Housing Authority Procedure Unfair to People Facing Evic

[consigliere]

The article below, Procedure Unfair to People Facing Eviction for Drugs, by Daniel Wise, appears in the September 20, 2002 online edition of the New York Law Journal:
 
The procedure used by the New York City Housing Authority to take stipulations from people facing evictions because friends or family members have been involved with drugs is unconstitutional, an acting Supreme Court justice has ruled.
 
Finding a lack of key due process safeguards, Justice Louise Gruner Gans annulled the Housing Authority's decision to evict Tawana Robinson because of her failure to abide by a stipulation entered after her son had been arrested on a drug charge in 1996 when he was 16.
 
Robinson's son Donnel was living with her at the time of his arrest in August 1996 on an unspecified drug charge. The charges were subsequently dismissed and the record sealed.
 
About a year later, on Aug. 7, 1997, Robinson, who has lived at a housing project on East 102nd Street in Manhattan for 23 years, entered a stipulation settling an eviction case brought by the Housing Authority and agreed that she would be subject to eviction if Donnel should subsequently be found in her apartment.
 
When a Housing Authority employee spotted Donnel at her apartment about two months afterward, new eviction proceedings were started based on his presence in the apartment in violation of the stipulation. There was no allegation that Donnel had been involved with drugs during the Oct. 29, 1997, visit. Robinson contended that Donnel had come for an overnight stay to facilitate an early morning visit to nearby Mount Sinai Hospital.
 
The Housing Authority's eviction case against Robinson collapsed, Gans concluded in Robinson v. Finkel, 401128/99, because the stipulation procedures it employed were "utterly inconsistent" with the "explicit purpose of providing public housing tenants with due process of law before their tenancy may be terminated by state action."
 
The use of the stipulation process, Gans noted, deprived Robinson of the the right to a hearing before an impartial hearing officer, who would render a determination based upon a record. In addition, she noted, Robinson signed a stipulation containing "opaque legalese" without the aid of her own attorney. In fact, the only person she had to look to for advice at the time the stipulation was signed, Gans noted, was a Housing Authority attorney whose role was "partisan."
 
Under those circumstances, Gans concluded, Robinson could not have made a knowing and intelligent waiver of her due process rights as a matter of federal constitutional law.
 
Gans also noted that the use of the stipulation procedure bypassed due process safeguards contained in Housing Authority regulations as a result of stipulations entered after lengthy litigations in the 1970s [Escalera v. New York City Housing Authority, 425 F2d 853 (2nd Circuit, 1970) and Tyson-Randolph v. New York City Housing Authority (369 F Supp 513 (Southern District of New York, 1974)].
 
Appropriate Safeguards
  
Gans did not rule out the use of stipulations under any circumstances, but instead said that the Housing Authority has the option of providing "appropriate procedural safeguards" for their use.
 
Quoting from the Appellate Division, First Department's opinion in Brown v. Popolizio, 166 AD2d 44 (1991), Gans concluded, "'combating the drug crisis infecting the city's housing projects is an important objective. It can, and should be, accomplished, however, without violating or disregarding due process rights of tenants.'"
 
Robinson was represented by Edward Simon of MFY Legal Services, and the Housing Authority by Byron S. Menegakis, of its legal staff.
 
Henry Schoenfeld, a deputy general counsel at the Housing Authority, said that several challenges to its stipulation procedures had been mounted in the Appellate Division, First Department, and that court had never found them to be defective.