| Matter of Holcomb v Williams |
| 2010 NY Slip Op 02952 [72 AD3d 687] |
| April 6, 2010 |
| Appellate Division, Second Department |
| In the Matter of Celestine Holcomb,Petitioner/Plaintiff v Jeffrey S. Williams, Commissioner, Mount Vernon Department ofPlanning and Community Development, et al.,Respondents/Defendants. |
—[*1] Loretta Hottinger, Corporation Counsel, Mount Vernon, N.Y. (Gregory P. Young ofcounsel), for respondent/defendant Jeffrey S. Williams.
Hybrid proceeding pursuant to CPLR article 78 to review a determination of therespondent/defendant Jeffrey S. Williams, Commissioner, Mount Vernon Department ofPlanning and Community Development, dated July 28, 2008, which, after a hearing, confirmedthe termination of the petitioner/plaintiff's participation in the Continuum of Care Shallow RentProgram, and, in effect, to reinstate the petitioner/plaintiff's participation in the same programretroactive to April 1, 2008, and action, inter alia, for a judgment declaring that thepetitioner/plaintiff's due process rights were violated.
Adjudged that the petition is granted, on the law, with costs, the determination is annulled,the petitioner/plaintiff's participation in the Continuum of Care Shallow Rent Program or itsequivalent thereof if the program no longer exists is reinstated retroactive to April 1, 2008, andthe cause of action for a judgment declaring that the petitioner/plaintiff's due process rights wereviolated and the cause of action alleging breach of contract are dismissed as unnecessary.
The "substantial evidence" standard applies in a CPLR article 78 proceeding only when thedetermination under review was "made as a result of a hearing held, and at which evidence wastaken, pursuant to direction by law" (CPLR 7803 [4]; see Matter of Halperin v City of New Rochelle, 24 AD3d 768,769-770 [2005]). Unlike, for example, 24 CFR 966.50 et seq., and 24 CFR 982.555, theplain language of 24 CFR 583.300 (i) and 42 USC § 11386 (j), which is applicable in thiscase, does not compel a hearing. Since this determination was not made after a quasi-judicialevidentiary hearing, it was improperly transferred to this Court on the issue of substantialevidence (see Matter of Yezek v Stateof N.Y. Dept. of Motor Vehs. Appeals Bd., 62 AD3d 1017, 1018 [2009]; Matter of FNR Home Constr. Corp. vDowns, 57 AD3d 540, 541 [2008]; Matter of Meirowitz v Board of Assessors, 53 AD3d 549, 550[2008]; Seaview Assn. of Fire Is. v Department of Envtl. Conservation of State of N.Y.,123 AD2d 619 [1986]; cf. Matter ofGist v Mulligan, 65 AD3d 1231 [2009]). Rather, the Supreme Court should have passedon "whether [the] determination was made in violation of lawful procedure, [*2]was affected by an error of law or was arbitrary and capricious oran abuse of discretion" (CPLR 7803 [3]; see Matter of Johnson v State of New York, 26 AD3d 379, 380[2006]).
Nonetheless, we will decide the case in the interest of judicial economy (see Matter ofMeirowitz v Board of Assessors, 53 AD3d at 550). We note that the respondent/defendantJeffrey S. Williams, Commissioner, Mount Vernon Department of Planning and CommunityDevelopment (hereinafter the respondent/defendant), did not serve an answer to thepetition/complaint, as required by CPLR 7804 (d), nor did he file a certified transcript of therecord of the subject proceedings, as required by CPLR 7804 (e). For those reasons, coupledwith the petitioner/plaintiff's affidavit, submitted in support of her petition/complaint, whichdemonstrates that the procedure followed by the respondent/defendant in terminating herparticipation in the Continum of Care Shallow Rent Program did not comport with therequirements of the regulations governing that program, judgment in favor of thepetitioner/plaintiff is warranted (see CPLR 7804 [e]; cf. Matter of Crudo v Fogg,69 AD2d 902 [1979]).
In light of our determination of the petition, the remaining causes of action in thepetition/complaint have been rendered academic. Covello, J.P., Miller, Chambers and Lott, JJ.,concur.