It is ORDERED that this application is disposed of as follows:

Petitioner, a recipient of a Section 8 housing subsidy, claims that her subsidy was wrongfully terminated without notice during the summer of 2008. After a Petitioner-requested hearing, the hearing officer upheld the agency determination.

In this proceeding Petitioner raises four issues. Her first contention is that the notice terminating her subsidy failed to meet minimal due process requirements in that it set forth no facts in support of the decision to terminate her subsidy. Secondly, Petitioner contends that the decision of the hearing officer was not supported by substantial evidence in that it was based upon unverified information contained in the Enterprise Income Verification form and that the law requires that such form be verified. Petitioner also contends that Respondents failure to properly terminate her subsidy prior to the hearing was in contravention of Federal regulations and, finally, that she was deprived of meaningful assistance of counsel in that hearing should have been postponed to afford counsel adequate time to prepare for it.

24 CFR §982.555 provides in relevant part, as follows:

[*2](a) When hearing is required. — (1) A PHA must give a participant family an opportunity for an informal hearing to consider whether the following PHA decisions relating to the individual circumstances of a participant family are in accordance with the law, HUD regulations and PHA policies:

(v) A determination to terminate assistance for a participant family because of the family's action or failure to act (see § 982.552).

(2) In the cases described in paragraphs (a)(1) (iv), (v) and (vi) of this section, the PHA must give the opportunity for an informal hearing before the PHA terminates housing assistance payments for the family under an outstanding HAP contract.

Upon examination of the record and the submissions of counsel, it appears that the termination of Petitioner's subsidy in October 2008 was the result of a letter received from the Office of the Inspector General of the U.S. Department of Housing and Urban Development ("the HUD letter") to the Administrator of Respondent's Section 8 Office stating that Petitioner had been arrested for Grand Larceny in connection with her taking money from HUD to which she was not entitled. The letter "encouraged" Respondent to take administrative action to preclude the continuation of harm or financial loss to the Department. In response, Respondent sent Petitioner a copy of the HUD letter and her subsidy was terminated without a hearing.

Given the foregoing undisputed facts, the Court finds that Respondent violated the Federal Rules by not affording Petitioner an opportunity for an informal hearing before terminating her assistance and, as a result, Petitioner is entitled to her subsidy payment from the date of termination of the subsidy until the date of the hearing decision on April 23, 2009.

Section 7804(g) of the CPLR provides

"Where the substantial evidence issue specified in question four of section 7803 ^[FN1] is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced. When the proceeding comes before it, whether by appeal or [*3]transfer, the appellate division shall dispose of all issues in the proceeding, or, if the papers are insufficient, it may remit the proceeding."

Since the Petitioner raises the question of whether the challenged determination is supported by substantial evidence, and since no objection has been raised that could have terminated the entire proceeding within the meaning of CPLR §7804(g), this Court is obligated to transfer this proceeding to the Appellate Division. Bush v. Mulligan, 57 AD3d 772, 2nd Dept.,2008; Dallas v. Doar, 45 AD3d 592, 2nd Dept., 2007; Royster v. Goord, 26 AD3d 503, 2nd Dept., 2006.

The Clerk of the Court is hereby directed to forthwith transmit all papers and records in this proceeding to the Clerk of the Appellate Division, Second Judicial Department.

Given foregoing, the Court need not address Petitioner's other arguments.

CPLR §1101(a), governing motions for permission to proceed as a poor person requires, among other things, that an affidavit must be filed setting forth the amount and sources of movant's income and listing his or her property with its value; that movant is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, fees and expenses. Since Petitioner failed to provide such statement Petitioner's application to proceed as a poor person is denied without prejudice.

Dated: New City, New York

September 27, 2010

ENTER:

__________________________

Hon. Alfred J. Weiner, JSC