| Matter of Cherry v New York City Hous. Auth. |
| 2009 NY Slip Op 07953 [67 AD3d 438] |
| November 5, 2009 |
| Appellate Division, First Department |
| In the Matter of Cornisha Cherry, Appellant, v New YorkCity Housing Authority, Respondent. |
—[*1] Sonya M. Kaloyanides, New York (Corina L. Leske of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Kibbie F. Payne, J.),entered June 2, 2008, which denied petitioner's application to annul respondent New York CityHousing Authority's determination refusing to open an administrative default that resulted in thetermination of petitioner's public housing tenancy, and dismissed the petition, unanimouslyaffirmed, without costs.
The proceeding cannot be maintained because the result petitioner ultimatelyseeks—restoration of her tenancy—would nullify a judgment of the Civil Court,entered during the pendency of this appeal, awarding possession of the apartment to the HousingAuthority (see 73 NY Jur 2d, Judgments § 273). It does not avail petitioner that,unlike Matter of Bobian v New YorkCity Hous. Auth. (55 AD3d 396 [2008]), Civil Court's judgment was based solely onher remaining in the apartment after the Housing Authority had terminated her tenancy. Therecan be no CPLR article 78 relief unless and until Civil Court's judgment awarding possession tothe Housing Authority is vacated. In the latter regard, we note that two motions for a stay of theCivil Court proceeding by the then pro se petitioner were denied by this Court, and thatpetitioner's attorney appeared herein before petitioner was evicted.
In any event, the application court properly refused to annul respondent's refusal to openpetitioner's default in appearing at the termination-of-tenancy hearing since, as petitionerconcedes, she failed to provide a reasonable excuse for the default and documentation supportingher defense (see Matter of Daniels v Popolizio, 171 AD2d 596 [1991]; see generally McLaughlin vHernandez, 16 AD3d 344, 345 [2005]). Due process does not mandate that a hearing beheld on an application to open an administrative default; petitioner was given notice of thecharges against her and an opportunity to be heard, and due process requires no more (seeMatter of Hall v Municipal Hous. Auth. for City of Yonkers, 57 AD2d 894, 894-895 [1977],lv denied 42 NY2d 805 [1977], appeal dismissed 42 NY2d 973 [1977]).Contrary to petitioner's contention, the application court based its decision on grounds cited bythe hearing officer, namely, petitioner's failure to provide a reasonable excuse for the default anda meritorious defense. The hearing officer, prior to entering the default, was not required toconduct an inquest to determine whether [*2]the facts warrantedtermination of petitioner's tenancy (see Walker v New York City Hous. Auth., 1991 WL285614, *3-4, 1991 US Dist LEXIS 18331, *6-11 [SD NY 1991]). Concur—Sweeny, J.P.,Buckley, Catterson, Acosta and Freedman, JJ.