Supreme Court, New York County, September 26, 2018

MFY Legal Services, Inc., New York City, for petitioner.

Zachary W. Carter, Corporation Counsel, New York City, for Vicki Been, as Commissioner of the New York City's Department of Housing Preservation and Development, respondent.

Gutman, Mintz, Baker & Sonnenfeld LLP, New Hyde Park, for Clinton Towers Housing Co., Inc., respondent.

In its interim order in this proceeding, the court set forth the underlying facts and pertinent arguments in detail (Matter of Delgado v Been, 59 Misc 3d 810 [Sup Ct, NY County 2018]). Therefore, it incorporates the discussion contained in the interim order and presents an abbreviated version below.

Since 2007, petitioner, who has mental and physical health problems, has resided in Mitchell-Lama housing (see Private Housing Finance Law § 10 et seq.) at Clinton Towers in Manhattan. Before a landlord can terminate a Mitchell-Lama tenancy in Housing Court, the New York City Rules and Regulations require Housing Preservation and Development (HPD) to conduct an administrative hearing on the matter (28 RCNY 3-18; Wong v Gouverneur Gardens Hous. Corp., 308 AD2d 301, 304 [1st Dept 2003]). The rule allows HPD to issue the certificate of eviction only if it is satisfied there are grounds for the landlord to proceed to Housing Court (28 RCNY 3-18). Moreover, if HPD issues a certificate of eviction, the tenant can seek judicial review under article 78 of the CPLR (id.). These additional layers of review are in keeping with the purpose of Mitchell-Lama, which is to provide "safe and sanitary dwelling or non-housekeeping accommodations" for families and individuals of low and lower-middle income, including individuals who are disabled or are senior citizens (Private Housing Finance Law § 11; see Private Housing Finance Law § 11-a; Matter of Richman Plaza Garage Corp. v New York State Div. of Hous. & Community Renewal, 112 AD3d 474, 474 [1st Dept 2013]).

In the case at hand, Clinton Towers applied for a certificate of eviction against petitioner from HPD. HPD scheduled a hearing on January 7, 2015. Upon petitioner's default, HPD{**61 Misc 3d at 916} adjourned the matter to February 26, but petitioner defaulted again. HPD held the hearing without petitioner and issued a certificate of eviction to Clinton Towers, which then began an eviction proceeding in Housing Court. There, Adult Protective Services engaged Dr. Candice Hacker, a psychiatrist, to evaluate petitioner. Dr. Hacker determined that petitioner suffered from several mental health conditions which rendered her unable to represent herself or defend her rights. Following Dr. Hacker's evaluation, the Housing Court judge appointed a guardian ad litem (GAL) to petitioner. The GAL retained legal counsel on petitioner's behalf, and, through counsel, petitioner moved to vacate her default in the hearing before HPD. Petitioner argued that HPD should not have granted the certificate of eviction because without a GAL she had been unable to appear and represent her position.

On August 11, 2016, HPD Hearing Officer Helen Levy vacated the certificate of eviction because "the HPD hearing . . . would not have proceeded if the agency had been aware of respondent's disability and her previously judged inability to adequately defend or prosecute her rights" (Matter of Clinton Towers Housing Co., Inc. v Delgado, Aug. 11, 2016, Levy, A.H.O., No. Decis-H764). Nevertheless, HPD waived the required hearing because, it stated, "there is no mechanism for HPD Administrative Hearing Officers to appoint a GAL" (id.). In so doing, HPD relied on 28 RCNY 3-18 (e), which governs emergency evictions and states that a hearing

"may be waived at the sole discretion of HPD in any case in which HPD determines that the health or safety of the tenant/cooperators of a development is jeopardized by another tenant/cooperator or his or her family, members of his or her household or visitors to his or her premises" (emphasis supplied).

Petitioner then commenced this article 78 proceeding challenging the decision to waive her hearing. Essentially, petitioner alleges that HPD has violated the Americans with Disabilities Act of 1990 (42 USC § 12101 et seq. [ADA]), her procedural due process rights, and the Rehabilitation Act of 1973 (29 USC § 794 [a]), and that the Hearing Officer committed an error of law when she relied on a provision relating to emergency evictions but did not cite an emergency. This court's interim order denied HPD's cross motion to dismiss. The court rejected HPD's argument that the proceeding was moot due to the Hearing Officer's August 11, 2016 order—as the decision in {**61 Misc 3d at 917}that order to bypass HPD review is the object of the proceeding before the court. In addition, the court rejected the argument that HPD's determination not to grant petitioner a hearing was [*3]rational as a matter of law, reasoning that the Hearing Officer relied on 28 RCNY 3-18 (e) but did not cite to any emergency which necessitated a waiver of petitioner's right to a hearing before HPD. The court also noted that HPD did not explain why it did not ask petitioner's Housing Court GAL and attorney if they would represent her at the hearing, adjourn the hearing while a petition to appoint a GAL was instituted in the Supreme Court, or otherwise attempt to provide representation for petitioner in an HPD hearing. For that reason, too, the determination was not rational. In rejecting HPD's position that the Housing Court proceeding adequately protects petitioner's rights, the court noted that the Mitchell-Lama Law's hearing requirement exists to provide tenants with an added layer of protection and, by waiving the hearing, HPD removed this protection. In addition, the court found that the Hearing Officer's determination bypassing HPD review waived not only petitioner's right to a hearing but her right to an article 78 review of the hearing.

Now, HPD has submitted its answer, along with a memorandum of law and an affirmation by Hearing Officer Helen Levy. The answer states that Levy's decision to waive the hearing was based on evidence which "established that petitioner was a threat to the health and safety of the other tenants" and that her inability to represent herself constituted a threat to her own health and safety (answer ¶ 83). It therefore argues that the decision was a rational exercise of discretion under 28 RCNY 3-18 (e). It was also rational to waive the hearing, the answer alleges, because HPD has no procedure in place to appoint a guardian. HPD states that petitioner cannot demand that HPD institute such procedure. The memorandum of law asserts that HPD did not violate the ADA or equal protection because it provided petitioner with due process.

Levy's affirmation further notes that petitioner had guests, unauthorized residents, and unregistered dogs in her apartment and that one of the guests vandalized the security camera in the hallway. Levy states that if a tenant is a danger to herself "or is incapable of defending or prosecuting her rights" (Levy affirmation ¶ 12), then HPD may issue a waiver. Levy also states that the waiver "benefits" petitioner because it allows her to proceed to Housing Court, where she may obtain a{**61 Misc 3d at 918} GAL (Levy affirmation ¶¶ 14, 26). Moreover, she states, article 78 provides only limited grounds for review, but the appeal of a Housing Court decision allows for a "full appeal" (id.).

In reply, petitioner notes that Levy's affirmation and the answer improperly justify Levy's August 11, 2016 determination for reasons not relied on in the determination itself. Petitioner argues that it is impermissible to include new justifications, as the court can only consider the evidence and arguments before the Hearing Officer and the statements in the resulting order. Respondents' statement that the Housing Court proceeding is superior to an HPD proceeding, petitioner argues, is contrary to the goals of the Mitchell-Lama Laws and to the conclusions this court reached in its interim order. Petitioner reiterates that, by this practice, respondent creates "a separate system of jurisprudence for Mitchell-Lama tenants with disabilities" (mem of law in reply at 5), in violation of the Americans with Disabilities Act and the Due Process Clause in the State and Federal Constitutions. In addition, petitioner states, her request is for a reasonable accommodation under the ADA, and such accommodation will not require HPD to alter its operations in any fundamental way. The fact that Mitchell-Lama does not expressly discuss the issue of GALs, petitioner states, does not mean that HPD is precluded from appointing one, especially as Mitchell-Lama requires compliance with all state, federal, and local laws and this implicitly includes the ADA.

The court grants the petition and remands the matter to HPD for the appointment of a guardian and a full hearing. As petitioner properly notes, respondent's argument that an emergency existed, justifying the invocation of 28 RCNY 3-18 (e), must be disregarded. "[J]udicial review of an administrative determination is limited to the grounds invoked by the agency and the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis" (Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 74 [2017] [internal quotation marks omitted], citing Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758 [1991]). Accordingly, courts "can only review the grounds presented by the agency at the time of its determination" (Matter of Weill v New York City Dept. of Educ., 61 AD3d 407, 408 [1st Dept 2009]). The Hearing{**61 Misc 3d at 919} Officer's determination made no mention of petitioner's health and well-being or those of the other tenants in the building. In addition, the Levy affirmation does not state that Levy relied on this information or that she deemed the situation an "emergency" within the meaning of 28 RCNY 3-18 (e) when she issued her order. Furthermore, the rationale on which Hearing Officer Levy relied—that there is no internal procedure for the appointment of a guardian—is not an emergency under 28 RCNY 3-18 (e). Instead, it is a reason for an adjournment of the hearing so that a GAL may be appointed.

In addition, the court rejects respondent's position that the transfer to Housing Court without the mandated proceeding places petitioner in a better position than if she had a hearing in addition to the Housing Court proceeding. It adheres to the reasons set forth in its earlier decision and it incorporates them by reference (see Matter of Delgado v Been, 59 Misc 3d 810, 815 [2018]). The court rejects respondent's contention that the challenged order resolved the issues in that order. Moreover, to the extent that HPD denies mentally disabled tenants who cannot represent their own interests the right to a hearing—a right which is available to tenants not encumbered by a disability—the court finds a violation of the ADA (see 42 USC § 12132 [stating that individuals with disabilities shall not "be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity"]).

The court additionally stresses, as it stated in its interim order, that even without instituting a procedure for the appointment of a GAL, HPD has the ability to adjourn a hearing pending the appointment of a guardian in a court with such jurisdiction, of implementing a procedure which provides disabled tenants with a GAL, or of making some other accommodation for such individuals. HPD has not indicated why these or other options are impossible. It is not the role of this court to dictate how HPD should proceed, but it is the court's duty to direct HPD not to waive hearings simply because it does not have some mechanism or plan for obtaining GALs. The court further notes that not only the Housing Court but the New York City Housing Authority have programs in place. There is no reason why tenants appearing before HPD should have lesser rights.

The court has considered all remaining arguments as well, even if they are not addressed in this decision.{**61 Misc 3d at 920}

Accordingly, it is ordered and adjudged that the petition is granted; and it is further ordered and adjudged that the petition is granted to the extent of annulling the August 11, 2016 decision by Hearing Officer Levy; and it is further ordered and adjudged that the court remands this matter to respondent, who shall [*4]conduct further proceedings consistent with this court's decision.