It is ordered that this motion is decided as indicated below.

PetitionerUniqua Godley seeks an order pursuant to Article 78 of the CPLR: (i) annulling the determination of respondent Matthew M. Wambua, as Commissioner of New York City [*2]Department of Housing Preservation and Development (HPD), issued February 23, 2011, terminating petitioner's Section 8 rent subsidy effective March 31, 2011; (ii) directing HPD to reinstate petitioner's subsidy; and (iii) directing HPD to pay petitioner's subsidy retroactive to March 31, 2011. Petitioner asserts that the decision was arbitrary and capricious, an abuse of discretion, in violation of due process, federal law and regulations, and HPD's own policies and procedures.

In opposition, HPD argues that the agency's order was rational and reasonable, made as a result of an informal hearing, and supported by substantial evidence. Further, HPD asserts that it acted lawfully and in accordance with public policy concerns in terminating petitioner's Section 8 subsidy ^[FN1]. For the reasons stated below, the petition is granted as provided below.

Petitioner currently resides at 122 Fenimore Street, Apt. E1 BSMT, Brooklyn, NY 11225 (Subject Premises), with her four minor children. Petitioner receives Section 8 subsidy pursuant to the United States Housing Act of 1937 (Act). Section 8 of the Act authorizes the Secretary of Housing and Urban Development (HUD) "to enter into annual contributions contracts with public housing agencies pursuant to which such agencies may enter into contracts to make assistance payments to owners of existing dwelling units in accordance with this section." 42 U.S.C. § 1437f(b)(1). HPD administers the Section 8 subsidy, pursuant to the Act, which was issued to petitioner. The housing accommodation involved in this Article 78 proceeding, at all relevant times, has been subject to the Act. HPD issued an administrative agency decision to terminate petitioner's Section 8 subsidy, which is the subject of this Article 78.

Petitioner became a participant of HPD's Section 8 rent subsidy program in 2000. Due to a fire in her apartment, petitioner was forced to move. Petitioner and her four minor children moved into the Subject Premises in 2005. Petitioner had problems receiving her mail at the Subject Premises and was not assigned a mailbox in her building until June of 2008. Subsequently, petitioner discovered she was still not receiving all of her mail and updated her address to "E1 BSMT", of which she informed HPD.

In 2010, petitioner's recertification package was not returned to HPD within the specified time and her Section 8 subsidy was subsequently terminated. Petitioner appealed the termination in a timely manner and her Section 8 subsidy was reinstated pending the outcome of the administrative hearing. An informal hearing was held, at which HPD appeared by hearing representative Gabriel Mombrun (Mombrun) and petitioner appeared pro se. Following the informal hearing, the hearing officer issued a decision, dated February 23, 2011 (Informal Hearing Decision), which upheld the decision of HPD to terminate petitioner's Section 8 subsidy. Thereafter, Petitioner commenced the within Article 78 proceeding.

Here, HPD argues that the requisite procedures were followed in that a recertification package was sent to petitioner, as well as the requisite notices, prior to termination of her rent subsidy. HPD further argues that HUD provides for specific grounds for termination of assistance under the Section 8 program, which include "[i]f the family violates any family obligations under the program." 24 C.F.R. § 982.552(c)(1)(i). 24 C.F.R. § 982.551(b)(2) sets forth one such family obligation; "[t]he family must supply any information requested by the...[public housing agency] or HUD for use in a regularly scheduled reexamination or interim reexamination of family income and composition in accordance with HUD requirements." HPD contends that in 2010 petitioner failed to timely recertify.

The pre-termination notice, dated July 28, 2010, states that petitioner's "Section 8 rent subsidy may be terminated for the reason...[that petitioner] did not return [her] recertification package". Verified Answer, Exh. T. Additionally, the Notice of Section 8 Rent Subsidy Termination, dated September 21, 2010, states that petitioner's "Section 8 rent subsidy will be terminated for the reason...[that petitioner] did not return [her] recertification package". Verified Answer, Exh. U. At the hearing, HPD provided documentary evidence which included petitioner's application for Section 8 rental assistance, pre-termination notices from 2006, 2007, 2009, and 2010, HPD's elite note history ^[FN2], as well as other documents.

At the hearing, petitioner, pro se, argued that she did not receive the recertification package for 2010 or the pre-termination notice. Petitioner contends that she contacted HPD in August 2010 to inquire about an inspection which was scheduled, but did not occur. During this telephone conversation, petitioner further contends that an HPD representative advised her that she failed to recertify, but when she went to HPD with her documents, she was advised to wait for a letter. Petitioner's contentions are contested by HPD which argues that, according to the elite notes, petitioner did not contact HPD by telephone until September 29, 2010, after her subsidy was terminated.

The hearing officer found petitioner's testimony to be incredible. The Informal Hearing Decision states that petitioner "wrote on the Appeal, As far as I know there's no problem with my mailbox. I've no idea why I didn't receive it. I have the necessary documents needed to complete my recertification' ". Informal Hearing Decision, p. 4. The Informal Hearing Decision goes on to state that petitioner "testified that she has had problems receiving mail at the Premises since 2006...[Petitioner] has submitted conflicting evidence regarding her mail." Id. The Informal Hearing Decision states that failure to timely recertify is a permissible ground for termination and that the circumstances surrounding petitioner's failure to timely recertify is not an acceptable excuse as petitioner "wrote on the Appeal that as far as I know there's no problem [*4]with my mailbox"...[but] testified that she told HPD that she was not receiving all her mail...[and] was unable to substantiate her claim." Informal Hearing Decision, p. 6. Additionally, the Informal Hearing Decision states that "[i]mposing a lesser punishment would compromise the integrity of the Section 8 program and is not appropriate in this case. Participant's history of non-compliance from 2006 through 2010 caused HPD serious administrative burden and expense in conducting reexaminations". Informal Hearing Decision, p. 6.

The Appellate Division, First Department, has stated that "[t]he forfeiture of public housing accommodations is a drastic penalty because, for many of its residents, it constitutes a tenancy of last resort". In re Perez v Rhea, 87 AD3d 476, 479 (1st Dep't 2011)(internal quotations omitted). To that end, it is consistently held that due process must be provided in an administrative proceeding. "The first fundamental of due process is notice of the charges made." Matter of Murray v Murphy, 24 NY2d 150, 157 (1969). Additionally, the Appellate Division, First Department has held that "[a]bsent proof that [the administrator of the Section 8 rent subsidy] complied with the required procedures, its termination of petitioner's Section 8 subsidy was in violation of lawful procedure." Matter of Fair v Finkel, 284 AD2d 126, 129 (1st Dep't 2001).

Here, while the Informal Hearing Decision states that "[a]ccording to the Elite Note History print-out, HPD mailed the Recertification Package to the Premises on May 6th, 2010", a review of the record contradicts this finding:

Ms. Gajardason [observing HPD hearing officer]: ...to show that the HPD actually did in fact mail a recert on that date, because we don't really - - all I know that a recert was plausibly mailed to the participant is the preterm notice on that date. But that document, we would hope, that it was mailed to her on 5/6/2010, that it would show up on that, because it's not in the case file, it's not noted where it's supposed to be in the case file.

Mr. Mombrun: A preterm that's not completed would never be in the case file. There are only completed preterms in the case file.

Ms. Gajardason: I'm not talking about a preterm, I'm talking about an indication that a recert package was sent to her. It's not for 2010, 5/6/2010, it's not noted here, and it's not noted in the elite note history.

[Informal Hearing Transcript, p. 29 , l. 3-18]

Hearing Officer Mencia: ...Mr. Mombrun, is there any way, or do you have any document that shows that the recertification was sent on the date that the preterm states, Exhibit 11?

Mr. Mombrun: I don't know any document that we would have, in order to exhibit that a recert was sent, would be what the agency would call the elite document printout for recerts. So I would have to give you one of those.

Hearing Officer Mencia: But you don't have that with you in the case file? [*5]

Mr. Mombrun: I don't have one...

[Informal Hearing Transcript, p. 30 , l. 8-19]

Nowhere in the hearing does HPD provide unequivocal proof that the recertification package was sent by it to petitioner. Despite HPD's failure to substantiate its claim with documentary evidence, the hearing officer made an arbitrary and capricious finding that HPD did, in fact, send the 2010 recertification package to petitioner. The Informal Hearing Decision cannot stand as it was arbitrary and capricious.

Moreover, "[w]here we are involved with such a fundamental constitutional right as the right to be put on notice of the charges made, prejudice [arising from a violation of that right] will be presumed." Matter of Murray v Murphy, 24 NY2d 150, 157 (1969). "[N]o person may lose substantial rights because of wrongdoing shown by the evidence, but not charged." Id. See also Matter of Sulzer v Environmental Control Bd. of City of NY, 165 AD2d 270, 280-281 (1st Dep't 1991); Matter of Santiago v Blum, 91 AD2d 505, 506 (1st Dep't 1982). Here, assuming in arguendo that petitioner received the 2010 pre-termination notice, such notice states only that petitioner's "Section 8 rent subsidy may be terminated for the reason...[that petitioner] did not return [her] recertification package" from 2010. Verified Answer, Exh. T. Likewise, the Notice of Section 8 Rent Subsidy Termination, dated September 21, 2010, states only that petitioner's "Section 8 rent subsidy will be terminated for the reason...[that petitioner] did not return [her] recertification package" from 2010. Verified Answer, Exh. U. The decision, however, specifically considered and mentioned petitioner's "history of non-compliance from 2006 through 2010", and provides it as the basis for why a lesser punishment was not imposed. Based on HPD's failure to prove that the 2010 recertification package was sent to petitioner, and HPD's failure to provide petitioner with notice that her former recertification history would be at issue during the administrative hearing, the determination by HPD dated February 23, 2010 was arbitrary and capricious. Therefore, petitioner's Article 78 petition seeking to annul such determination is hereby granted.

Accordingly, it is

ORDERED that the petition is granted and the hearing decision, dated February 23, 2011, terminating petitioner's Section 8 subsidy, is vacated; and it is further

ORDERED that petitioner's Section 8 subsidy is hereby reinstated retroactive to March 31, 2011; and it is further

ORDERED that within 30 days of entry of this order petitioner shall serve a copy upon respondent New York City Department of Housing Preservation and Development with notice of entry.

Dated: December 14, 2011

DORIS LING-COHAN, J.S.C.