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Court Decides Whether to Evict Domestic Violence Offender from Subsidized Housing

A woman from New York filed an action against the Chairman of the Housing Authority that owns and operates her apartment. The woman challenge certain policies, proceedings and practices of the Housing Authority and to compel them to establish specific criteria and definitions of non-desirability and clear guidelines and criteria for deciding to terminate, transfer or continue the tenancies of certain tenants. A New York Criminal Lawyer the petition filed by the woman also seeks to dismiss the charges pending against her in a Housing Authority hearing that terminated her tenancy.

Following a disturbance in the woman’s apartment allegedly caused by her onetime and allegedly current boyfriend, the Housing Authority gave a notice to the woman that it would commence a proceeding to terminate her public housing tenancy because she never obtained permission for her boyfriend to live in her apartment. The Housing Authority also said that the woman’s boyfriend had committed domestic violence in the apartment and the woman refused to exclude his boyfriend from the building. Prior to the adjourned date for the hearing on the charges, the woman commenced a proceeding to prevent the Housing Authority from proceeding and asserting various lawful grounds. The Court initially stayed the Housing Authority hearing for a fixed period to consider the woman’s assertions but after subsequently considering the submissions of the parties, the Court did not extend the stay after such period and the stay has expired.

The Housing Authority claims in their petition that multiple dwellings such as the project in which the Apartment is located are densely populated, unacceptable behavior of tenants can have a serious impact on the ability of other tenants to be secure in and enjoy their homes. To prevent disruptive tenants from adversely affecting the other tenants in its projects, the Housing Authority has developed a series of criteria relating to tenant behavior and conditions the continuation of a tenant’s tenancy on adherence to these rules. Serious violence and material criminal activity by a tenant or a member of a tenant’s household in a tenant’s apartment are generally proscribed and their occurrence will support a tenancy termination.

A Westchester County Criminal Lawyer said a different issue arises when the proscribed behavior is not that of the tenant but that of a family member, a guest or invitee of a tenant. When the tenant aids, abets or indulges such a person in the performance of such behavior, such non-tenant’s behavior will be ascribed to the tenant and will constitute grounds for termination of the tenancy. A Queens Criminal Lawyer said recognizing that it may be unfair to penalize a tenant for behavior over which the tenant has neither control nor notice, the Housing Authority does not remove a tenant who takes appropriate steps to exclude a misbehaving family member invitee or guest, as soon as the tenant has or should have had notice of the misbehavior.

Because tenants of the housing have deeply subsidized rents for apartments of a quality and value far above that available to them in the market, resulting in a high demand and long waiting list for the Housing Authority apartments, such tenants are loath to surrender their apartment and accordingly, actions by the Housing Authority to terminate a tenant’s lease have led to much litigation.

The woman does not challenge in concept that the Housing Authority may terminate a tenant for undesirability, but challenges instead the present specific criteria and definitions of non-desirability in the context of her case and whether the Housing Authority uses appropriate guidelines and criteria for deciding which tenancies the Housing Authority seeks to terminate. The woman also claims that the Housing Authority has made on a racially biased basis in the context of her case.

The record shows that the woman has been a victim of domestic violence inflicted by her boyfriend. Although she alleges that she is also a battered woman, such assertion has not yet been established in the record. A battered woman is a female victim of domestic violence who has been so adversely impacted by her battering that she is unable to extricate herself from the relationship or respond appropriately, the woman alleges she is such a victim, and thus being incapable of action, must be excused from certain consequences to which a non-battered woman might be subject. The record does not establish that the woman is a battered woman, it does not establish, even if she were, her ability or capacity or lack thereof, to take action to exclude her boyfriend from the apartment.

The woman also asserts that the Housing Authority’s decision to proceed against her was made in a racially biased manner since she is an African American and that the woman’s counsel has made legal inquiry practitioners in all of the branch offices in the five boroughs in the City of New York that handle Authority victim proceedings. The woman also asserts that none of the practitioners contacted reported cases of eviction proceedings brought against while female victims of domestic violence, for incidences of domestic violence, however the inquiry yielded multiple instances where the tenancies of minority women were terminated for non-desirability and breach of the Authority rules and regulations after having suffered domestic violence assaults, the Court will first address the second contention. Clearly, the Housing Authority cannot use race as a basis upon which to make decisions to evict. The court has the obligation to consider such a claim carefully, and to make searching inquiry into air appropriate allegation of discrimination.

By claiming that the Housing Authority’s termination proceedings against domestic violence tenant-victims are conducted in an arbitrary and capricious manner, the woman ostensibly invokes the law which requires that there should be a determination which has been applied in improper manner. However, there has been no determination, and therefore the Court lacks jurisdiction over the matter in accordance to the law as well. The woman may not use an Article proceeding to challenge a non-final determination but she must first exhaust her administrative remedies. When and if the Housing Authority issues a determination on the woman’s tenancy, if that determination is adverse to her, the woman may seek review of such determination by an Article proceeding. Until the Housing Authority has issued a determination, the proceeding is not ripe for review.

Although adamantly denied, the woman is also ostensibly seeking to prohibit the Housing Authority from proceeding against the woman as well as any other alleged tenant-victims of domestic violence. The woman avoids calling the action a writ of prohibition to evade the strict rule of the State law that prohibition does not issue when the grievance can be redressed by ordinary proceedings at law or in equity such as by appeal, motion, or other ordinary applications.

The woman has failed to show that no adequate remedy at law exists to redress any potential errors of law by appeal or judicial review. Thus, before the Court can address her grievance, a hearing must be held before a hearing officer, where the burden is on the Housing Authority to present witnesses. The witnesses may be cross-examined by the woman. After considering the evidence the hearing officer must make findings of facts and recommendations to the housing Authority. Once reviewed, any number of resolutions is possible and if adverse to the woman, they may be appealed in accordance to the law. The woman cannot avoid an Article proceeding by simply stating that the administrative procedure would affect her rights because she is a battered woman. The record to date, other than her assertion, does not show she has been so determined. In fact, she seems to argue that the assault against her was a unique experience. The factual predicate for an Article review must be found either in the record of the administrative proceeding or determination. Allowing such an assertion, so that review may be had under the law, on whether such exclusion was permissible under the standards to be applied in an administrative proceeding, would result in a back door nullification of the rule requiring the Court to rule on the record before it. The petitioner’s motion is denied.

Women and children are always the victims of violence inside the house. The first time that we allow other people to harm us, we expose ourselves to being harmed infinitely. To keep ourselves away from violence, the first time that we are violated should be the last time and to make this possible, you can consult a New York Domestic Violence Lawyer from Stephen Bilkis and Associates. If violence in your homes resulted to more serious case, make sure that you call a NY Criminal Attorney.

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