.N.Y. 1976). These consent decrees are referred to collectively as the “Tyson-Randolph consent decrees.”
B. Grounds for Termination
1. Non-desirability
a. Conduct of tenant or anyone residing with tenant that is a danger to health, comfort or safety of other tenants, or to employee or property of the Authority; e.g., criminal conduct (e.g., drugs, weapons, robberies, assaults), sex and moral offenses, or objectionable behavior (e.g., making noise or bothering tenants or employees of the Authority).
b. Tenant cannot be evicted for acts committed by someone who no longer lives in the apartment (the offending member must have vacated the household by the date of the hearing). See paragraph 14(b) of the procedures, which incorporates Tyson.
c. However, be aware that 42 U.S.C. § 37d(l)(6) provides that public housing authorities must utilize leases that provide
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that any drug-related criminal activity on or off the Authority premises, engaged in by a tenant, a member of the tenant’s household, or any guest or other person under the tenant’s control, is cause for termination of tenancy. The U.S. Supreme Court upheld the constitutionality of this lease provision in HUD v. Rucker, 535 U.S. 125 (2002). However, Rucker did not overturn the consent decrees in Escalera or Tyson.
d. 24 C.F.R. § 966.4 provides that the Housing Authority may take into account all relevant circumstances prior to evicting a family from public housing.
e. 10% of the cases filed in 2013 were non-desirability cases. Of these, 60% were brought by the NYCHA Strike Force about drug allegations. Other charges might involve allega-tions of guns, other criminal charges, disturbing the peace, or poor housekeeping.
2. Breach of the rules and regulations (the Tenant Rules and Regu-lations are included in the tenant lease, see appendix)
a. Charges based upon failure to follow the rules set forth in a rider to every lease; e.g., refusal to move down to the appropriate sized apartment (“right-sizing”); failure to allow an apartment inspection; keeping pets; unauthorized person living in the apartment; not disclosing income; subletting the apartment; or bad housekeeping.
b. Prior to termination, tenant must receive notice of the violation and an opportunity to cure.
c. Roughly 1/3 of the cases filed in 2013 were breach of rules and regulation cases. Of these, over half were non-verifiable income cases.
d. “Right-sizing”
i. NYCHA believes that many tenants (mostly seniors) are living in apartments that are too big for them, usually because their children have grown up and moved elsewhere.
ii. NYCHA states that tenants get two chances to fill out a transfer request to the development of their choice. If they don’t respond, they’re placed on a waiting list for the first appropriate-size unit that becomes available in their borough.
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iii. NYCHA’s attempts to terminate tenancies on this basis have been challenged. See, e.g., Alameda v. Rhea, 12 CV 4217 (SDNY), brought by LSNYC-Bronx, which alleges that NYCHA’s policies and practices surrounding involuntary transfers to smaller apartments violate due process because NYCHA fails to provide clear notice of the consequences of turning down proposed transfer apartments, and gives local housing project managers unfettered discretion regarding which tenants they select for involuntary transfers; fail to provide tenants with a grievance process when they are selected for an involun-tary transfer; and NYCHA’s failure to act on request to add family members to a household causes some apart-ments to be “underoccupied.”
iv. In 2013, 7% of the breach of rules & regulations cases filed were about refusal to move to the appropriate sized apartment.
3. Chronic breach of the rules and regulations
a. Repeated violation of the Authority’s rules and regulations.
b. No opportunity to cure.
4. Chronic delinquency in payment of rent (“CRD”)
a. Tenant’s repeated failure to pay rent timely: within first five days of month for an employed tenant, and within a few days of the receipt of the welfare grant for a public assistance recipient. Known as “CRD” (chronic rent delinquency) cases.
b. Do not confuse CRD cases with non-payment of rent cases, which are commenced directly in Housing Court for rent arrears owed by the tenant.
c. The NYCHA Management Manual states that NYCHA is obligated to ensure that all possible actions to improve a tenant’s rent payment history is taken before resorting to a chronic rent delinquency action. For example, have they requested a two-party or vendor check from HRA? See Manual Chapter IV(C)(3)(c).
d. Roughly half of the cases filed in 2013 were CRD cases.
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5. Non-verifiable income
a. Tenant fails, refuses or neglects to verify income to the Authority. Verification takes place at least once per year, more often if the tenant’s income fluctuates during the year.
b. In practice, if tenant submits the complete income information to NYCHA and there is little to no difference between the calculated income/rent, then NYCHA will generally with-draw the termination, or “settle” it without probation.
6. Assignment or transfer of possession
a. Tenant has vacated apartment and given possession to someone else.
b. A rarely used basis for termination (3% of the breach of rules & regulations cases filed in 2013). Generally, when a tenant has vacated her apartment and someone else is living there, the Housing Authority will bring a holdover pro-ceeding in Housing Court against the new occupant.
7. Misrepresentation
a. Tenant misrepresents her household composition or income, or any other fact bearing upon the tenant’s eligibility for or continued occupancy in public housing.
b. In practice, if after verification of income it becomes clear that the tenant would have owed substantially more rent had they properly reported their income, the case can be set-tled if the tenant can pay the amount that would have been owed had the income been properly reported.
c. However, be aware that these cases sometimes involve a criminal investigation for fraud. The tenant may have already admitted the charges in the criminal case, and that plea will affect the termination of tenancy case. NYCHA is not obli-gated to accept as a cure a partial restitution agreement entered into in the criminal case. If the amount of unpaid rent is extremely high and cannot be cured, NYCHA may still want to terminate the tenancy.
d. In 2013, misrepresentation cases account for 1.5% of the breach of rules & regulations cases filed.
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8. Violation of a previous termination case
a. A tenant who has had a termination of tenancy case brought against her in the past may still be living under requirements of that previous settlement or determination.
b. The two major types of violation cases are violation of permanent exclusion and violation of probation.
c. The only question in a violation case is whether the condi-tion was violated: the tenant may not re-litigate the original matter.
d. Depending on the charges, NYCHA will many times con-sent to an extension of probation or an extension of proba-tion with continued absence of the excluded member.
e. In 2013, only 2.5% of the cases filed were about violation of a previous settlement or determination.
9. Note: There can be overlap among the grounds (e.g., non-desirability and breach of rules and regulations); or NYCHA may allege a variety of different grounds in the Specification of Charges.
C. Procedure for Bringing Charges against the Tenant
1. Meeting with Project Manager. Housing project manager sends the tenant a letter to set up a meeting with the tenant to discuss the problem. The manager has some discretion to determine whether or not to file charges.
Caution!!! Anything the tenant says can be used against the tenant in the subsequent hearing. Manager is supposed to take all necessary steps to not have to send tenant to hearing but usually it is a rubber stamp.
NYCHA must introduce proof at the hearing that it complied with this and all other requirements set forth in the termination of tenancy procedures.
2. Tenant File Sent to NYCHA Legal Department. Project Manager sends the tenant’s file to the NYCHA Legal Department, located at 250 Broadway in Manhattan. The tenant should receive a letter from the project manager saying that the tenant’s file has been sent to the legal department for termination proceedings.
3. Notice of Hearing and Specification of Charges. The legal department sends the tenant a written notice stating the charges
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against the tenant, the facts underlying the charges, and the date of the tenant’s hearing. It must be served either personally or by certified mail. The tenant must have 15 days advance notice between the specification of charges and the hearing.
4. Tenant Answer. Tenant must contact the Authority to indicate that tenant will appear, and the tenant may answer the charges in writing.
5. Amended Charges. Sometimes a tenant will receive a second notice stating that the charges have been amended. If the charges are amended, you are entitled to another 15 days before the hearing is held.
6. Adjournments. First adjournments are easily obtained by calling the NYCHA attorney assigned to the case, or the tenant may call the hearing officer to request an adjournment. Otherwise, the tenant or her representative must go to the hearing and request an adjournment on the record, which is not a sure thing.
7. Default: If the tenant does not appear for the hearing, then a default judgment terminating the tenant’s tenancy will be awarded to the Authority.
D. Vacating Default
1. If the tenant does not appear for the hearing, a default judgment terminating the tenant’s tenancy will be awarded to the Authority and the tenant must submit a request to vacate the default judgment and re-open the case. For straightforward cases, the tenant can do this by going to the hearing office on the 2nd floor at 250 Broad-way and filling out and submitting the appropriate form. For very complex cases, an attorney or advocate may need to write the request and submit it to the hearing officer.
2. The form that is used to request to vacate a default judgment is included in the Appendix.
3. The request must include BOTH an excuse for not appearing AND a meritorious defense.
E. Preparation for the Hearing
1. Write a letter to examine the tenant’s folder. Be creative – ask for everything that could possibly be out there even if it may not be in the hands of NYCHA as we can argue it should be and/or
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NYCHA has a relationship with the agency and therefore must obtain it. In addition to the tenant folder, you may want to request files in the possession of the NYCHA Social Services Department, Inspector General, NYPD, etc., as well as any records they plan to introduce at the hearing.
An example of a letter invoking the tenant’s rights and asking to see the tenant’s folder is in the appendix materials.
Note that NYCHA may not introduce documents at the hearing that it has not given you the opportunity to review prior to the hearing (so long as you requested the opportunity to review the file).
2. Adjourn as necessary.
3. First adjournments are easily obtained by calling or faxing the NYCHA attorney assigned to the case. The NYCHA lawyer’s name, telephone number, or at least the unit’s phone number, should be on the notice of charges. Otherwise, the tenant or her representative must go to the hearing and request an adjournment on the record, which is not a sure thing. The termination of tenancy procedures require the Hearing Officer to be “liberal” in granting reasonable adjournment requests.
4. Meet with tenant to obtain any necessary documents or letters and to get all relevant facts. Explore beyond the charges to get a full picture of the situation and family. Remember that mitigating factors play a part in the disposition so be sure to get such infor-mation as disability, length of tenancy, age, innocent family members, children or elderly persons in the household.
5. Perform an investigation.
a. Visiting the apartment or scene of the alleged incident.
b. Interview witness and people who know the tenant.
c. Examine material evidence.
6. Prepare witness to testify; prepare cross-examination of the Authority’s witnesses.
7. Assemble character evidence including letters (notarized, if possible) from employers, fellow tenants, ministers, social workers, probation officers, etc. See appendix.
Oral testimony from any of the above is highly desirable.
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NYCHA may attempt to impeach the tenant’s character if you choose to introduce character evidence.
8. Issue subpoenas to compel the attendance of witnesses and production of documents (CPLR Article 23).
a. An attorney can issue a subpoena (see CPLR Article 23). CPLR Section 2302(a).
b. The hearing officer also has this power (id.) and will so-order subpoenas prepared by counsel. The hearing officer’s subpoena can be used to compel the Housing Authority to produce documents or witnesses.
c. Subpoenas for the production of government records (other than NYCHA records) or to compel attendance of an incar-cerated person must be so-ordered by a Justice of the Supreme Court. CPLR Section 2302(b).
9. Appointment of a Guardian. If client is unable to adequately represent herself, you should obtain written permission from client to disclose medical information so that a Guardian Ad Litem may be appointed, as required under the Blatch Settlement. You should make a request for the appointment of a Guardian Ad Litem in writing as well.
10. Settlement Prior to the Hearing
a. The parties may agree to settle the charges by stipulation.
i. Stipulations usually contain objectionable provisions that are beyond what the hearing officer is allowed to order: no visitation; unannounced visits; and general probation.
ii. Prior to the hearing, ask the NYCHA attorney if the scheduled date is for a hearing or a settlement discus-sion. Inquire about a settlement offer, so you can discuss it with your client before the hearing date. See sample stipulation in Appendix. Sample stipulation contains objectionable provisions: no visitation; unannounced visits; and general probation.
b. Major advantage of signing a stipulation is that the tenant is sure of the outcome of the proceeding: i.e., not termination.
c. Advocates should avoid agreeing to place a tenant on general probation for a specific offense. Probation violation should be triggered only by repetition of the specific offense.
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d. The Housing Authority’s form stipulation for excluding a member of the tenant’s household provides that the excluded person may not visit the household and allows the authority to perform unannounced visits between 9 am and 7 pm. This provision is onerous and should be kept out, if possible. A hearing office cannot order this same onerous term but could order eviction so sometimes it is worth accepting. The Appel-late Division has held that a no visitation provision is enforce-able. Romero v. Martinez, 280 A.D.2d 58, 721 N.Y.S.2d 17 (1st Dept. 2001); but cf., Holiday v. Franco, 268 A.D.2d 138, 709 N.Y.S.2d 523 (1st Dept. 2000) (holding that a prohibition against visitation is unreasonable because it imposes an impossible burden upon the tenant).
e. Avoid agreeing to probation for more than one year. A hearing officer can only grant probation up to one year.
f. Also avoid agreeing to both probation and permanent exclu-sion for the same offense. This outcome is not permitted by the Termination of Tenancy Procedures.
F. The Hearing
1. Hearings are held at the Housing Authority’s offices at 250 Broadway on the 2nd floor.
2. The hearing officer turns on a tape recorder, takes the name of everyone in the room, and reads the charges against the tenant.
3. The tenant is asked whether she admits or denies the charges. Generally, the tenant denies the charges; however, the tenant may admit some or all of the charges for strategic reasons. For example, a tenant who was convicted of a drug offense but has subse-quently rehabilitated herself may admit drug charges rather than compelling the Authority to make its case by calling police officers and introducing laboratory tests into evidence. The idea is to keep that bad testimony and evidence out of the record.
4. The Housing Authority has the burden of proof and goes first.
a. Usually the NYCHA attorney asks the project manager or housing assistant to introduce the tenant’s file into evidence and testify about the specifics of the file. If there are docu-ments that are being entered but were not in the tenant file,
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you should point this out to the hearing officer and object to the introduction of the documents into the record.
b. The Authority may offer testimony from other witnesses including police officers.
c. If the charges are based on a criminal case that was dis-missed or sealed, NYCHA may not introduce any of the sealed criminal records and the police officer may not rely on those records to refresh his memory or prepare his testimony.
5. The tenant’s attorney may cross-examine the Authority’s wit-nesses and may offer a rebuttal case, which would include direct examination of your client, other witnesses, documents and mitigating facts.
a. The rules of evidence do not apply in administrative hearings. However, object to hearsay (especially double or triple hearsay), and raise other evidentiary objections. Objections often throw off NYCHA’s attorney and witnesses, and they help make a good record if it is necessary to appeal an adverse decision to the Supreme Court.
b. Remember that the hearing is actually disposing of two separate issues that get conflated into one hearing. First, the hearing officer is being asked whether the tenant did what is alleged in the Notice. If the answer is no, the hearing is over. If the answer is yes, then the hearing officer must determine what disposition (not penalty - hearings are not meant to be punitive) to assess. This is where your mitigating factors come into play, however, you need to be careful when putting this evidence into the record if it could bolster NYCHA’s case in chief (ie NYCHA tries to evict for unregistered dog and is unable to prove you have a dog, and you argue that the dog is very mild mannered).
6. Make a closing statement. Ask for it to be in writing.
7. It is very important to make a complete record at the hearing because principles of administrative law provide that the reviewing court may not consider any evidence that was not adduced at the hearing. Featherstone v. Franco, 95 N.Y.2d 550, 720 N.Y.S.2d 93 (2000). For a court to consider evidentiary submissions as to circumstances after the Authority made its determination would violate a fundamental tenet of CPLR Article 78 review: that
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“[j]udicial review of administrative determinations is confined to the ‘facts and record adduced before the agency.’” Id.
G. Dispositions after the Hearing
1. Tenant and representative receive a copy of the hearing officer’s decision in the mail, usually within a few weeks of the hearing.
2. The hearing officer may take any of the following dispositions:
a. Termination of tenancy.
i. Tenancy is terminated.
b. Probation
i. Nothing happens unless the tenant gets into further trouble while on probation.
ii. Not more than one year.
c. Eligible subject to permanent exclusion of one or more persons in the household.
i. The tenant can remain if the offending member of the household vacates the apartment. Does not proscribe visitation.
d. Eligible.
i. No sanction.
e. Eligible with referral to Social Services.
i. Tenant must meet with a social worker from the Authority’s Social Service Department.
3. Tenant and representative receive a “Determination of Status for Continued Occupancy” from NYCHA’s Board.
a. The Board either adopts the hearing officer’s decision, or substitutes a disposition of its own (usually a more onerous sanction).
b. The NYCHA Board must issue its determination within a reasonable period of time after the hearing officer’s decision.
c. Review is limited to whether the decision of the hearing officer is contrary to law, or contains a procedural irregularity.
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d. The 4 month statute of limitations to appeal the decision to the Supreme Court begins to run when the Determination of Status is received by the tenant, usually a day or two after the notice is mailed to the tenant.
e. A notice to vacate is served. If the tenant does not vacate, the Authority commences a holdover proceeding in Housing Court to remove the tenant from the apartment.
i. Important note: The Housing Authority routinely waits four months before starting a holdover case in Housing Court. By this time, the statute of limitations to appeal the administrative termination has already passed and the tenant cannot appeal.
ii. The Housing Court judge has the power to give the tenant up to six months to move.
iii. If an Article 78 proceeding is pending, the Housing Authority may agree to a stay or a stay may be obtained on application to the Housing Court or the Supreme Court.
II. REVIEW AND APPEAL OF ADVERSE DECISION
A. Request for Reversal
1. After receiving an adverse decision, a tenant can send new evi-dence (that was not previously considered by the hearing officer) to the Housing Authority Board and request that the decision be reversed. Reversal is highly unlikely.
2. This does not stay the running of the 4 months statute of limita-tions to bring an article 78.
B. Article 78
1. The only avenue of appeal is an Article 78 proceeding in State Supreme Court. The tenant cannot collaterally challenge the hearing officer’s decision in Housing Court.
2. Statute of Limitations. The Article 78 proceeding in Supreme Court must be commenced within four months after the hearing officer’s decision is approved by the Board of the Housing Author-ity and sent to the tenant. This approval is called a Determination of Status for Continued Occupancy.
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a. It is safe to assume that the four month statute of limitation starts to run on the date that the Authority served the Deter-mination of Status upon the tenant (in fact, it starts to run one or two days later, when the tenant receives the Deter-mination of Status in the mail).
b. The only exception to the four month rule occurs when a tenancy has been terminated on default (the tenant failed to appear at the hearing). In most such cases, the status of limitations to bring an Article 78 proceeding will begin to run from a day or two after the tenant’s application to re-open the default was denied (when the tenant receives in the mail the decision denying her application). See Yarborough v. Franco, 95 N.Y. 2d 342 (2000). However, the only issue before the court is whether the hearing should have been reopened, and the SOL on the underlying findings is still 4 months from when the Board issues its decision.
3. Questions Raised. There are only four questions that may be raised in an Article 78 proceeding:
a. Whether a body or officer failed to perform a duty enjoined upon it by law (mandamus to compel).
b. Whether a body or officer proceeded, is proceeding, or is about to proceed with or in excess of its jurisdiction (prohibition).
c. Whether a determination made after an adjudicative hearing is supported by substantial evidence (certiorari).
i. If you challenge on the primary basis that there wasn’t substantial evidence, your case will be automatically transferred to the Appellate Division because the Supreme Court doesn’t hear substantial evidence cases.
d. The most important one: Whether a body or officer made a determination in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion as to the measure or mode of penalty or discipline imposed (mandamus to review/certiorari)
i. Violation of Lawful Procedure – Did the agency follow the procedures required by the relevant statures, rules, regulations, and constitutional provisions governing that particular agency? See Fair v. Finkel, 284 A.D.2d
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126 (1st Dep’t 2001) (holding where absent proof that the agency complied with the required procedures as to notice to petitioner, termination of petitioner’s Section 8 subsidy was in violation of lawful procedures).
ii. Affected by Error of Law – Did the agency improp-erly interpret or apply a statute or regulation? Courts will uphold the interpretation of statutes and regulations by the agencies responsible for their administration if such interpretation is reasonable. See Howard v. Wyman, 28 N.Y.2d 434, 438 (1971).
iii. Arbitrary and Capricious – “Arbitrary action is without sound basis in reason and is generally taken without regard to the facts.” Pell v. Board of Ed., 34 N.Y.2d 222, 231 (1974).
1. The reasonableness of the agency’s determination must be judged solely on the grounds stated by the agency at the time of its determination. If those grounds are arbitrary and capricious, the court may not uphold the determination even if the agency proffers a proper, alternative ground in the Article 78 proceeding. Scherbyn v. Wayne-Finger Lakes Bd. Of Co-op Educational Services, 77 N.Y.2d 753 (1991).
2. The court is not permitted to consider facts or claims that were not presented at the agency level. Fanelli v. New York City Conciliation and Appeals Bd., 90 A.D.2d 756 (1st Dep’t 1982).
3. It is arbitrary & capricious if an agency fails to follow its own rules and regulations in rendering a determination. See Yancy v. NYCHA, 23 Misc.3d 740 (Sup. Ct. NY Co. 2009) (holding that the hearing officer mistakenly believed and ruled that where the charges are proven, the only possible determination was termination of tenancy, when the agency’s own rules conferred discretion on the hearing officer).
iv. Abuse of Discretion – Was the penalty or discipline imposed appropriate under the circumstances? There is significant overlap between the abuse of discretion and the arbitrary and capricious standards. Courts use the
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abuse of discretion standard to review the measure of punishment imposed by administrative agencies.
1. Sanction must be upheld unless it shocks the judi-cial conscience and constitutes an abuse of discretion as a matter of law. Featherstone v. Franco, citing Matter of Pell.
2. Courts will set aside a determination where the “punishment or discipline imposed is so dispro-portionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.” Pell v. Bd of Ed. A punishment is “shocking to one’s sense of fairness” “if the sanction imposed is so grave in its impact … that it is disproportionate to the misconduct ... of the individual, or to the harm or risk of harm to the agency.” Id., 356 N.Y.S.2d at 842.
4. If the tenant cannot obtain an attorney to bring the Article 78 proceeding on the tenant’s behalf, the tenant may seek help and forms from the pro se attorney in the Supreme Court.
III. KEY LEGAL ISSUES
A. Tenants with Disabilities
1. Reasonable Accommodations Under the Law
a. Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12131, et seq., Section 504 of the Rehabilita-tion Act of 1973 (“Section 504”), as amended, 29 U.S.C. § 794, and the Fair Housing Amendments Act (“FHAA”), 42 U.S.C. § 3604, require reasonable accommodations in rules, policies, practices, or services, when such accommo-dations may be necessary to afford such person equal oppor-tunity to use and enjoy a dwelling. Persons with mental disabilities are disabled persons covered by the ADA, Section 504 and the FHAA, and may be entitled to reasonable accommodations.
b. Some examples of reasonable accommodations are:
i. heavy duty cleaning for tenants who are charged with poor housekeeping
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ii. financial management and direct vender payments for tenants who are charged with chronic rent delinquency and/or non payment of rent.
iii. referrals for mental health assistance;
iv. transfer for a tenant who is having conflicts with neighbors;
v. outreach to family members, social workers, or other mental health professionals who are working with the tenant for assistance.
vi. a re-opening of defaults which were caused by mental disability
vii. installation of drop ceiling or carpets to address noise complaints;
viii. absorbing some repair costs.
2. NYCHA’s History
a. For years, NYCHA held administrative hearings without any regard for the rights of mentally disabled residents. The Legal Aid Society sued NYCHA in Blatch v. Franco, alleging that the Housing Authority’s failure to provide guardians ad litem for these tenants violated due process.
b. The Blatch litigation was settled by so-ordered stipulation in October 2008. The settlement requires that NYCHA follow certain procedures when commencing (i) termination of tenancy proceedings and (ii) housing court proceedings against mentally disabled tenants. NYCHA’s procedures require that it cannot proceed with a termination case against a tenant who is mentally disabled without a guardian ad litem. NYCHA must refer a person which it suspects of being mentally disabled to its Social Services department for a Mental Health Evaluation and for the appointment of a GAL. Additionally, NYCHA must notify the judge in a housing court case if it believes a tenant is mentally disabled and in need of a GAL by issuing a Special Court Notice and filing it with the court.
c. The requirements of the Blatch settlement were originally laid out in GM 3630 and then were superseded by GM 3742 (which has recently been amended).
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d. The Appellate Division 1st Department in Padilla v. Martinez, 300 A.D.2d 96 (1st Dep’t 2002), has held that the Housing Authority’s failure to follow the procedures in GM 3630—the original GM—is a violation of the tenant’s due process rights. The Court vacated the determination and remanded the proceeding for a new hearing.
3. GM-3742: NYCHA’s Procedure for Assessing Mental Competence
a. GM-3742 sets forth the procedures for assessing the mental competence of tenants in termination proceedings and remain-ing-family-member claimants, as well as appointing Guardians Ad Litem (GAL) for those tenants or claimants.
b. The GM-3742 procedures do not apply to tenants who have an Article 81 guardian.
c. A housing manager should refer a tenant to the NYCHA Social Services Department for an evaluation if s/he “knows, through personal knowledge, documents in the tenant file, or information conveyed” to NYCHA that within the last year the tenant
i. Has been hospitalized for mental illness;
ii. Has been represented by a GAL because of a mental condition;
iii. A mental health professional has declared in writing that the tenant may be incapable of participant in legal proceedings;
iv. Has received services from APS because of a mental condition;
v. Receives SSI or Social Security for a mental condition;
vi. Declared on his/her most recent annual affidavit of income that s/he has a mental disability;
vii. Has exhibited seriously confused or disordered thinking.
d. The Law Department or Hearing Officer may also inde-pendently seek the appointment of a GAL or refer a tenant for Social Services evaluation if it appears a tenant may not be competent because of a mental condition.
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e. NYCHA Social Services must perform an evaluation of the tenant’s mental competence within 30 days, set forth any relevant information in a report, and recommend whether or not a GAL should be appointed.
f. Under NYCHA’s standard for mental competence, a tenant who is mentally competent is able to:
i. Understand the nature of the proceedings;
ii. Adequately protect and assert his/her rights and interests.
g. Appointment of a GAL
i. If Social Services determines the tenant requires a GAL, the Law Department must ask for a GAL to be appointed. The hearing may not proceed until a GAL is appointed.
ii. The NYCHA hearing office will request names of pro-spective GALs from the Civil Court and then appoint one by written notice.
iii. The Law Department must provide the hearing officer and GAL with a copy of the completed mental compe-tence evaluation request and Social Services reports before proceeding with a hearing or requesting a deci-sion on default.
h. Grounds to Vacate Defaults and Stipulations
i. The hearing officer may vacate defaults and stipula-tions of settlements on the grounds that the tenant was not competent at the time of the default or stipulation.
B. Issues/Defenses in Non-Desirability Cases
1. The non-desirable conduct which is the subject of the termination proceeding could be the conduct of (1) the tenant, or (2) another household member, or, (3) a guest or non-household member. Generally this conduct results in an arrest which alerts NYCHA to the problem. The defense strategy will depend on the offender’s relationship to the family.
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2. Advocacy tips:
a. If the “non-desirable” conduct is that of a family member who was not living with the tenant at the time of the arrest, the housing authority cannot legally impose any penalty on the tenant. (Might be hard to prove a negative—ie, “he doesn’t live here” but the burden is on NYCHA to show that he does.
i. However, be aware that if the offender gave tenant’s address, or had an ID showing tenants address, then burden shifts to tenant to prove address.
b. If the “non-desirable” conduct is that of a household member, advocates must consider whether the conduct is likely to support a termination (violent crime, drugs, guns). When NYCHA is not willing to sign a probationary stipulation, it means that they will likely ask for a penalty of termination at the hearing. If the offending family is still in the household at the time of the hearing, the hearing officer will almost certainly terminate the tenancy.
i. In this situation, the tenant can generally save their ten-ancy by “permanently excluding” the offending member. This is a harsh penalty, due to its permanence, and should not be agreed to unless necessary to save the tenancy.
c. If the “non-desirable” person is the tenant, the option of probation is generally offered if it is their first offense.
i. Remember that if the tenant plead guilty in the criminal case, it is harder to argue that you’re not precluded from litigating about whether or not the tenant commit-ted the act.
ii. If the charges against the tenant were dropped or dismissed:
1. NYCHA can still move forward and attempt to terminate the tenancy because the civil standard of proof is lower.
2. All records relating to the criminal case (including police notes) are sealed if the case was dismissed or dropped, or ended in a non-criminal disposition (a violation).
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3. If the charges are based on an incident in which a police is the only witness this generally means that NYCHA will not be able to prove its case unless the police officer can show that he has an inde-pendent recollection of the events which led up to the arrest.
4. NYCHA may try to introduce the unsealed criminal records of a co-defendant.
iii. The tenant may present character evidence or proof that her tenancy was previously unblemished, and may make a statement in mitigation prior to the close of the hearing. Termination Procedures at Subdivision B(5)(e-f).
C. Chronic Rent Delinquency
1. Under the NYCHA management manual, chronic rent delinquency is the repeated refusal of the tenant to pay rent within the month when due. NYCHA Mgmt Manual, Chapter IV(C)(3(c)(3).
2. Many times NYCHA institutes termination proceedings for CRD when the rent has been paid within the month due, but is paid in the middle or end of the month. This is not CRD as defined by the management manual.
3. The manual also requires NYCHA to take “all possible action to improve the tenant’s rent paying record” before a CRD case is instituted. NYCHA Mgmt Manual, at Chapter IV(C)(3)(c). It can be argued that this includes a diligent effort by NYCHA to deter-mine the source of the problem and attempt to help the tenant rectify it.
4. Advocacy Tips:
a. Check the rent breakdown—make sure the calculations are sound. They are generally wrong.
b. Check NYCHA’s rent records against your client’s receipts to make sure the payments have been credited to the right months.
c. Look through the NYCHA file to confirm the management office was proactive and attempted to assist the tenant before the proceeding is commenced, as required by the manage-ment manual.
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d. Ask the tenant about conditions in the apartment—document any possible warranty of habitability claim and any/all notifications/request made to NYCHA regarding the repairs.
e. Adjourn the case as long as possible while your client is paying the rent on time. After 12 months of current payment NYCHA will generally withdraw the CRD case.
IV. ADMINISTRATIVE GRIEVANCE BROUGHT BY TENANT
A. What is a Grievance?
1. Residents with grievances against NYCHA may use the grievance procedure, including persons alleging to be remaining family members. Policy questions, class grievances, inter-tenant conflicts, personal injury, damage claims or commercial tenants are not allowed.
B. Grievance Procedure
1. A tenant initiates a grievance by discussing the problem with the Housing Manager, who must prepare and send to the tenant a summary of the discussion. A resident may grieve the failure to give a reasonable accommodation. You may ask for a stay of a termination case while the grievance on the reasonable accom-modation request is pending.
2. A tenant who is dissatisfied with the Manager’s decision may file a written request for District Office review within ten working days after receipt of the Grievance Summary. Within 10 working days of the tenant’s request, the District Chief Manager must review the grievance and inform the tenant and Housing Manager in writing of the determination. A grievance regarding remaining family member status will generally proceed only to this second step of the grievance process unless the tenant can make a sub-stantial showing of the right to succeed to the apartment.
3. If the District Chief’s review was unfavorable, the tenant may request a formal hearing before a NYCHA Impartial Hearing Officer (IHO) within ten days of the District Chief Manager’s decision.
4. A decision of the IHO becomes final upon review and approval by NYCHA’s Board. The NYCHA board’s review of grievances
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is limited to whether the correct legal standard was applied. All issues decided at any level of a grievance may be litigated again in court. See 24 CFR § 966.57; but see NYCHA v. Winkler, 175 Misc.2d 1018 (A.T. 2d 1998).
C. RFM—Remaining Family Member
1. Only people who have lived in the apartment as authorized household members for at least 1 year prior to the death/departure of the tenant of record are eligible to claim Remaining Family Member status.
2. Because of this, it is crucial that the tenant of record get prior written authorization to add family members moving in with them.
a. You can only add: spouse; son / daughter; stepson / step-daughter; father / mother or stepmother / stepfather; brother / sister; grandmother / grandfather; grandson / granddaughter; or son / daughter-in-law or mother / father-in-law.
b. You can NOT add cousins, nieces or nephews unless you have legal guardianship of them.
c. See TAP Housing Answers guide, “Adding Someone to Your Lease.”
3. Tenants living in an apartment where the tenant of record has died or moved need to:
a. Inform the management office right away, and bring the appropriate documentation (death certificate, notice to vacate by tenant of record, etc.)
b. Submit a Remaining Family Member grievance to the man-ager: a letter stating that s/he is claiming remaining family member status, and want to get a lease for the apartment issued in his/her name.
c. A criminal background check will be performed on all remaining family members who are at least 16 years of age.
d. Rent issues: If the RFM claimant’s household income is less than the household income of the prior tenant of record, then s/he should request in the grievance so that the rent can be re-calculated and lowered, based on his or her income. Claimant will need to provide up to date proof of income.
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While the grievance is in process, NYCHA should charge as rent whichever is lower: the rent paid by prior tenant of record, or a lower rent, based on claimant’s actual income.
4. RFM grievances follow the same process as other grievances (i.e., project manager level, followed by review at Borough Director level, followed by an Informal Hearing in front of a hearing officer at 250 Broadway). If NYCHA has already started a licensee holdover in Housing Court, they will usually agree to postpone the case until the grievance process is resolved (or you can ask the Housing Court judge to postpone the proceeding).
D. Rent Grievance
1. NYCHA sets a tenant’s rent each year after they submit their affidavit of income which details the income the household is currently receiving. Rents are roughly 30% of income, minus some deductions. If the tenant believes that the rent is set incor-rectly, they can ask for a rent grievance.
2. There is not a formal procedure for rent grievances, per se, however, like the other grievances, tenants must first ask for the rent adjustment at the project level. If the rent is not adjusted properly, they can appeal to the borough and then to 250 Broadway for a hearing in front of an Impartial Hearing Officer. (See Part V above).
E. Request to Remove Permanent Exclusion
1. The head of household may request that a household member who was permanently excluded be allowed back in to the household.
2. The tenant must submit an application (included in appendix materials) showing that a substantial change has occurred so that permanent exclusion is no longer necessary.
3. For example, the person has been rehabilitated as shown by gainful employment, educational achievement, drug rehabilitation, etc.
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V. POST-TERMINATION HOUSING COURT
A. General Holdover based on termination of tenancy
1. Brought against tenant after tenant has lost termination pro-ceeding at 250 Broadway.
2. No defense to the merits of the case since tenancy already ended.
3. Where there is evidence of serious drug-related activity in apartment, NYCHA can bypass administrative termination of tenancy process and go straight to Housing Court on holdover.
B. Licensee Holdover
1. Another type of holdover arises when the tenant of record is no longer in the household.
2. Occupants of apartments who are trying to exert Remaining Family Member claims may face licensee holdover proceed-ings if NYCHA is disputing their RFM claim. NYCHA will generally adjourn a holdover case pending an RFM grievance without motion practice. See section above on Remaining Family Members.
C. Note: There are two other types of NYCHA cases that can appear in housing court: Illegal Use holdovers under RPAPL §§ 711(5) and 715(1), and non-payment proceedings. In both of these situa-tions, no administrative proceeding is required before filing the case in Housing Court.
VI. CURRENT STATE OF THE LAW
A. Termination of Tenancy – Disproportionate Penalty
1. Rule
a. Termination may be reversed if the penalty imposed was so disproportionate in the light of all the circumstances, as to be shocking to one’s sense of fairness. Matter of Pell v. Board of Educ., 34 NY2d 222, 233.
2. Good Cases:
a. Rock v. Rhea, 114 A.D.3d 578 (A.D. 1 Dep’t 2014). Tenant yelled and cursed at housing assistant in NYCHA manage-ment office, threw phone at her. Termination vacated as penalty that is shocking to the conscience, as in other cases
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of tenants engaging in fits of rage targeted at NYCHA employees, where the conduct was isolated or specifically related to circumstances that gave some explanation for the behavior. Case remanded to NYCHA for imposition of lesser penalty.
b. Peoples v. NYCHA, 281 A.D.2d 259 (N.Y.A.D. 2001). Termination on grounds of non-desirability vacated as dispro-portionate even where tenant physically confronted and accosted the NYCHA employee during an inspection of her apartment for repairs. Court noted that “petitioner experi-enced “considerable frustration” because of the inspector’s refusal to acknowledge that her apartment was in almost constant need of repair; furthermore, petitioner suffered more distress as a result of the altercation than did the inspector, who was not seriously injured and required no medical attention, and petitioner has had an otherwise blemish-free, 24-year tenure in public housing.”
c. Matter of Spand v. Franco, 242 A.D.2d 210 (A.D. 1997). Penalty disproportionate where tenant had three minor children, had lived in public housing for four years, incident was serious but isolated, tenant had had no other violations, there was no indication that she posed a risk to other tenants or the NYCHA property.
3. Bad Cases:
a. Matter of Perez v. Rhea, 2013 Slip Op 00953, NY Ct. Appeals. The COA reverses AD and holds that the penalty of termination in this case was not so disproportionate to be shocking to one’s sense of fairness. Here NYCHA tenant underreported her income resulting in NYCHA’s over-subsidizing her by approximately $27,144. In criminal pro-ceeding tenant agreed to pay this back. COA holds that AD jumped to conclusion that the household would be homeless if evicted, without any evidence of this offered on record.
b. Matter of Grant v. NYCHA, 2014 NY Slip Op 02869, AD, 1st Dep’t. Affirms hearing officer’s decision terminating tenancy for breach of permanent exclusion. Here the AD finds substantial evidence supporting hearing officer’s finding credit-ing police officer’s testimony that excluded sex offender was found in closet of petitioner after petitioner denied he
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was in the apartment. AD rejects Bronx Defender’s argument that due process mandates hearing officer advise tenant of her right to present evidence in mitigation of termination (both as not properly before them and in dicta, on the merits).
c. Matter of Prado v. NYCHA, 2014 NY Slip Op 02710, AD, 1st Dep’t. Dismisses article 78 terminating transferred by J. Stallman. Tenant sought to challenge termination of her ten-ancy for non-desirability for selling crack cocaine out of her apartment. Here the criminal charges had been dismissed, however the hearing officer was found to have properly credited police officer’s testimony of what was found when search warrant was executed as well as his testimony that he witnessed drug transactions taking place out of kitchen window.
d. Matter of Dubose v. NYCHA, 2014 NY Slip Op 00166, AD, 1st Dep’t. Affirms J. Bluth’s denial of article 78 which challenged termination of tenancy based on non-desirability. Here an elderly, paralyzed, wheel chair bound man pled guilty to drug and gun related charges and despite mitigating factors, AD finds that penalty of termination does not shock the conscience.
e. In Re Moore v. Rhea, 2013 NY Slip Op 07420, AD, 1st Dep’t. Upholds determination of termination of NYCHA tenancy based on chronic rent delinquency. Here tenant was pro se at hearing and failed to raise breach of warranty or other technical issues below. Additionally, AD holds it was not error for AHO to deny reconsideration after attorney wrote that tenant was current in rent and raised other issues. AD holds there is no entitlement to request reconsideration, fact that tenant later became current in rent is irrelevant and that termination doesn’t shock the conscience.
f. Hill v. NYCHA, 2013 NY Slip Op 07437 AD, 1st Dep’t. Reverses J. Wright who granted article 78 and remanded non-desirability termination hearing. AD treats case as trans-ferred to them on issue of substantial evidence and upholds termination. Here tenant was arrested in her apt with 53 bags of heroin. She testified at hearing that seven months after rehab she maintained her sobriety. AD holds that despite this, penalty of termination is not excessive.
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g. Johnson v. NYCHA, NY Slip Op 07666, AD, 1st Dep’t. Affirms finding of termination of tenancy for non-desirabil-ity after hearing where search warrant recovered marijuana and guns. Court finds no basis to disturb credibility finding of hearing officer and that termination does not shock the conscience.
B. Remaining Family Member
1. Cases:
a. Roberts v. Rhea, 2014 NY Slip Op 00952, AD, 1st Dept vacates J. Billing’s decision denying article 78 which denied remaining family member grievance after hearing. Here AD vacates decision because an issue of substantial evidence was raised so the case should have been transferred to them. They affirm hearing officer reviewing record de novo. Issue here was evidence of rehabilitation for putative successor who had an A felony drug conviction. AD holds decision denying succession was rationally based.
b. Matter of Jones v. Rhea, NYLJ Decision #1202643058969 NY Co Sup Ct. In Article 78, Judge Schlesinger vacated a default in a termination proceeding and remanded the case to NYCHA to process a remaining family member grievance. The court distinguishes the McLaughlin case and holds that tenant can assert her remaining family member rights despite her mother’s default at a termination proceeding.
c. Matter of Toussaint v. NYCHA, NYLJ 2/5/2014, decision # 1202641218665, Sup Ct. NY Co J. Ling-Cohan denies article 78 challenging denial of remaining family member grievance. Here petitioner was the brother of tenant who alleges he co-resided with her since 2005 to take care of her, but was never on household composition or listed on recertifications.
d. In re Salvador Gonzalez v. NYCHA, 2013 NY Slip Op 08532, AD, 1st Dep’t dismisses article 78 transferred by J. Kern. Petitioner challenged the denial of his remaining family member claim as he asserted NYCHA had implicit knowledge of his presence. AD holds this is not a basis to disturb HO’s findings that his mother never sought NYCHA’s permission to add him to her household.
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e. Matter of Alonzo v. NYCHA, 2013 NY Slip Op 32411(U), NY Co Sup Ct. J. Ling-Cohan denies article 78 challenging remaining family member rights as tenant of record as peti-tioner was not on her mother’s income affidavits.
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NOTES
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I - 1
Index
C
Common New York State/City Rental Subsidies Important to Low-Income Clients
HIV/AIDS services administration, 34–42
SCRIE and DRIE NYC rent freeze programs, 29–34
Section 8 program, 23–29
F
Faculty Bios Afua Atta-Mensah, 15 Ann Ascher, 16 Jane Landry-Reyes, 17 Kamilla Sjödin, 19 Lucy Newman, 18
H
Housing Court 101 cases, types, 48 defenses to alleged non-payment and
holdover actions, 50 introduction, 47 New York City Civil Court Act
Section 110, 57–61 Section 204, 79
New York City Council File # INT 0129-2014, 67–69 # INT 0627-2007, 71–76
New York real property actions and proceedings law Section 711, 63–64 Section 713, 65–66
New York Real Property Law Section 233-b, 85–87 Section 234, 77
New York Univ. v. Farkas, 81–83
post settlement or hearing considerations, 51–55
preparing papers, discovery, case preparation, 49–50
procedural issues, 48–49 settlement possibilities, 51
Housing Law 101 answer, 99 answer forms, 100 anti-tenant harassment law, 124 commencing a case, 119 common settlements, 111 defenses
holdovers, 108 nonpayments, 107
getting a court date, 104 holdovers, 101 Housing Court, 93 HP actions and warranty of
habitability, 117 HPD inspection request, 120–123 introduction, 92 Marshal’s notice/notice of eviction,
113 non-payment cases, 94 notice of petition and petition, 96–97 NYC, types, 105–106 order to show cause, 114–115 postcard, 98 predicate notice(s), 102 predicate notice-rent demand, 95 relief, 125 rental assistance in NYC, types, 116 repairs, 118 sample 30 day notice of termination,
103 service of papers, 109 stipulations of settlement, 110 trial, 112
N
NYCHA Housing and NYCHA Administrative Proceedings
administrative proceedings administrative grievance, tenant,
181–183 current state of the law, 184–188 key legal issues, 175–181 post-termination Housing Court,
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191
I - 2
review and appeal of adverse decision, 172–175
termination of tenancy, 161–172
housing annual and interim
recertifications, 153–156 application process, 138–142 calculating annual income,
146–151 eligibility criteria, 129–135 eviction and grievance
procedures, 158–160 family composition rules and
remaining family members, 151–152
priorities, 135–138
setting rent, 142–146 tenant transfers, 157–158
P
Program Schedule common New York State/City rental
subsidies important to low-income clients, 9
Housing Court 101: practice tips for attorneys representing tenants, 9
New York City Housing Authority (NYCHA) administrative proceedings - where to begin when representing NYCHA tenants or clients seeking to be NYCHA tenants, 10
NYCHA Housing and (Cont’d)
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