Spady v. Mount Vernon Housing Authority

notified them by letter. Upon reconsideration of the application after the intervention of the Legal Aid Society and others on petitioners’ behalf, a conference was held at which all views were aired. This conference was reported to a regular meeting of the Authority. The Authority unanimously adhered to its previous decision not to admit petitioners because they “ did not meet the standards of desirability of the State of New York.” Such standards are set forth in the State rules and regulations relating to State-aided low-rent housing projects by municipal housing authorities (9 NYCRR 1627-7.2). The Authority’s investigation, meetings and conferences disclosed, and the Authority found as facts, that petitioner Vincent Spady had failed to reveal that he had also used the name Bentley; that under the latter name he had been arrested for burglary in the third degree and, in a separate incident, had been indicted for robbery in the second degree and grand larceny in the third degree. It is true that no indictment was ever returned upon the burglary charge (the complaining witness having failed to testify before the Grand Jury) and that the robbery indictment was subsequently dismissed upon Spady’s application to be certified to the Narcotic Addiction. Control Commission (Mental Hygiene Law, § 210). However, he never denied the acts underlying these charges. Instead, his claim was one of rehabilitation. The Authority was entitled to disbelieve this claim, particularly where one part-time employer, Spady’s uncle, would not give him a favorable reference and another more recent full-time employer stated he had fired Spady because of drugs “ and a lot of other things”. Accordingly, we conclude that appellant’s determination that petitioners were ineligible for public housing is neither arbitrary nor capricious. It has a rational basis and should be confirmed (Matter of Manigo v. New York City Mousing Auth., 51 Mise 2d 829, affd. 27 A D 2d 803 , cert. den. 389. U. S. 1008; see, also, Matter of Edwards v. Mount Vernon Mousing Auth., 39 A D 2d 543 , mot. for iv. to opp. den. 31 N Y 2d 641 ; Matter of Fuller v. TJrstadt, 28 N Y 2d 315 , supra). Munder, Latham and Gulotta, JJ., concur; Hopkins, Acting P. J., and Benjamin, J., dissent and vote to affirm, Hopkins, Acting P. J., on the opinion of Special Term and Benjamin, J., with the following memorandum: Once one is declared eligible for public housing accommodations a hearing is required if the status of eligibility is sought to be revoked. Further, the mere fact that the applicant is undergoing methadone treatment for narcotic addiction is not a rational basis upon which the Authority may properly determine that he is ineligible. Petitioners applied for public housing on February 8, 1971, using their lawful names. They used forms provided by the Authority for this purpose and correctly gave all of the information requested. No inquiry, oral or written, was made as to use of other names. The Authority conducted an investigation into petitioners’ eligibility, found them eligible, assigned them an apartment, and tendered a monthly lease to them which they executed on July 9, 1971. The Authority accepted one month’s rent and a security deposit from welfare authorities on petitioners’ behalf. Thereafter, the Authority received information adverse to petitioner Vincent Spady. It refused to execute the lease and, after informal conferences, the Authority notified petitioners of their ineligibility by letter dated July 14, 1971. On March 28, 1972, the Authority adhered to its original determination. The bases of ineligibility are fraud in the application in that petitioner Vincent Spady failed to disclose his use of the name Bentley, his arrest record and his certification to NACO as an addict. Whether petitioners are entitled to a hearing on the charges which caused them to be declared ineligible is a matter of first impression to this court under the circumstances presented by this record. In Matter of Vinson v. Greenburgh Housing Auth.

( 29 A D 2d 338 , affd. 27 N Y 2d 675 ) we held that a State agency owning and operating a low-rent public housing project could not arbitrarily evict a low-income tenant under an automatically-renewed monthly lease and that the agency had to meet the requirements of due process by giving the tenant notice of its reasons for the proposed eviction and an opportunity to rebut them. In Matter of Fuller v. Urstadt ( 35 A D 2d 537 , revd. 28 N Y 2d 315 ) a majority of this court failed to apply the rule of Vinson (supra) to a public housing tenant whose three-year lease was not renewed. I dissented on the authority of Vinson (supra ). On appeal, the Court of Appeals reversed this court’s order and granted the petition to the extent of remanding the matter to the State agency for a limited hearing to be held after petitioners would be advised by the agency of the reasons for the refusal to give them a renewal lease. In Matter of Williams v. White Plains Housing Auth. ( 35 A D 2d 965 ) we considered the nature of the hearing to be afforded a public housing tenant whose eviction is sought. Thus, we held that minimal due process standards must be read into the relevant regulation: “Among these standards are adequate notice both of the acts which form the basis of the tenant’s alleged undesirability and the consequences of an adverse determination, together with the right to be represented by counsel, to confront witnesses and to challenge the evidence upon which the Authority relies in making its determination.” In Matter of Sumpter v. White Plains Housing Auth. ( 36 A D 2d 728 , affd. 29 N Y 2d 420 , cert. den. 406 U. S. 928 ) the issue before us concerned the rights of a rejected applicant for public housing. We held that such a person is not entitled to a full evidentiary hearing in, each case of rejection and that, instead, it was sufficient for the Authority to comply with section 156-a of the Public Housing Law, which requires that an applicant who is determined ineligible for public housing shall be informed that he may be apprised of the reason or reasons therefor at a personal interview at the Authority’s office. We distinguished Williams (supra) on the ground that it involved the eviction of a tenant already in public housing. This distinction is critical (Matter of Sumpter v. White Plains Housing Auth., 29 N Y 2d 420 , 424, supra). The instant case does not fall neatly into any of the decided cases. It is true that petitioners never entered into actual possession (see Matter of Williams v. White Plains Housing Auth., 35 A D 2d 965 , supra; Matter of Fuller v. Urstadt, 35 A D 2d 537 , revd. 28 N Y 2d 315 , supra). It is also true that petitioners are not mere applicants (see Matter of Sumpter v. White Plains Housing Auth., supra), since the Authority admitted in paragraph 22 of its answer to the petition that it had “found the said Petitioner Vincent Spady to be eligible for admission, and agreed to lease an apartment to him and his wife.” The Authority also assigned petitioners an apartment, tendered its monthly lease to him and, upon his execution of the lease, accepted the first month’s rent and a security deposit. In my opinion, petitioners progressed so far in the tenancy process that they are tenants within the meaning of Williams, Fuller and Sumpter (supra). It follows that petitioners must be afforded an evidentiary hearing at which they shall be afforded the due process rights outlined in Williams. •My conclusion is supported by Goldberg v. Kelly ( 397 U. S. 254 , 264), wherein the court stated as to termination of welfare benefits: “ Thus the crucial factor in this context- — a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended — is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while,he waits. Since he lacks independent resoufces, his situation becomes

program and demonstrate that they have become rehabilitated be freed from harassing regulations and unfair practices. By any stretch of the imagination, Mr. Spady ought to be acceptable for public housing” (italics supplied). Herbert Cave, Spady’s personal physician, wrote that the New York City Housing Authority not only accepted individuals undergoing methadone treatment “ but in most instances gave them preferential treatment in order to assist in their rehabilitation.” Leonard Casey, service manager at Spady’s last place of employment, affirmed under oath that Spady was discharged from that employment because of a slowdown and not for any reason related to drugs. The State has spent countless millions of dollars to combat drug addiction and it is . the policy of the State to treat drug addiction as a disease by comprehensive programs of treatment (Mental Hygiene Law, § 200). Petitioner Vincent Spady is successfully undergoing treatment and shows no signs of regression. Neutral officials of State and municipal agencies have vouched for him. To deprive him of public housing accommodations now is yet another unfortunate revolution in the “revolving door” o£ drug addiction (see People v. Maranez, 39 A D 2d 589 , affd. 31 N Y 2d 828 ). I conclude that the determination of the Authority in declaring petitioners ineligible lacks rational basis and was properly annulled (CPLR 7803, subd. 3; Matter of Sanders v. Cruise, 10 Misc 2d 533 ; Matter of Manigo v. New York City Housing Auth., 51 Misc 2d 829 , affd. 27 A D 2d 803 , cert. den. 389 U. S. 1008 ). Accordingly, petitioners were entitled to a hearing when, in effect, the previous grant, of public housing accommodations was revoked by appellant’s refusal to sign the lease. In addition, appellant’s ground for revocation — petitioner Vincent Spady’s narcotic addiction treatment — is wholly without rational basis, at complete variance with the State’s public policy of treating narcotic addiction as a disease, and contrary to the nature and purpose of public housing. [ 70 Misc 2d 270 .]