Newton v. Municipal Housing Authority — 38 N.Y.2d 220

Majority

p. 220

In the Matter of Rhea Newton, Appellant, v Municipal Housing Authority for the City of Yonkers, Respondent.

Argued November 21, 1975;

decided January 6, 1976

Edmund Byrnes and John T. Hand for appellant.

A public housing authority may not evict a tenant of a State-aided project on the ground that the tenant failed or refused to report earned income, where such tenant is a recipient of monetary welfare assistance. (Matter of Vinson v Greenburgh Housing Auth., 29 AD2d 338 , 27 NY2d 675 .)

p. 221

Charles J. Macellaro for respondent.

A public housing authority may evict a tenant of a State-aided project on the ground that the tenant failed or refused to report earned income, where such tenant is a recipient of monetary welfare assistance. (Matter of Vinson v Greenburgh Housing Auth., 29 AD2d 338 , 27 NY2d 675 ; New York City Housing Auth. v Stern, 3 Misc 2d 1007 ; Greenbaum v New York City Housing Auth., 4 Misc 2d 781 ; New York City Housing Auth. v Shedletsky, 44 Misc 2d 338 ; Department of Welfare of City of N. Y. v Siebel, 6 NY2d 536 ; Matter of Sowa v Looney, 23 NY2d 329 ; Matter of Stammer v Board of Regents of Univ. of State of N. Y., 287 NY 359 ; Matter of Cianelli v Department of State of State of N. Y., 16 AD2d 352 ; Matter of Leogrande v State Liq. Auth., 25 AD2d 225 , 19 NY2d 418 ; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269 .)

Memorandum. In this article 78 proceeding to review and annul the Municipal Housing Authority’s determination that petitioner be evicted from a public housing project, we hold that a public housing authority may require a tenant to periodically furnish information concerning his income (and may provide to that effect in the lease), and may commence proceedings to evict a tenant in the event that the tenant fails, neglects or refuses to provide such information.

Pursuant to regulations promulgated by the State Commissioner of Housing and Community Renewal, it is the responsibility of a local public housing authority to review, at least once a year, the income of each tenant and members of each tenant’s household. (9 NYCRR 1627-2.2 [c].) To this end a tenant is required to furnish information concerning his income and that of any member of his household, and his failure, neglect or refusal to furnish such information or to cooperate in the verification of reported income is to be considered "non-cooperation”. (9 NYCRR 1627-2.11.) "Non-cooperation” is one of the grounds upon which a housing authority may institute summary proceedings to evict a tenant. (9 NYCRR 1627-6.3 [a] [4].) Likewise, willful misrepresentation or concealment by a tenant of any material fact which would affect his eligibility for continued occupancy or which would have a bearing on the rent to be paid is another ground for eviction. (9 NYCRR 1627-6.3 [a] [2].)

Here, paragraph 10 of the lease provides that the "Tenant hereby agrees to report to the Landlord any increase in the aggregate family income within one day prior to the first day

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of the month following the date such increase is received.” This provision merely restates the Authority’s right to receive such information and the tenant’s duty to provide it. Since the record contains substantial evidence to support the determination that petitioner failed, neglected or refused to furnish information as to her income during the second quarter of 1971 and the first quarter of 1972, we conclude that under both the lease and the regulations cited above the Authority was entitled to determine that she should be evicted on the basis that she failed to report income.

Petitioner’s reliance upon 9 NYCRR 1627-2.6 [c] [5] [i], which provided, in part, at the time this proceeding was commenced, that "[i]ncome reviews are not required of families or persons receiving full or partial monetary welfare assistance”, is misplaced. Nothing in that section forbids such a review; instead, it merely relieves the Authority of that responsibility as to one class of tenants. Indeed, to read this as forbidding an income review would directly contradict the regulations previously cited. We note that this ambiguity has been clarified in that the quoted language has been removed and the same section now provides in relevant part that "[i]ncome reviews may be omitted for families or persons with no source of income other than monetary welfare assistance but an authority may require such reviews for all or any such families or persons.” (9 NYCRR 1627-2.6 [c] [5] [iii].)

Accordingly, the judgment of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Fuchsberg and Cooke concur; Judges Gabrielli, Jones and Wachtler dissent and vote to reverse on the dissenting memorandum by Mr. Justice Fred J. Munder at the Appellate Division ( 47 AD2d 522 ).

Judgment affirmed, without costs, in a memorandum.

Cases cited

Vinson v. Greenburgh Housing Authority 29 AD2d 338 N.Y. App. Div. 1968-03-11 p. 220, p. 221
Vinson v. Greenburgh Housing Authority 27 NY2d 675 N.Y. 1970-07-01 p. 220, p. 221
New York City Housing Authority v. Stern 3 Misc 2d 1007 N.Y. Mun. Ct. 1956-12-21 p. 221
Greenbaum v. New York City Housing Authority 4 Misc 2d 781 N.Y. Sup. Ct. 1955-12-16 p. 221
New York City Housing Authority v. Shedletsky 44 Misc 2d 338 N.Y. Civ. Ct. 1964-10-26 p. 221
Department of Welfare v. Siebel 6 NY2d 536 N.Y. 1959-07-08 p. 221
Sowa v. Looney 23 NY2d 329 N.Y. 1968-12-11 p. 221
Stammer v. Board of Regents of the University 287 NY 359 N.Y. 1942-01-22 p. 221
Cianelli v. Department of State 16 AD2d 352 N.Y. App. Div. 1962-05-22 p. 221
Leogrande v. State Liquor Authority 25 AD2d 225 N.Y. App. Div. 1966-03-31 p. 221
Leogrande v. State Liquor Authority 19 NY2d 418 N.Y. 1967-04-20 p. 221
Sullivan County Harness Racing Ass'n v. Glasser 30 NY2d 269 N.Y. 1972-04-26 p. 221