SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION FIRST DEPARTMENT

Transcription

1 New York County Clerk s Index No /12 To Be Argued By: Andrew M. Lupin SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION FIRST DEPARTMENT In the Matter of the Application of CLARA JOSEFINA RUSSO, Petitioner-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, against NEW YORK CITY HOUSING AUTHORITY, Respondent-Appellant. RESPONDENT-APPELLANT S REPLY BRIEF DAVID I. FARBER General Counsel Nancy M. Harnett, Of Counsel Andrew M. Lupin, Of Counsel New York City Housing Authority 250 Broadway, 9th Floor New York, NY (212) Andrew.Lupin@nycha.nyc.gov Attorneys for Respondent-Appellant Reproduced on Recycled Paper

2 TABLE OF CONTENTS Page PRELIMINARY STATEMENT... 1 I. PETITIONER RECEIVED ALL THE DUE PROCESS TO WHICH SHE WAS ENTITLED... 3 A. Petitioner s GAL Provided Meaningful Assistance... 4 B. The Housing Authority s Mental Competency Procedures Are Not Illusory C. The Hearing Officer Was Not Required to Develop the Record II. III. PETITIONER IS INELIGIBLE TO SUCCEED TO EFRAIN S LEASE PETITIONER S PURSUIT OF SANCTIONS IS MERITLESS CONCLUSION i

3 TABLE OF AUTHORITIES Page Federal Cases Blatch v. Hernandez, 2008 U.S. Dist. LEXIS (S.D.N.Y. Oct. 10, 2008) (LTS) Goldberg v. Kelly, 397 U.S. 254 (1970)... 3 Mathews v. Eldridge, 424 U.S. 319 (1976)... 4 Morrissey v. Brewer, 408 U.S. 471 (1972)... 3 Turner v. Rogers, 131 S. Ct (2011) State Cases Abdil v. Martinez, 307 A.D.2d 238 (1st Dep t 2003) Aponte v. New York City Hous. Auth., 48 A.D.3d 229 (1st Dep t 2008) Baywood Elec. v. New York State Dep t of Labor, 232 A.D.2d 553, 554 (2d Dep t 1996) Chandler v. Rhea, 103 A.D.3d 427 (1st Dep t 2009) Curry v. New York City Hous. Auth., A.D.3d, 2015 N.Y. App. Div. LEXIS 645 (1st Dep t Jan. 26, 2015) Dancil v. New York City Hous. Auth., A.D.3d, 2014 N.Y. App. Div. LEXIS 8405 (1st Dep t Dec. 4, 2014) Detres v. New York City Hous. Auth., 65 A.D.3d 442 (1st Dep t 2009) Earl v. Turner, 303 A.D.2d 282 (1st Dep t 2003) ii

4 Page(s) State Cases (continued) Featherstone v. Franco, 95 N.Y.2d 550 (2000), aff g 269 A.D.2d 109 (1st Dep t Feliz v. Wing, 285 A.D.2d 426 (1st Dep t 2001) Feliz v. Wing, 2000 N.Y. Misc. LEXIS 673 (Sup. Ct. N.Y. Co. Feb. 1, 2000) (Schlesinger, J.) Filonuk v. New York City Hous. Auth., 84 A.D.3d 502 (1st Dep t 2011) Grant v. New York City Hous. Auth., 116 A.D.3d 630 (1st Dep t 2014) Gutierrez v. Rhea, 105 A.D.3d 481 (1st Dep t 2013)... 19, 20 Hendry v. D Elia, 91 A.D.2d 663 (2d Dep t 1982) Howard v. Wyman, 28 N.Y.2d 434 (1971) In re Delio, 290 A.D.2d 61 (1st Dep t 2001) In re Dinhofer, 257 A.D.2d 326 (1st Dep t 1999) In re Golub, 190 A.D.2d 110 (1st Dep t 1993) In re Hayes, 7 A.D.3d 108 (1st Dept. 2004) In re Holtzman, 78 NY2d 184 (1991) In re Wisehart, 281 A.D.2d 23 (1st Dep t 2001) Jackson v. Hernandez, 63 A.D.3d 64 (1st Dep t 2009)... 13, 14 Kunstler v Galligan, 168 A.D.2d 146 (1st Dep t 1991) Marine Terrace Assocs. v. Kesoglides, 44 Misc. 3d 141(A) (App. Term 2d Dept. 2014) iii

5 Page(s) State Cases (continued) McFarlane v. New York City Hous. Auth., 9 A.D.3d 289 (1st Dep t 2004)... 19, 20 Mexico Leasing LLC v. Jones, 45 Misc. 3d 127(A) (App. Term, 2d Dep t 2014) Moore v. Rhea, 111 A.D.3d 445 (1st Dep t 2013) Murphy v. New York State Div. of Hous. & Cmtv. Renewal, 21 N.Y.3d 649 (2013) Nat Kagan Meat & Poultry, Inc. v. Gerace, 118 A.D.2d 1043 (3d Dep t 1986) Pagan v. Rhea, A.D.3d, 2014 N.Y. App. Div. LEXIS 8192 (1st Dep t Nov. 25, 2014) Peconic Bay Broad. Corp. v. Bd. of Appeals, 99 A.D.2d 773 (2d Dep t 1984) People v. Benevento 91 N.Y.2d 708 (1998)... 8 Perez v. Rhea, 20 N.Y.3d 399 (2013) Rivera v. New York City Hous. Auth., 107 A.D.3d 404 (1st Dep t 2013) Santiago v. New York City Hous. Auth., 122 A.D.3d 433 (1st Dep t 2014) Schnurr v. Perales, 115 A.D.2d 740 (2d Dep t 1982) Vereen v. New York City Hous. Auth., A.D.3d, 2014 N.Y. App. Div. LEXIS 8494 (1st Dep t Dec. 9, 2014) iv

6 PRELIMINARY STATEMENT At issue in this appeal is whether Petitioner-Respondent Clara Josefina Russo ( Petitioner ) should succeed to the tenancy of her deceased estranged husband, Efrain Plumey ( Efrain ), even though Respondent-Appellant New York City Housing Authority ( Housing Authority ) established Efrain never requested, much less obtained, written permission to permanently add Petitioner to his household and never listed her as an occupant of his apartment on his annual affidavits of income. Consistent with its mental competency procedures, the Housing Authority appointed a guardian ad litem ( GAL ), Ellis Shratter ( Shratter ), to assist Petitioner at the hearing. By decision, order, and judgment of the Supreme Court, New York County (Schlesinger, J.), dated May 19, 2014 ( Judgment ), the lower court remanded the matter to the Housing Authority for a new hearing, holding the Housing Authority violated Petitioner s due process rights and applied its written permission requirement to this case in an arbitrary and capricious manner. Unable to show Petitioner is qualified for succession rights in accordance with any reasonable interpretation of the Housing Authority s remaining-familymember policy, Petitioner argues the Housing Authority should disregard her lack of a paper trail and make an exception for Petitioner based on other circumstances, such as her age, physical afflictions, church-going habits, and 1

7 familiar[ity with the] environment. It would be the very definition of arbitrary and capricious if the Housing Authority overlooked compliance with its writtenpermission policy and awarded leases to individuals who suddenly appear in the apartments of deceased tenants based on how likeable, religious, or sympathetic they are. The Housing Authority must consistently enforce its written permission requirement in order to preserve the integrity of its waiting list, which contains hundreds of thousands of people who may be just as sympathetic as Petitioner. Throughout her responsive brief, Petitioner criticizes the performance of the GAL and the Hearing Officer at the hearing, insisting they failed to adequately assist Petitioner. However, despite Petitioner s hyperbolic condemnation of Shratter s abilities, this Court need only read the transcript of the administrative hearing to see Petitioner received meaningful due process. There is no basis for Petitioner s assertions the GAL was unprepared for or incapable of providing assistance, and the Hearing Officer was not required to advocate on Petitioner s behalf or further develop the record. Even assuming, as Petitioner asserts, there were flaws in Shratter s presentation of the evidence at the hearing, remand would be futile because Petitioner cannot point to any omitted facts that would entitle her to succession rights. As the Housing Authority demonstrated in its appellate brief, this Court 2

8 consistently has upheld the Housing Authority s written-consent requirement and rejected Petitioner s argument that other circumstances should supersede it. Instead of addressing the arguments the Housing Authority raised in its appellate brief, Petitioner accuses the Housing Authority s counsel of reckless, defamatory, and unprofessional conduct. Petitioner s counsel is attempting to distract this Court from the weakness of her legal arguments by resorting to character assassination, just as she has done throughout this entire proceeding with respect to the GAL and Hearing Officer. POINT I PETITIONER RECEIVED ALL THE DUE PROCESS TO WHICH SHE WAS ENTITLED Citing Goldberg v. Kelly, 397 U.S. 254 (1970), and Morrissey v. Brewer, 408 U.S. 471 (1972), Petitioner contends the opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard. Brief for Petitioner-Respondent ( Pet. Br. ) 17 (quoting Goldberg, 397 U.S. at ). 1 Inasmuch as the Housing Authority complied with its mental competency procedures and appointed a GAL to assist Petitioner at the hearing, it 1 Both the cases Petitioner cites stand for the proposition due process is satisfied if an individual receives an evidentiary hearing before certain benefits are terminated. See Goldberg, 397 U.S. at (welfare recipients must be afforded hearings before their welfare benefits are terminated); Morrissey, 408 U.S. at 485 (convicts must be afforded hearings before their parole is revoked). Here, the Housing Authority not only provided Petitioner with a full evidentiary hearing, it permitted her to appear in person to assert her grievance at two additional informal conferences prior to the hearing. See Record on Appeal ( R ) , 340, 344,

9 unquestionably tailored its administrative grievance process to Petitioner s capacities. That is precisely why its mental competency procedures exist in the first place. Notwithstanding Petitioner s counsel s groundless critique of Shratter s performance at the hearing, Petitioner received the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Petitioner s counsel s presumption Shratter may have presented a better case at the hearing if he were an attorney cannot change the fact Petitioner received due process. As the Housing Authority established in its appellate brief, the transcript of the administrative hearing reveals that Petitioner s contention she did not receive due process is pure fiction. See R A. Petitioner s GAL Provided Meaningful Assistance Throughout her responsive brief, Petitioner belittles Shratter s intelligence, preparedness, and competence and insists he was fundamentally incapable of serving as Petitioner s GAL. See Pet. Br. 9 (proclaiming Shratter was unprepared, and lacks factual, legal and procedural knowledge sufficient for the protection of the ward ); Pet. Br. 36 (asserting Shratter lacks knowledge, skill, and training and claiming he does not possess the background or knowledge that would equip him for the undertaking presented ). For several reasons, none of Petitioner s assertions has merit. 4

10 First, there is nothing in the record to support Petitioner s claims about Shratter s background, experience, or level of preparedness. Aside from describing him as a non-attorney, Petitioner has pointed to nothing suggesting he lacked familiarity with administrative proceedings, the skills necessary to serve as a GAL, or the ability to assist a mentally incompetent grievant. Petitioner s counsel does, however, include an inflammatory footnote in which she states Deputy Chief Administrative Fern Fisher has since barred [Shratter] from the list of GALs. 2 See Pet. Br. 4 n.3. This prejudicial claim is outside the record because it relates to circumstances that took place long after the lower court issued its Judgment. See Featherstone v. Franco, 95 N.Y.2d 550, 554 (2000), aff g 269 A.D.2d 109 (1st Dep t 2000) ( for a court to consider evidentiary submissions as to circumstances after the Authority made its determination would violate another fundamental tenet of CPLR article 78 review ). In any event, the Office of Court Administration s apparent removal of Shratter from its list of qualified GALs is irrelevant because he was on the list when he served as Petitioner s GAL and the 2 Despite describing Shratter s removal from the GAL list as a subject she has not had an opportunity to investigate or explore in relation to this hearing, Petitioner s counsel nonetheless believed it was appropriate to raise the subject in her brief. See Pet. Br. 4 n.3. Notwithstanding her claims of ignorance, Petitioner s counsel is fully aware Judge Fisher removed Shratter from the GAL list in response to his request to be appointed in more cases in which he would receive compensation. Indeed, Petitioner s counsel attached Judge Fisher s October 24, 2014 letter informing Shratter of his removal from the GAL list, which explained the basis for his removal, to an affirmation she submitted to this Court in support of her request for an enlargement of time. See Petitioner s Attorney Affirmation in Support of Application to Enlarge Time from January Term to April 2015 at Exhibit D. 5

11 hearing transcript demonstrates he ably performed his duties on Petitioner s behalf during the hearing, regardless of anything that may or may not have happened after the hearing. See R 365 (appointing Shratter in consultation with the New York State Office of Court Administration ); R Second, there is no basis for Petitioner s counsel s assertion Shratter lacked first-hand knowledge or contact with potential witnesses. Pet. Br. 5. He testified he obtained the information he presented directly from Efrain s tenant folder and Petitioner herself. See R 387:14-23 (Shratter confirming he had sufficient time to review the tenant folder); 391:20 (Shratter testifying he got this information from Ms. Russo ). Despite Petitioner s counsel s claim the record discloses no such effort to contact various individuals Petitioner s counsel guesses might have been able to provide relevant testimony (see Pet. Br. 25), nothing in the record suggests Shratter had not assessed the viability of other potential witnesses. Petitioner s counsel, in contrast, acknowledged she did not speak to any potential witnesses or even Petitioner before making sweeping unsupported assertions about the supposed facts of this case; her source of information was Shratter. See R ( All statements made herein are based on the files of the Court and on conversations with [Petitioner s] former Guardian ad Litem. ). Given that Petitioner s counsel s statements to the lower court were based exclusively on information provided by 6

12 Shratter, she cannot credibly contradict the veracity or reliability of Shratter s testimony at the hearing. See Pet. Br. 38. Nevertheless, as proof of Shratter s supposed lack of information, Petitioner s counsel repeatedly cites his statement he did not know precisely when Petitioner entered the household. See Pet. Br. 21, 35, In reality, Shratter testified he could not pinpoint a date because Petitioner told him she was in and out of the apartment until Efrain s death. See R 393:11-14 ( I don t know because she told me that she was moving, she was going back and forth, and she decided to stay there when she felt he could no longer live in the apartment on his own. ). This statement does not show Shratter lacked knowledge of the date of entry; it shows he honestly testified about the fact Petitioner could not identify a specific date when she permanently moved into Efrain s apartment because she was going back and forth between her apartment and his apartment. Although Petitioner s counsel states the date was ascertainable from his ward (Pet. Br. 21), Petitioner was unable to tell Shratter the date because there was no specific date. 3 The fact Petitioner s counsel does not like Shratter s testimony, which he gave under oath, 3 The January 18, 2013 letter from the Inwood Mental Health Center does not, as Petitioner s counsel contends, demonstrate Petitioner permanently moved into Efrain s household 15 months before his death. See Pet. Br ; R 245. Even assuming Petitioner did temporarily reside with Efrain upon her release from the mental institution in March 2009, the letter does not contradict Shratter s testimony she was going back and forth from his apartment to her apartment between that date and Efrain s death. 7

13 does not render his testimony untrue or prove Shratter had no personal knowledge of the situation. Third, there is no reason to believe the presence of an attorney at the administrative hearing would have made a determinative difference in the outcome of Petitioner s grievance. Despite Petitioner s counsel s declaration Shratter failed to provide effective or meaningful assistance (Pet. Br. 26), the arguments Petitioner s counsel raised before the lower court (aside from her claims about Shratter s abilities) are nearly identical to the arguments Shratter raised at the hearing, including the claim Petitioner s marriage to Efrain and other mitigating circumstances should entitle her to succession rights despite Efrain s failure to obtain permission for Petitioner to join his household (compare R 392:1-393:2 with R , and R 100:14-25), and her claim Efrain s brain cancer may have prevented him from submitting a permission request (compare R 391:1-19 with R 106:7-107:5). Therefore, in lieu of highlighting flaws in Shratter s legal arguments (presumably because she adopted them as her own), Petitioner s counsel identifies a handful of minor errors Shratter supposedly made during the hearing as proof of his purported incompetence. 4 For example, Petitioner s counsel faults 4 Petitioner cites several inapposite criminal cases involving the effective assistance of counsel standard. See Pet. Br. 25. However, even in the criminal law context, the Court of Appeals has held counsel s efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective and [t]he Constitution guarantees the accused a fair trial, not necessarily a perfect one. People v. Benevento, 91 N.Y.2d 708, 712 (1998). 8

14 Shratter for offering irrelevant forms into evidence from 2007 and 2008, which she says are years that were not in issue. 5 Pet. Br. 39; R However, Petitioner s occupancy in 2007 and 2008 was at issue, because Petitioner initially claimed she lived in the apartment for three years before Efrain s death in See R 340. In addition, Petitioner claims Shratter erroneously stated Efrain died in 2012 instead of 2010 even though Shratter immediately corrected himself, introduced Efrain s death certificate into evidence, and subsequently informed the Hearing Officer Efrain died on May 30, See Pet. Br , 39; R 380:13-24, 383:5-15. Ironically, Petitioner s counsel also mocks the Housing Authority for inadvertently doing the exact same thing in its appellate brief by stating in the preliminary statement that Efrain died in 2011 instead of See Pet. Br. 3. Just as a GAL is capable of occasionally misspeaking, attorneys are capable of making a typographical error. These types of insignificant (and instantly corrected) errors are not proof of incompetence or ineffective assistance. Fourth, Shratter did not err by proceeding without counsel. Petitioner s counsel argues [i]t is not rational to claim that [Petitioner] chose to litigate her 5 Petitioner s counsel incorrectly claims the affidavits of income only ask about physical disabilities. See Pet. Br. 39. The Notice of Reasonable Accommodation actually asks if anyone living in the apartment has a mental or psychological disability. R 312, The Housing Authority otherwise correctly identified the date of Efrain s death throughout its appellate brief and included Efrain s death certificate in the Record on Appeal. See Respondent-Appellant s Brief ( App. Br. ) 16, 21, 39, 54; R

15 claim without counsel, when [the Housing Authority] had found she was not competent to make litigation choices or protect her interests. Pet. Br. 42. However, the Housing Authority appointed a GAL specifically to make litigation choices on Petitioner s behalf. Petitioner s counsel concedes the community of non-profit law practitioners is able to represent fewer than twenty percent of New Yorker who seek or need their help (Pet. Br. 40), yet presumes Shratter could have retained counsel and either turned it down or did not look hard enough to find it (see Pet. Br ). 7 There is no basis for Petitioner s claim that at no time did [the Hearing Officer] offer to adjourn for Petitioner and/or Guardian to attempt to obtain counsel. Pet. Br. 41. The proceeding actually was adjourned for nearly one year after Shratter was appointed as GAL, and there is no reason to believe he did not attempt to retain counsel during that period. See R 353, 354, 365, 368. Given that Shratter was unable to retain counsel, he appropriately informed the Hearing Officer he and Petitioner were ready to proceed without counsel. See R 370:15-370:2. The GAL, who is not mentally incompetent and stands in the shoes of the grievant during the course of the administrative proceeding, is entitled to proceed pro se. 7 Non-profit law practitioners are even less likely to squander their limited resources on a case, such as Petitioner s remaining-family-member grievance, that has no merit. 10

16 B. The Housing Authority s Mental Competency Procedures Are Not Illusory A federal court approved the Housing Authority s mental competency procedures, which establish the mechanism by which the Housing Authority appoints GALs in order to protect the due process rights of mentally incompetent grievants. See Blatch v. Hernandez, Case No. 97-CIV-3918, 2008 U.S. Dist. LEXIS (S.D.N.Y. Oct. 10, 2008) (LTS). In contrast to Petitioner s counsel s oft-stated opinion the presence of a GAL creates the mere illusion of due process (see Pet. Br. 19, 26, 36, 37), the federal court expressly concluded the Housing Authority s mental competency procedures provide very substantial and significant relief with respect to the core due process claims. 8 Blatch, 2008 U.S. Dist. LEXIS at *22. As the Housing Authority established in its appellate brief, a GAL need not be an attorney to protect the interests of the ward. See App. Br ; R 202, 204. Apparently displeased with the reality that non-attorneys may serve as GALs, Petitioner takes aim at the Office of Court Administration and its screening process, dismissively describing its GAL training program as rudimentary and its supervision non-existent, and stating [a]ny adult who presents a resume, two 8 Petitioner oddly states the the term Guardian ad Litem is not mentioned in Blatch. See Pet. Br. 24. However, in approving the Blatch settlement, the federal court explicitly confirmed it required the appointment of guardians ad litem for mentally incompetent persons in connection with... remaining family member grievance proceedings. Blatch, 2008 U.S. Dist. LEXIS at *

17 references, and passes an interview and background check may be a guardian ad litem. Pet. Br. 36. The Office of Court Administration undoubtedly evaluates the resumes of prospective GALs, calls their references, assesses their interview performances, and only selects individuals who meet the Office of Court Administration s eligibility criteria. If certain non-attorneys lack the requisite skills or background to serve as GALs, the Office of Court Administration would not allow them to serve as GALs. This Court should reject Petitioner s contention a GAL must be an attorney in order to satisfy due process. Although Petitioner claims she does not argue low-income grievants have a right to counsel in civil cases (see Pet. Br ), she incompatibly maintains GALs are incapable of providing meaningful assistance unless they are trained as attorneys (see R 5, 36-37). 9 Petitioner is correct that there is no right to counsel at administrative hearings; only the right to an opportunity to be represented by counsel. See Baywood Elec. v. New York State Dep t of Labor, 232 A.D.2d 553, 554 (2d Dep t 1996) (hearing officer s denial of petitioner s request for an adjournment did not deny right to counsel because right to counsel does not extend to administrative hearings). Therefore, Shratter s 9 Petitioner notes a proposed law pending in the City Council would establish a right to counsel for low income New Yorkers in all eviction cases. Pet. Br. 24 n.5. In addition to the fact Petitioner s administrative grievance hearing was not an eviction case, the proposed law has not been passed by the City Council and it certainly was not in effect at the time of the hearing. 12

18 status as a non-attorney, in and of itself, cannot establish he failed to provide meaningful assistance. C. The Hearing Officer Was Not Required to Develop the Record This Court should reject Petitioner s argument the Hearing Officer somehow failed to adequately assist Petitioner or develop the record. Pet. Br. 13, 21. Citing Jackson v. Hernandez, 63 A.D.3d 64 (1st Dep t 2009), Petitioner claims [t]his Court has clearly and consistently held that due process mandates that a hearing officer should make inquiries of a pro se participant to adequately develop the record. Pet. Br. 15 (quoting Jackson, 63 A.D.3d at 69). In actuality, this Court held the opposite in Jackson, concluding the Hearing Officer s conduct of the hearing did not deprive petitioner of any due process rights. Jackson, 63 A.D.3d at 70. Noting the petitioner in Jackson cited a handful of cases that stand for the general proposition that there may be instances where a hearing officer should make inquiries of a pro se participant to adequately develop the record, this Court characterized those cases as the exception rather than the rule, holding that general proposition is inapplicable here and [n]one of the cases cited by petitioner holds that a hearing officer must ask a pro se participant whether she agrees with each statement made by an agency witness or believes a statement is inaccurate or untruthful. Jackson, 63 A.D.3d at 69 (emphasis added). 13

19 The other cases Petitioner cites are similarly inapposite and involve circumstances that bear no resemblance to Petitioner s hearing. See Pet. Br ; Turner v. Rogers, 131 S. Ct. 2507, (2011) (family court judge incarcerated petitioner for failing to pay child support after civil contempt hearing in which judge merely asked petitioner if there was anything you want to say and did not make any findings about petitioner s ability to pay); Earl v. Turner, 303 A.D.2d 282, 282 (1st Dep t 2003) ( the brevity of the hearing and the ALJ s complete failure to develop the record effectively deprived petitioner of a fair hearing where the ALJ s instructions were incomprehensible and the ALJ did not provide petitioner with an opportunity to inspect the evidence ); Hendry v. D Elia, 91 A.D.2d 663, 663 (2d Dep t 1982) (administrative law judge and agency representative confused pro se petitioner by only asking about her activities during the month of September, even though the month of August was at issue); Schnurr v. Perales, 115 A.D.2d 740, 741 (2d Dep t 1982) (remanding matter for a new hearing because of the Administrative Law Judge s abrupt termination of the proceedings without any attempt to delineate the issues upon which the hearing was to focus and because the ALJ and agency representative relied on the wrong regulation during the hearing). In Feliz v. Wing, 285 A.D.2d 426, 427 (1st Dep t 2001), on which Petitioner relies in support of her argument the brevity of the hearing deprived her of due process (see Pet. Br. at 15-16), the entire 14

20 administrative hearing lasted less than three minutes. See Feliz v. Wing, 2000 N.Y. Misc. LEXIS 673, at *2 (Sup. Ct. N.Y. Co. Feb. 1, 2000) (Schlesinger, J.). In contrast, the hearing in this case lasted one hour and 15 minutes, including a 30- minute recess for Shratter and Petitioner to re-examine Efrain s tenant folder. See R 368:3-4; 386:18-387:16; 412: Although Petitioner describes these easily distinguishable decisions as an unbroken line of cases, she ignores all the recent cases the Housing Authority cited in its brief, in which this Court held Housing Authority Hearing Officers have no obligation to develop the record for a pro se litigant. See App. Br (citing Grant v. New York City Hous. Auth., 116 A.D.3d 630, 630 (1st Dep t 2014); Moore v. Rhea, 111 A.D.3d 445, 445 (1st Dep t 2013); Rivera v. New York City Hous. Auth., 107 A.D.3d 404 (1st Dep t 2013); Chandler v. Rhea, 103 A.D.3d 427, 427 (1st Dep t 2009); see also Pagan v. Rhea, A.D.3d, 2014 N.Y. App. Div. LEXIS 8192, at *2 (1st Dep t Nov. 25, 2014) ( notwithstanding that petitioner represented herself at the hearing, the hearing officer was not obligated to develop the record for her ). After the Housing Authority served its appellate brief, this Court reversed another one of Justice Schlesinger s decisions in which she similarly held the Hearing Officer s failure to ask the petitioner questions in order to elicit potentially favorable testimony violated the petitioner s due process rights. See Santiago v. New York City Hous. Auth., 122 A.D.3d 433, 433 (1st Dep t 15

21 2014) (reversing lower court s decision and concluding Petitioner was accorded procedural due process at the administrative hearing ). Petitioner specifically accuses the Hearing Officer of asking Petitioner no direct questions, presuming direct questions from the Hearing Officer may have elicited clearer testimony from Petitioner. 10 See Pet. Br. 11, 19. Petitioner cites the mental competency evaluation in support of her claim Petitioner is capable of truthfully answering direct questions. See Pet. Br. 23 (stating the evaluation document[ed] her ability to answer direct questions). However, during Petitioner s mental competency evaluation, she told the social worker, presumably in response to a direct question, that Efrain did not list her on his family composition because she was living elsewhere. R 359. Had Petitioner testified to that effect in response to a direct question from the Hearing Officer, it would have further undermined Petitioner s counsel s assertions that she resided in the apartment at the time Efrain submitted his final affidavit of income. 10 Petitioner insinuates the Hearing Officer was not impartial because she is employed by the Housing Authority. See Pet. Br. 4, 10. There is no inherent conflict of interest in a Hearing Officer employed by the agency conducting the hearing. See Nat Kagan Meat & Poultry, Inc. v. Gerace, 118 A.D.2d 1043, 1044 (3d Dep t 1986) (concluding [s]tanding alone, the fact the hearing officer was a New York State Department of Agriculture and Markets employee is insufficient to show a violation of butcher petitioner s due process rights; We must reject any argument that petitioner s due process rights were violated merely because the hearing officer was employed by the Department. ); see also R 319 at 8 ( Hearing officers are impartial disinterested attorney[s] ); Aponte v. New York City Hous. Auth., 48 A.D.3d 229, 229 (1st Dep t 2008) ( Nor is there any support for petitioners claims of bias on the part of the hearing officer. ). 16

22 Petitioner s argument is internally inconsistent. On the one hand, she contends the Hearing Officer did not give Petitioner enough of an opportunity to coherently testify about her claim, yet on the other hand, she claims Petitioner was confused and hallucinating at the hearing. See Pet. Br. 34. Petitioner s counsel quotes Petitioner s statement at the hearing that she had mixed up thoughts no less than five times. See Pet. Br. 5, 11, 12, 14, 34. The Housing Authority appointed a GAL to assist Petitioner because of her mixed up thoughts. While the Hearing Officer did attempt to engage Petitioner throughout the hearing, it was appropriate for the Hearing Officer to defer to the GAL, who is not mentally incompetent, and allow him to submit testimony and evidence on Petitioner s behalf. POINT II PETITIONER IS INELIGIBLE TO SUCCEED TO EFRAIN S LEASE It would be futile to grant Petitioner a new hearing because, even if this Court accepted Petitioner s counsel s unsupported theory of the facts of this case as true, Petitioner is ineligible to succeed to the lease as a remaining family member because Efrain never obtained or even requested permission for her to reside with him and affirmatively represented to the Housing Authority he lived alone. As the Housing Authority established in its appellate brief, this Court repeatedly has rejected a mitigating-factor approach to remaining-family-member 17

23 claims and consistently held the Housing Authority cannot be estopped from complying with its written-consent requirement. See App. Br Even if there were a limited implicit approval exception to the Housing Authority s written permission policy, it would not apply here because nothing in or outside the record suggests the Housing Authority knew of and implicitly approved Petitioner s occupancy in Efrain s apartment. See App. Br Petitioner, like the lower court, asks this Court to rely on Murphy v. New York State Div. of Hous. & Cmty. Renewal, 21 N.Y.3d 649 (2013), even though it involves the state Mitchell-Lama program and not the Housing Authority s public housing program, because both administrations [sic] have policies regarding remaining family members and succession rights. Pet. Br. 28. As the Housing Authority pointed out when it distinguished Murphy in its appellate brief, Murphy is inapplicable to Petitioner s case because, among other reasons, Mitchell-Lama and the Housing Authority have very different succession policies. See App. Br Since the Court of Appeals issued the Murphy decision, this Court has not applied Murphy to the Housing Authority s remaining-family-member policy. 11 Instead, it has continued to hold the Housing Authority may not be estopped from denying RFM status even if it... failed to assist the tenant of record with the 11 The two Appellate Term, Second Department cases Petitioner cites, both of which refer to the Murphy decision, do not involve the Housing Authority and are not binding on this Court. See Pet. Br. 30; Mexico Leasing LLC v. Jones, 45 Misc. 3d 127(A) (App. Term, 2d Dep t 2014); Marine Terrace Assocs. v. Kesoglides, 44 Misc. 3d 141(A), *9 (App. Term 2d Dept. 2014). 18

24 necessary forms or was aware of petitioner s occupancy. Dancil v. New York City Hous. Auth., A.D.3d, 2014 N.Y. App. Div. LEXIS 8405, at *1 (1st Dep t Dec. 4, 2014) (citing Rosello v. Rhea, 89 A.D.3d 466, 466 (1st Dep t 2011)); see also Curry v. New York City Hous. Auth., A.D.3d, 2015 N.Y. App. Div. LEXIS 645, at *1 (1st Dep t Jan. 26, 2015) ( The doctrine of estoppel cannot be invoked against [the Housing Authority]. ); Vereen v. New York City Hous. Auth., A.D.3d, 2014 N.Y. App. Div. LEXIS 8494, at *1 (1st Dep t Dec. 9, 2014) ( any alleged errors made by management would not entitle petitioner to the lease because estoppel may not be invoked to create a right where none exists ). 12 Like the lower court, Petitioner relies on dicta in this Court s decisions in McFarlane v. New York City Hous. Auth., 9 A.D.3d 289 (1st Dep t 2004), and Gutierrez v. Rhea, 105 A.D.3d 481 (1st Dep t 2013), for the propositions this Court requires a flexible approach to determining remaining-family-member claims and the lack of written permission is not dispositive. See Pet. Br. 29, 33. As the Housing Authority explained it its appellate brief, McFarlane and Gutierrez do not stand for this proposition because, among other reasons, (1) neither case mandated the Housing Authority ignore its succession requirements; (2) in Gutierrez, this Court held the Housing Authority erroneously denied a permanent 12 Although Petitioner maintains she does not invoke waiver or estoppel (Pet. Br. 9), this Court consistently has cited the no estoppel against a government agency doctrine in rejecting the types of arguments Petitioner makes in her brief. See App. Br

25 permission request based on the grievant s criminal background without providing an opportunity to show rehabilitation and the tenant subsequently listed the grievant s name on her annual affidavits of income, whereas here, Efrain never even requested permission for Petitioner to permanently join his household and he did not list Petitioner on any of the affidavits of income he submitted before his death; and (3) this Court upheld the Housing Authority s determination denying succession in McFarlane because it was fully justified by the statutes, regulation, policies and case law that bind the Housing Authority and HUD regulations precluded the Housing Authority from permitting petitioners to be treated as additions to the tenant families in the absence of a permission request. See App. Br ; Gutierrez, 105 A.D.3d at 485; McFarlane, 9 A.D.3d at 291. Petitioner also cites Abdil v. Martinez, 307 A.D.2d 238 (1st Dep t 2003), for the proposition permanent permission is not a requirement for succession rights because it is a policy, not a rule and not a law. Pet. Br. 29. Petitioner mischaracterizes this Court s decision. In Abdil, this Court explained the Housing Authority s flexibility in program administration is limited because federal regulations, among other things, require tenants obtain permission to add any additional family member as an occupant of the unit. Abdil, 307 A.D.2d at 239 (citing 24 C.F.R (a)(1)(v)). This Court held the written-consent requirement was not a formal rule or regulation but instead was a policy 20

26 accommodating federal regulations, and it rejected the petitioner s claim she did not need to comply with the written-permission requirement. See id. at In Filonuk v. Rhea, 84 A.D.3d 502 (1st Dep t 2011), which Petitioner also cites, this Court again rejected the argument the written-permission requirement should not be rigidly enforced because it is not a rule. See Pet. Br. 29; Filonuk, 84 A.D.3d at 503 (upholding denial of succession rights where record shows petitioner never became an authorized occupant of her mother s apartment prior to her mother s death; although NYCHA s written consent requirement is not a formal rule or regulation, petitioner was required to obtain such consent in order to be entitled to RFM status ). Petitioner also relies on this Court s decision in Detres v. New York City Hous. Auth., 65 A.D.3d 442 (1st Dep t 2009), in support of her implicit approval argument. See Pet. Br. 16, 31, In Detres, this Court did not hold estoppel is sufficient to establish succession rights but instead remanded for a new hearing because the petitioner was not afforded a full opportunity to be heard in light of her apparent confusion from major brain surgery before the hearing. See Detres, 65 A.D.3d at 443. Unlike Petitioner, Detres did not have a GAL at her hearing. See id. There was no reason for the Hearing Officer in this case to have questioned Petitioner about her medical issues because the Housing Authority already had conducted a mental competency evaluation and determined she required a GAL. 21

27 See R ; 269:20-370:3. Shratter, who did not have major brain surgery before the hearing and was not confused, was fully capable of providing the Hearing Officer with any relevant information in support of Petitioner s remainingfamily-claim, including any evidence of implicit approval. If there were evidence sufficient to support such a drastic departure from the Housing Authority s policy, Shratter certainly would have been capable of finding and submitting it. 13 Citing inapposite case law involving police misconduct, Petitioner erroneously characterizes the Housing Authority s determination denying her remaining-family-member grievance as a punishment that is shocking to one s sense of fairness, which is not the appropriate standard of review. See Pet. Br. 32. The Housing Authority did not punish Petitioner; it rationally complied with its remaining-family-member policy in determining she failed to meet her burden to show entitlement to succession rights. Even if this Court were to evaluate the Housing Authority s denial of Petitioner s remaining-family-member claim as 13 As the Housing Authority established in its appellate brief, the January 18, 2013 letter drafted by Petitioner s mental healthcare providers does not state or suggest Efrain ever sought management s permission for Petitioner to permanently reside in his apartment or that management would have had any reason to know she resided there (assuming she actually did continuously reside there between her discharge from the institution and Efrain s death). See Pet. Br ; R 245. Although Petitioner s counsel claims Petitioner has profound excuses for the apparent lack of a paper trail supporting her tenancy (Pet. Br. 30), she has not pointed to any other types of proof that may support her claim. Given Petitioner s argument it was proper for the lower court to consider the January 18, 2013 letter to substantiate her claims of prejudice attributable to the alleged due process violation (see Pet. Br. 22), it is revealing that Petitioner s counsel has never sought to submit any other evidence to the lower court that even suggests management implicitly approved her occupancy in Efrain s apartment. 22

28 some sort of penalty which it is not the Court of Appeals rejected the purported mitigating circumstance of potential homelessness, in part, because subsidized housing is of limited availability and there are waiting lists of other families in need of homes, whose situations may be equally sympathetic. Perez v. Rhea, 20 N.Y.3d 399, 405 (2013). Accordingly, Petitioner would not be entitled to an exception to the remaining-family-member requirements in light of the families on the Housing Authority s long waiting list (see R at 5), who do not have the opportunity to show this Court their equally sympathetic circumstances and dire need for affordable housing. 14 POINT III PETITIONER S PURSUIT OF SANCTIONS IS MERITLESS In attempt to distract this Court from the irrationality of her arguments, Petitioner accuses the Housing Authority and its counsel of reckless, defamatory, and unprofessional conduct and asks this Court to impose sanctions. See Pet. Br. at This sideshow not only is procedurally defective and substantively unsupported, it cannot change the basic fact that Petitioner does not qualify for succession rights. 14 Petitioner claims she has not committed any wrong-doing that would make her ineligible to live in NYCHA property aside from never obtaining permission to live there. See Pet. Br. 4, 29. This claim is irrelevant because any person selected from the waiting list of qualified applicants also will satisfy the Housing Authority s eligibility requirements. 23

29 In support of her claim, Petitioner cites several inapposite cases in which this Court reviewed a sanction imposed by the Departmental Disciplinary Committee. See Pet. Br. 43; In re Holtzman, 78 N.Y.2d 184, (1991) (attorney publically disseminated a letter to the media that falsely accused judge of forcing victim of sexual assault to reenact the sexual assault in his chambers); In re Golub, 190 A.D.2d 110, 111 (1st Dep t 1993) (attorney made degrading and sexist comments about judge to press); In re Hayes, 7 A.D.3d 108, 109 (1st Dep t 2004) (during in-court outburst, attorney accused judge of racism and made insolent remarks); In re Delio, 290 A.D.2d 61, 62 (1st Dep t 2001) (during in-court outburst, attorney called judge pompous and undeserving of respect); In re Dinhofer, 257 A.D.2d 326, 327 (1st Dep t 1999) (during telephone status conference, attorney made derogatory comments about judge and accused judge of corruption); In re Wisehart, 281 A.D.2d 23, (1st Dep t 2001) (attorney disciplined for stealing documents from opposing counsel, making reckless accusations about judge s medical history, and screaming at judge in court); Kunstler v Galligan, 168 A.D.2d 146, 148 (1st Dep t 1991) (during in-court outburst, attorney called judge disgrace to the bench ). 15 Nothing the Housing Authority s counsel wrote in its brief remotely resembles the sanctioned conduct discussed in the cases Petitioner cites. In fact, 15 Petitioner uses incorrect citations for several of these cases in her brief. The correct citations are indicated above. 24

30 none of the 17 statements Petitioner quotes, albeit out of context, is inappropriate, inaccurate, or intemperate. See Pet. Br The statements to which Petitioner objects are either (1) arguments in support of the Housing Authority s position a lower court may not substitute its preferred result for a rational agency determination; (2) accurate descriptions of the lower court s Judgment; or (3) innocuous phrases frequently used in litigation. Petitioner takes issue with the Housing Authority s assertions the lower court mischaracterized the record and misstated the law in order to achieve a specific result. These assertions reflect the well-established law recognizing a judge may not substitute her preferred result for a rational agency determination. See Howard v. Wyman, 28 N.Y.2d 434, 438 (1971) ( the courts should not resort to such unwarranted judicial legislation ); Peconic Bay Broad. Corp. v. Bd. of Appeals, 99 A.D.2d 773, 774 (2d Dep t 1984) ( reviewing courts are not empowered to substitute their own judgment or discretion for that of an administrative agency merely because they are of the opinion that a better solution could thereby be obtained ). It is not disrespectful for the Housing Authority to identify sections of the Judgment that support its contention the lower court attempted to substitute its preferred result for the Housing Authority s determination Petitioner does not qualify for succession rights. Justice Schlesinger makes no secret of her wish to dismantle the Housing Authority s succession 25

31 policy; she identifies it as her objective in the first sentence of the judgment. See R 8 ( If one were to identify cases illustrative of [Housing Authority] policies and procedures that cry out for change, this case would be at the top of the list. ). Petitioner also takes issue with several passages that are accurate descriptions of the Judgment and the proceedings before the lower court. It is not reckless for the Housing Authority to write Justice Schlesinger ordered the Housing Authority to make an exception to its written consent requirement given that she expressly ordered and adjudged that the Housing Authority do so. See R 31. It is not unprofessional for the Housing Authority to write Justice Schlesinger recruited Petitioner s counsel given that Justice Schlesinger acknowledged in the Judgment she arranged for pro bono counsel to step in and supplement [Petitioner s] papers. R 22. It is not untrue for the Housing Authority to point out that Justice Schlesinger, off the record, asked Shratter to obtain additional documentation. 16 Indeed, Justice Schlesinger acknowledges Shratter obtained and submitted the letter to the Court [d]uring the course of these proceedings. R 20. To the extent Petitioner finds some of the language in the Housing Authority s appellate brief to be disrespectful, the Housing Authority s word 16 This directive was given at the first conference on January 16, 2013, before Petitioner s counsel became involved in the case. See R

32 choices are not atypical in an adversarial proceeding in which an appellant fundamentally disagrees with a lower court s decision. Petitioner s counsel s oversensitivity is on full display when she accuses the Housing Authority of disrespectfully and unprofessionally referring to Efrain by his first name. 17 See Pet. Br. 1. As the Housing Authority pointed out in its sur-reply, it refers to Efrain by his first time to distinguish him from Petitioner s daughter, Anna Plumey, with whom he shares a surname. See R 181 n.2. Clearly, Petitioner s counsel imagines disrespect where it does not exist. It is not unethical for attorneys to zealously advocate on behalf of their clients. Indeed, Justice Schlesinger herself has complimented the Housing Authority s counsel for always put[ting] on a strong argument on behalf of their client. R 178:7-8. Because Petitioner s succession claim is utterly devoid of merit, Petitioner s counsel resorts to casting aspersions on the individuals who participated in both the administrative proceeding and the Article 78 proceeding in an effort to divert this Court s attention from the real issue: Petitioner s inability to show she is entitled to succession rights under any reasonable interpretation of the Housing Authority s remaining-family-member policy. By focusing on the Housing Authority s counsel instead of actually addressing the arguments the Housing Authority raised 17 Petitioner s counsel believes it is more respectful to call him Husband. Pet. Br

33 in its appellate brief, Petitioner is merely reaffirming the flimsiness of her remaining-family-member claim. CONCLUSION For the reasons discussed above and in the Housing Authority's appellate brief, the Housing Authority respectfully requests this Court vacate the lower court's order, confirm the determination of the Housing Authority denying Petitioner's remaining-family-member grievance, deny the Petition, and dismiss this proceeding in its entirety. Dated: New York, NY February 12, 2015 DA VID 1. FARBER General Counsel New York City Housing Authority 250 Broadway, 9th Floor New York, NY (212) Attorneys for Respondent-Appellant ~

34 Nancy M. Harnett Andrew M. Lupin, Of Counsel TO: Emily Jane Goodman, Esq. 45 Broadway, Suite 1700 New York, NY (212) Attorney for Petitioner-Respondent 29

35 PRINTING SPECIFICATIONS STATEMENT In compliance with section O( d)( 1)( v) of the Rules of this Court, I hereby certify this computer generated brief was prepared using Times New Roman proportionally-spaced typeface in 14 point size font (except for footnotes that contain 12 point size font). This brief is double-spaced (except for footnotes). The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum is 6,947. I have relied on the word count provided by Microsoft Word. Dated: New York, NY February 12, Lupin, Of Counsel