| Matter of Brooks v New York City Hous. Auth. |
| 2009 NY Slip Op 00532 [58 AD3d 836] |
| January 27, 2009 |
| Appellate Division, Second Department |
| In the Matter of Renee Brooks, Respondent, v New YorkCity Housing Authority, Appellant. |
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In a proceeding pursuant to CPLR article 78 to review a determination of the New York CityHousing Authority dated October 25, 2006, which, in effect, adopted the recommendation of ahearing officer dated October 5, 2006, made upon the petitioner's failure to appear at the hearing,sustaining certain charges against the petitioner, and terminated her tenancy in public housing,the New York City Housing Authority appeals, by permission, from an order of the SupremeCourt, Kings County (Harkavy, J.), dated July 11, 2007, which, inter alia, granted the petition,remitted the matter to it for a hearing and a new determination on the merits, and denied its crossmotion to dismiss the proceeding as premature.
Ordered that the order is reversed, on the law, without costs or disbursements, the crossmotion to dismiss the proceeding as premature is granted, the petition is denied, and theproceeding is dismissed.
The petitioner was a residential tenant in a building operated by the appellant, New YorkCity Housing Authority (hereinafter the NYCHA). On or about June 13, 2006, the NYCHAcharged the petitioner with chronic delinquency in the payment of rent in violation of both herlease and her probation as established in a prior settlement with the NYCHA. The NYCHAallegedly sent to the petitioner a notice dated September 15, 2006, informing her that arecommendation had been made that her tenancy be terminated based on the charges containedin the specification of charges. The notice stated that a hearing would be held before a hearingofficer on October 3, 2006. In a determination dated October 5, 2006, the hearing officer statedthat the petitioner failed to appear at the hearing. Upon the petitioner's default, and based on therecord, the hearing officer found that, in the absence of any controverting evidence, the chargesshould be sustained. The petitioner submitted a request to the hearing officer dated October 24,[*2]2006, for a new hearing. On October 25, 2006, the NYCHA,in effect, adopted the hearing officer's determination sustaining the charges and terminated thepetitioner's tenancy. While an application by the petitioner to vacate her default was stillpending, on or about December 6, 2006, the petitioner commenced this proceeding pursuant toCPLR article 78.
Although the petitioner submitted her application to vacate her default prior to thecommencement of this proceeding, when she commenced this proceeding, that applicationremained pending. By this proceeding, she sought review of the administrative determinationentered upon her default. "Although petitioner's default here effectively terminated her tenancy,any challenge to that default is unreviewable absent an application to the Authority to vacate it"(Matter of Yarbough v Franco, 95 NY2d 342, 347 [2000]). "[N]o meaningful judicialreview lies from the default itself" (id.). To permit the petitioner to raise issuespertaining to an excuse for her default and a meritorious defense for the first time in a CPLRarticle 78 proceeding would render judicial review meaningless. "Judicial review ofadministrative determinations is confined to the 'facts and record adduced before the agency' "(id., quoting Matter of Fanelli v New York City Conciliation & Appeals Bd., 90AD2d 756, 757 [1982], affd 58 NY2d 952 [1983]). "Without an application to vacate,and [the NYCHA's] subsequent review, a court would have no record upon which to weigh thedefaulting party's excuse and potential defense" (Matter of Yarbough v Franco, 95 NY2dat 347). Thus, because the petitioner sought review of the administrative determination enteredupon her default, the Supreme Court should have granted the NYCHA's cross motion to dismissthis proceeding as premature, because, at the time she commenced this proceeding, herapplication to vacate her default was pending (cf. Matter of Yarbough v Franco, 95NY2d at 347; Matter of Drucker v NewYork City Agency FISA, 8 AD3d 666 [2004]; Matter of Pheasant Pond OwnersAssn. v Board of Trustees of Inc. Vil. of Southampton, 285 AD2d 597 [2001]).
In light of our determination, we need not reach the NYCHA's remaining contention. Rivera,J.P., Angiolillo, Dickerson and Chambers, JJ., concur.