In this Article 78 proceeding, petitioner Lileta Feister seeks an order that annuls and reverses respondents' July 9, 2014 determination terminating petitioners' tenancy at the Lincoln Houses in Manhattan, or alternatively reopens the hearing and remands the matter. Petitioner also seeks declaratory relief that, as a matter of law, termination of her tenancy was arbitrary and capricious and in violation of anti-discrimination laws. In addition she seeks attorney's fees and the costs of prosecuting this proceeding. For the reasons stated below, the petition is remanded to the New York City Housing Authority (NYCHA).

Petitioner has lived at the Lincoln Houses, a public housing development owned and operated by respondents, since 2005. On March 22, 2011, the Housing Authority sent petitioner notice that it had recommended termination of her tenancy due to chronic rent delinquency. In May 2012, the New York City Police Department confiscated drugs from petitioner's apartment and arrested a woman named Tiffanee Adams, who was not in petitioner's apartment at the time of the arrest. On August 29, 2012, respondents amended the charges against petitioner to include failure to pay rent from March 2011 to August 2012, non-desirability, and breach of rules and regulations. A hearing took place over the course of three days on July 24, 2013, November 14, 2013, and March 20, 2014. Petitioner was represented by attorneys from MFY legal services and a guardian ad litem (GAL) appointed by NYCHA. In her closing statement, petitioner requested a reasonable accommodation in light of multiple disabilities, which she had described during the hearing. Alternatively, she asked that the hearing officer impose measures less drastic than eviction, such as enrollment in a financial management program. In respondents' closing statement they asserted that there is no proof of petitioner's cognitive deficiency.

On May 19, 2014 the hearing officer sustained one charge for non-desirability, for unlawful possession of marijuana; one for breach of rules and regulations, for failing to refrain [*2]from or failing to cause individuals on the premises with her consent to refrain from illegal or other activity referred to in her lease agreement; and one for chronic rent delinquency. The hearing officer found the evidence presented was insufficient to sustain the non-desirability charge for sale or attempted sale of a controlled substance or the breach of rules and regulations charge for permitting an unauthorized occupant to reside in her apartment. The parties submitted post-hearing briefs. Petitioner's brief included the request for reasonable accommodation. The hearing officer ultimately determined that respondents were entitled to terminate petitioner's tenancy. In her conclusions, she noted that if not for the chronic rent delinquency finding, the appropriate sanction would have been permanent exclusion of Ms. Adams and a probationary period for petitioner. She did not discuss the request for reasonable accommodation. On July 9, 2014 NYCHA issued its determination terminating petitioner's occupancy.

On October 10, 2014, petitioner filed this Article 78 proceeding against respondents. Petitioner contends that because she has severe psychiatric and physical disabilities including schizoaffective disorder and depression, which make it difficult for her to pay rent on time, respondents' termination of her tenancy was arbitrary and capricious, an abuse of discretion, and shocking to the conscience. Petitioner states that she requested a reasonable accommodation to resolve the alleged delinquency and that counsel failed to provide it despite respondents' own assessment that she needed a GAL for the hearing. In addition to being arbitrary and capricious, she argues, the decision to terminate her tenancy violated federal anti-discrimination laws. Further, Petitioner contends that it is undisputed that she was not aware of or involved in the alleged drug activity and that she is amenable to a permanent exclusion of Ms. Adams.

Petitioner also argues that the hearing officer's decision is an error of law. She states that the undisputed facts presented at the hearing demonstrate that she is disabled and does not pose a threat to the health of safety of the other tenants. By choosing the most punitive disposition available, she asserts, the hearing officer violated both NYCHA's termination of tenancy procedures, which permit a probationary period and a referral to social services, and the Americans with Disabilities Act (ADA), which requires respondents to provide her with a reasonable accommodation.

In response, respondents argue that the petition should be transferred to the Appellate Division because it alleges that the hearing officer's determination is not supported by substantial evidence. They assert that petitioner fails to state a cause of action upon which relief may be granted, and that their determination is rational and supported by substantial evidence as well as by NYCHA's procedures and applicable law. They also assert that petitioner's claim that NYCHA failed to reasonably accommodate her was not raised until her post-hearing memorandum and thus is untimely and cannot be considered.

Respondents contend that under federal law, termination of tenancy is the appropriate penalty for tenants whose guests engage in criminal drug activity. They argue that petitioner is incorrect that her lack of awareness of and involvement in the drug activity is undisputed. They argue that their decision does not shock the conscience, as illegal drug activity poses a threat to the housing project and the health and safety of other residents. Additionally, they argue that chronic rent delinquency has serious consequences for other residents and eligible and deserving families on the waiting list. Inability to collect rent, they state, undermines the housing authority's ability to satisfy its statutory mandate to maintain decedent, safe, and sanitary public housing for its residents. They add that termination of petitioner's tenancy serves to deter other residents from engaging in drug activity and failing to pay rent. As their determination is rational [*3]and supported by substantial evidence of non-desirability and rent delinquency, they assert, the Court may not interfere.

In reply, petitioner states that the Supreme Court has jurisdiction because her petition challenges the proportionality of NYCHA's penalty, not whether there was substantial evidence of chronic rent delinquency. Petitioner contends that she has not waived any claims as she requested a reasonable accommodation in her closing statement at the hearing and as the parties made post-hearing submissions before the record was closed. Additionally, petitioner argues that she is entitled to request a reasonable accommodation at any point. Petitioner claims that respondents incorrectly emphasize charges related to alleged drug activity, when the hearing officer specifically stated she was terminating petitioner's tenancy based on the chronic rent delinquency charge only. She goes on to say that the hearing officer stated that if not for the rent delinquency charge, the appropriate sanction would have been a permanent exclusion of Ms. Adams. Contrary to respondents' contention that there is no proof of her disability, petitioner argues that she was appointed a GAL for this proceeding pursuant to respondent's referral and that she testified as to her disability status at the hearing.

Petitioner contends that the hearing officer's decision violated the ADA by failing to acknowledge her reasonable accommodation request even though she made it when the record was still open. Further, she claims that respondents' arguments that she did not request a reasonable accommodation at the hearing and did not offer evidence of her disability are improper attempts to validate the hearing officer's decision in hindsight. She argues that respondents' obligation to provide a reasonable accommodation under the ADA supersedes competing considerations such as the example it sets for other tenants.

Additionally, petitioner states that respondents attempt to introduce evidence not included in the administrative record regarding chronic rent delinquency and documents regarding the ways in which they followed their own procedures with respect to Ms. Feister. Petitioner argues this is prejudicial and should not be considered by the court. Petitioner states that the accommodation she requests does not require a fundamental alteration to NYCHA's operations and that respondents routinely accept third party payments. Moreover, she states that the termination of her tenancy would have severe consequences and would likely result in her homelessness. She maintains that she is not asking to be exempt from paying rent on time; she is requesting additional assistance to ensure she pays rent on time without becoming homeless.

In an Article 78 proceeding, the Court reviews agency decisions to determine whether an action violates lawful procedures, is arbitrary or capricious, or is affected by an error of law. E.g., Pell v. Bd. of Educ., 34 NY2d 222, 231 (1974); Roberts v. Gavin, 96 AD3d 669, 671 (1st Dep't 2012). The arbitrary or capricious test chiefly "relates to whether a particular action should have been taken or is justified and whether the administrative action is [without] foundation in fact." Pell, 34 NY2d at 231. "Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard. Id.

Initially, the Court finds that petitioner's request for a reasonable accommodation was timely. Contrary to respondents' contention, the record shows that petitioner made the request in her closing statement. Additionally, the hearing officer specified that the record remained open for the submission of post-hearing briefs, and it is uncontested that petitioner made the request in her post-hearing brief. As she articulated her request before the record was closed, the Court considers it timely and properly before the hearing officer. As petitioner states, however, respondents may not introduce evidence that was not included in the administrative record. See [*4]Yarbough v. Franco, 95 NY2d 342, 347 (2000). Thus, the Court does not consider the new documents attached to respondents' answer.

Next, the Court finds that the petition does not raise questions of substantial evidence. Petitioner does not challenge the hearing officer's findings that she was chronically delinquent with her rent, that controlled substances were found in her apartment, or that she failed to prevent her guest from engaging in illegal activity. The hearing officer did not find petitioner is not disabled, so petitioner does not challenge whether there is substantial evidence of her disability. Instead she argues that respondents' penalty is disproportionate to the findings made by the hearing officer in light of her background which includes her disability. This is a legal issue.

The Court finds that under normal circumstances termination of petitioner's tenancy would be deemed rational and in accordance with respondents' procedures. Respondents are entitled to control drug activity on their premises and receive timely rent payments. Given the circumstances before the Court, however, in connection with the alleged activities of Tiffanee Adams, petitioner's request for accommodation should be considered. The Court has determined that petitioner made a timely request for a reasonable accommodation to remedy her rent delinquency. While the extent of petitioner's disability is unclear, she receives SSI and the record reflects that respondents are aware she is disabled. Petitioner has been living in NYCHA housing for approximately a decade, and losing this apartment would likely result in homelessness for her. In light of petitioner's disability, financial status, and request for an accommodation so she can remedy the charges against her, the Court finds as matters of law that it is shocking to the conscience for her to be evicted without a probationary period. Additionally, the hearing officer did not conclude there was any involvement by petitioner with the drug activity, and petitioner was not arrested or charged by the police. While the hearing officer did not state that the termination of petitioner's tenancy was only based on the chronic rent delinquency charge, she did note that absent that charge, the appropriate outcome would be probation and permanent exclusion of Ms. Adams, and petitioner has already consented to this condition. The Court has considered the rest of the parties' arguments and they do not change the outcome.

Accordingly, it is

ORDERED that this matter is remanded to respondents with the recommendation that they reconsider upholding petitioner's tenancy with a probationary period, referral to social services, and permanent exclusion of Tiffanee Adams.