Supreme Court, Kings County, June 26, 2018

Law Offices of Christopher McCollum, Brooklyn (Christopher McCollum of counsel), for petitioner.

Zachary W. Carter, Corporation Counsel, New York City, for respondents.

Petitioner Christopher McCollum seeks an order vacating the March 1, 2016 determination of the New York City Mayor's Office of Housing Recovery Operations (HRO or respondent), which denied petitioner benefits under the Build It Back Program. Petitioner claims that he is eligible for benefits under Build It Back [*2]because his home was damaged by Hurricane Sandy.

The United States Department of Housing and Urban Development (HUD) allotted Community Development Block Grant Disaster Recovery (CDBG-DR) funds to New York City for Sandy recovery activities. The City implemented a disaster recovery program known as "Build It Back" that uses CDBG-DR funds to aid in the recovery of residential property damaged or destroyed by Sandy, and established HRO to administer the program (Administrative Code of City of NY § 28-112.11; Brooklyn Ctr. for Independence of Disabled v Bloomberg, 980 F Supp 2d 588, 629 [SD NY 2013]). Build It Back is administered in accordance with the Disaster Relief Appropriations Act of 2013 (Pub L 113-2, 127 US Stat 4 [113th Cong, 1st Sess, Jan. 29, 2013] [Sandy Act]) passed by Congress. The City's receipt of CDBG-DR funds creates an expectation that the funds will be used in accordance with federal mandates (Sapp v City of New York, 2013 NY Slip Op 32325[U], *2 [Sup Ct, NY County 2013]).

The Sandy Act provides that in order to receive CDBG-DR funds, the grantee must submit an "action plan" to the HUD Secretary detailing how it will use the funds to "address long-term recovery, restoration of infrastructure and housing, and economic revitalization in the most impacted and distressed areas." (Sandy Act, Pub L 113-2, 127 US Stat 4, 15.) In May 2013, HUD approved the City's CDBG-DR Action Plan (Action Plan), which has since been amended. (Community Development Block Grant Disaster Recovery, The City of New York Action Plan Amendment 11, https://www1.nyc.gov/assets/cdbgdr/documents/amendments/CDBG-DR%20Action%20Plan%20Amendment%2011%20%5bEnglish%5d.pdf.) Pursuant to the Action Plan, the City is required to draft policy and procedure manuals to ensure compliance with programmatic and financial requirements of CDBG-DR. (Action Plan at 156.) In{**61 Misc 3d at 380} accordance with this directive, the City established criteria for eligibility in the NYC Build It Back Policy Manual 1-4 Properties, Version 1.6 (Manual). It provides that "[t]his Manual constitutes the primary governance for the implementation of the one to four unit Repair, Reconstruction, Reimbursement and Relocation Programs." (Manual at 3-5.)

On November 25, 2013, petitioner applied for Build It Back benefits, claiming Sandy-related damages to his home, including multiple broken and cracked windows, and damage to the rear yard, chimney, facade, and roof tiles. In March 2014, an inspector from Build It Back visited petitioner's home to conduct a damage assessment and found "[n]o apparent storm related damages from Hurricane Sandy." In October 2014, petitioner's claim was denied based on the assessor's findings.

Petitioner submitted a request for review challenging this determination with an unsworn report of Paul J. Besmertnik, a home inspection engineer (the Engineer's Report), which did not bear any signature, certification, or professional seal. Based on a visual inspection of the property and what petitioner told him, Besmertnik estimated that it would cost almost $75,000 to make repairs to the Sandy-related damages to the glass panes, storm windows, chimney, and siding shingles. However, Besmertnik did not offer any explanation as to why he formed the opinion that the damages resulted from Sandy. HRO again denied petitioner's eligibility because the documentation he submitted did not demonstrate that the damage was caused by Sandy, and it suggested examples of acceptable documentation, such as correspondence showing Sandy-related assistance from FEMA, or an insurance payment for a Sandy-related structural loss. Petitioner appealed without offering further documentation [*3]supporting his claim, and HRO again denied petitioner's eligibility.

Petitioner claims that respondent's determination was arbitrary and capricious because it disregarded the Engineer's Report. Respondent contends that petitioner failed to meet the criteria for eligibility as set forth in the Manual.

In reviewing respondent's determination, the court must ascertain whether it was "arbitrary and capricious," and made "without sound basis in reason or regard to the facts." (Matter of Murphy v New York State Div. of Hous. & Community Renewal, 21 NY3d 649, 652, 654-655 [2013]; Matter of King-Rubie v Wambua, 141 AD3d 589, 589-590 [2d Dept 2016]; Matter of Morton v New York City Dept. of Hous. Preserv. & Dev., 93{**61 Misc 3d at 381} AD3d 727 [2d Dept 2012].) An agency's determination is deemed arbitrary and capricious if it has evaluated the facts using a standard that deviates from that which is expressly set forth in the statutes and regulations, or violates its own guidelines and policies. (See Matter of ACME Bus Corp. v Orange County, 28 NY3d 417 [2016] [Award of city contract under General Municipal Law § 104-b is arbitrary and capricious if municipality evaluates a proposal using a standard which deviates from a standard expressly set forth in the request for proposal]; Matter of Kallini v New York Inst. of Tech., 34 Misc 3d 1211[A], 2012 NY Slip Op 50045[U] [Sup Ct, Nassau County 2012] [Decision of school to suspend student for two years deemed arbitrary and capricious because it deviated from its own academic integrity policy].)

Pursuant to section 3.5.7 of the Manual, all applicants for assistance from Build It Back must verify that the residential unit sustained physical damage from Sandy. Damage is defined as "rain, wind and/or flood damage received as a direct result of the storm, which occurred on October 29, 2012 plus any subsequent damage related to the original storm damage." (Manual at 3-19.) Damage may be established in one of the following three ways: (1) the applicant's structure was tagged with a Department of Buildings (DOB) placard, as having suffered Sandy damage; (2) proof that the applicant received payment for structural loss from FEMA, National Flood Insurance Program (NFIP) or private insurance; or (3) a damage assessor from Build It Back confirmed that the structure was damaged by Sandy based upon visual observation.

It is undisputed that petitioner's house was not tagged with any placard from DOB as having suffered Sandy damage, and that petitioner did not receive payment for structural loss from FEMA, NFIP, or private insurance.^[FN*] Thus, petitioner could only verify Sandy damages with a report from a damage assessor from Build It Back, confirming, based upon visual observation, that petitioner's house was damaged by Sandy. However, petitioner fails in this regard because the assessor concluded in a detailed, photograph-supported damage assessment report (Assessment Report) dated March 15, 2014, that there were "[n]o apparent storm related damages from Hurricane Sandy."

{**61 Misc 3d at 382}Petitioner fails to disprove the damage assessor's findings. The Engineer's Report merely offers the conclusory opinion of Besmertnik that damages to the glass panes, storm windows, chimney and siding shingles were Sandy-related, without articulating a methodological or factual basis for this conclusion. In particular, the Engineer's Report does not explain the scientific methodology he used in concluding that the damages resulted from Sandy rather than from [*4]deferred maintenance, wear and tear and deterioration. (See Steven J. Inc. v Landmark Am. Ins. Co., 2015 WL 3849166, *5, 2015 US Dist LEXIS 80278, *15 [MD Pa, June 22, 2015, No. 1:14-CV-0474] [opinion testimony regarding Sandy-related damages precluded because it was not reliable, as it relied solely on the plaintiff's own claims of harm without scientific or technical information in order to test the plaintiff's claims].) Thus, this court finds that petitioner did not come forward with substantial affirmative evidence to disprove the Assessment Report.

In sum, petitioner has not shown that respondent in any way deviated from the standards set forth in the Manual when it considered petitioner's application for Build It Back benefits.

Accordingly, this court finds that respondent's determination was not "arbitrary and capricious" and was reasonably based on the facts. Therefore, the petition is denied.