[*1]
Matter of Boddie v New York City Hous. Auth.
2008 NY Slip Op 52286(U) [21 Misc 3d 1130(A)]
Decided on October 10, 2008
Supreme Court, New York County
Cahn, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 10, 2008
Supreme Court, New York County


In the Matter of the Application of Terence Boddie, Petitioner,

against

New York City Housing Authority, Application and Tenancy Administration Department, Respondent.




401320/08



Petitioner Terence Boddie was pro se, #93-A-2001 Mohawk School Road, P.O. Box 8451, Rome, NY 13442.

Respondent New York City Housing Authority was represented by its General Counsel, 250 Broadway, New York, NY 10007, (212) 776-5259, Donna M. Murphy, Esq.

Herman Cahn, J.



Pro se Petitioner, Terence Boddie, brings this Article 78 proceeding against Respondent New York City Housing Authority (NYCHA) to challenge its denial of his application for Section 8 Housing Assistance.

BACKGROUND

This action is based on NYCHA's denial of Boddie's Section 8 Housing Assistance application because its waiting list was closed to new applications, except those meeting certain emergency criteria.

The Section 8 Housing Assistance Program ("Section 8 Program" or "Section 8") is a federal program administered by local public housing authorities (PHAs); NYCHA administers the program in New York City. The Section 8 Program is a voucher program that makes housing more affordable to very low-income families by subsidizing private landlords, thus allowing the families to obtain housing at below market prices. (24 CFR 982.1). The United States Department of Housing and Urban Development (HUD) provides funding for the Section 8 Program to the local PHAs. There are two categories of housing assistance in the Section 8 Program: tenant-based and project-based. In the tenant-based assistance, families choose where they want to live, and if the unit is approved by the local PHA, the PHA contracts with the owner and makes rental subsidy payments on behalf of the family. In the project-based assistance, the subsidies are paid by the PHA to assist families in specific housing developments. (Id.).

Individuals who are subject to a state's lifetime sex offender registration requirement are prohibited from obtaining federal housing assistance. (42 USC 13663; 24 CFR 982.1). Under New York's Sex Offender Registration Act, there are three levels of registration based on the offender's risk of reoffending. (People v Cintron, 13 Misc 3d 833, 838 [Sup. Ct. Bronx Co. 2006]). Level one sex offenders are deemed to have the lowest risk of reoffending; they are required to register for a period of twenty years. Level two and Level three sex offenders [*2]respectively are deemed to have a moderate and high risk of reoffending and are both subject to lifetime registration. (Id.).

On February 26, 1993, Boddie was convicted of four counts of first degree rape, five counts of first degree sodomy and two counts of first degree sexual abuse. He was sentenced to concurrent prison terms of six to eighteen years for the rape and sodomy convictions and two to six years for the sexual abuse convictions. According to the State Division of Criminal Justice Services website, he is designated as a Level 2 sex offender who is subject to lifetime registration under the State's sex offender registration program. (V Ans, Ex. 4). Boddie is currently an inmate at the Mohawk Correctional Facility, where he returned on January 10, 2008 for violating parole after having been previously released from prison.

By letter dated January 12, 2008, Boddie requested that the NYCHA provide him with an application for "housing" and an application for a "Section 8 certificate." (Id., Ex. 9). In the letter, he claimed that he was disabled, homeless and currently incarcerated, but that upon his release in the near future he would be in need of housing. On January 30, 2008, NYCHA responded by letter enclosing a "Guide to Applying for Public Housing," a public housing application and a "Guide to Section 8 Housing Assistance." (Id., Ex. 10). The letter stated that no Section 8 application was enclosed because NYCHA was no longer accepting Section 8 Program applications since the waiting list had been closed since May 15, 2007 except to applicants that met certain emergency criteria.

A PHA may periodically close the Section 8 Program waiting list to applicants because the demand for housing often exceeds the housing available. (24 CFR 982.206(c)). The PHA may accept applications that meet certain criteria while the waiting list is closed. (Id.). The NYCHA Section 8 Program waiting list was closed in December 1994 and was briefly reopened during the three month period between February 12, 2007 and May 14, 2007. When its waiting list is closed, NYCHA accepts only applications that meet the criteria of one of three emergency categories: (1) victims of domestic violence, (2) intimidated witnesses referred by the district attorney or (3) families or individuals referred by the Administration for Children's Services. (V Ans, Ex. 2).

By letter dated February 15, 2008, Boddie again requested that NYCHA provide him with a Section 8 application. (Pet, Ex. A). In that letter, Boddie, without providing documentation, outlined his medical conditions as "open heart surgery (valve replaced), Type B dissection of the aortic root (tear), severe scolyosis, phlebitis of the lower left leg, blood clots, high blood pressure and breathing problems."

Boddie claims that he filed an Application for Section 8 Housing Assistance ("Section 8 Application" or "Application") in March 2008. (Id., � 12). By letter dated May 19, 2008, the NYCHA informed Boddie that his Section 8 Application could not be processed and that his Application had been discarded because "[t]he Section 8 Waiting list closed on May 14, 2007 except for Victims of Domestic Violence." (Id., Ex. C).

By letter dated May 21, 2008, Boddie appealed to NYCHA to review his Section 8 Application arguing that NYCHA's denial of his Application because he was not a victim of domestic violence violated the American's with Disabilities Act (ADA). He contended that his "well documented" disability afforded him the right to apply for and be placed on the waiting list for the Section 8 Program. (Id., Ex. D). Boddie, therefore, claimed that NYCHA discriminated against him because of his disability. He also argued that his being kept off the waiting list was [*3]a violation of his due process and equal protection rights under the United States Constitution. (Id.).

Therefore, he filed this Article 78 petition. Through his petition, he specifically seeks tenant-based housing assistance. (Id., p. 10). Boddie challenges NYCHA's determination that his Section 8 Application could not be processed because its waiting list had been closed since May 14, 2007 and because he did not fall within one of the three emergency categories. He argues that Respondent's determination was discriminatory, because he is disabled, and thus violated his rights under the ADA, the Rehabilitation Act of 1973 (Rehabilitation Act) and the due process and equal protection clauses of the United States Constitution.

DISCUSSION


In Article 78 proceedings, the Court limits its review to a determination of whether the administrative decision made, here by NYCHA, was supported by substantial evidence or was arbitrary or capricious. (See Nelson v Roberts, 304 AD2d 20, 23 [1st Dep't 2003]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Weschester County, 34 NY2d 222, 230-35 [1974]).

Petitioner argues that NYCHA's denial of his Section 8 Application violated Title II of the ADA and the Rehabilitation Act because it discriminated against him on the basis of his disability.

Discrimination by a public entity against an individual is prohibited under Title II of the ADA. "Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by such entity." (42 USC � 12132). To state a claim under Title II of the ADA, the petitioner must allege that "(1) he is a qualified individual with a disability'; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination, was by reason of his disability." (Weinreich v Los Angeles County Metropolitan Transp. Auth., 114 F3d 976, 978 [1997][quoting Title II of the ADA, 42 USC � 12132]).

The Rehabilitation Act prohibits discrimination against disabled individuals by the recipient entities of federal funding. "No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." (42 USC 794(a)). To state a claim under the Rehabilitation Act, the petitioner must allege that "(1) he is an individual with a disability'; (2) he is otherwise qualified' to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance." (Weinreich, 114 F3d at 978 [quoting The Rehabilitation Act, 29 USC � 794]).

Petitioner has failed to sufficiently allege a claim under either Title II of the ADA or the Rehabilitation Act because his petition contains no documentation of his alleged disability and, as evidenced by NYCHA's letter, dated May 19, 2008, Petitioner's Application was not denied based on his alleged disability but because "the Section 8 Waiting list closed on May 14, 2007 except for Victims of Domestic Violence." (Pet, Ex. C).

Further, Petitioner claims, by brief mention without supporting facts or law, that his rights under the due process and equal protection clauses of the United States Constitution have [*4]been violated because NYCHA blocked him from the Section 8 waiting list and because the list should be made available to people with disabilities. To state a claim for procedural or substantive due process violations, the petitioner must first show that he has a property interest. (Finnin v Board of County Com'rs of Frederick County, 498 F Supp 2d 772, 781-82 [2007]). A property interest is protected by the Fourteenth Amendment when a petitioner has "more than a unilateral expectation of it. He must, instead have a legitimate claim of entitlement to it." (Id., internal citation omitted). To state a claim for an equal protection violation, the petitioner must show that he was discriminated against by a government entity on the basis of being a member of a protected class, such as "race, national origin or gender." (Hamad v Nassau County Medical Center, 191 F Supp 2d 286, 300 [2000]). "Where disability discrimination is at issue, the Fourteenth Amendment only proscribes government conduct for which there is no rational relationship between the disparity of treatment and some legitimate government purpose." (Garcia v SUNY Health Sciences Center of Brooklyn, 280 F3d 98, 209 [2001]).

Petitioner has failed to show that he had either a legitimate property interest or has been deprived of a legitimate property interest in a position on NYCHA's Section 8 waiting list. The mere anticipation of a position on the waiting list does not establish a property interest of which Petitioner has been deprived by the NYCHA. (Phelps v Housing Auth. of Woodruff, 742 F2d 816, 822 [4th Cir. 1984][holding that the mere expectation of receiving housing assistance does not rise to the level of a constitutionally-protected property interest]). Therefore, Petitioner without a property interest that has been deprived by NYCHA, has failed to state a claim for a due process violation.

Petitioner has also failed to show that he has been discriminated against on the basis of one of the protected classes under the equal protection clause, such as race, national origin or gender. He has failed to show that NYCHA denied him access to its Section 8 waiting list on the basis of his claimed disability. NYCHA lawfully closed its waiting list to disabled and non-disabled individuals unless their application met the criteria of one of the three emergency categories. (24 CFR 982.206(c)). Therefore, Petitioner without a showing that NYCHA discriminated against him solely on the basis of his disability or that such discrimination lacked some legitimate government purpose, he has failed to state a claim for an equal protection violation.

Further, Boddie's claim is moot because, even if NYCHA accepted his Section 8 Application, as a lifetime sex offender under the State's sex offender registration program, he is prohibited from obtaining Section 8 Housing Assistance.

The NYCHA determination was supported by substantial evidence and was not arbitrary or capricious. The petition is dismissed.

Accordingly, it is

ORDERED that the petition is dismissed; and it is further

ORDERED that the Clerk shall enter judgment accordingly; and it is further

ORDERED that the Clerk furnish a copy of this decision to the Petitioner at his last known address.

Dated: October 10, 2008E N T E R :

/s/

J.S.C.