Opinion
No. 93 Civ. 4344 (LAP)
January 2000
MEMORANDUM and ORDER
Plaintiff Barbara Kraebel ("Kraebel"), appearing pro se, brought this action seeking declaratory relief under 42 U.S.C. § 1983 against defendant, the Commissioner of the New York State Division of Housing and Community Renewal ("DHCR Commissioner"). Plaintiff alleges that the DHCR Commissioner, acting under color of state law, deprived her of property without due process of law. Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant's motion is denied to the extent described below, and granted in all other respects.
Plaintiff is a lawyer admitted to practice in the State of New York. (Transcript of Deposition of Barbara Kraebel, dated Apr. 21, 1998, as corrected by Corrections to Deposition ("Dep. Tr."), attached as Exs. D and F to Affidavit of Richard Lombardo in Supp. of Mot. for Summ. Judgment, sworn to Sept. 2, 1998 ("Lombardo Aff."), at 15.) She is a college graduate and has a law degree from Harvard University and a Masters of Law degree from New York University. (Id.) While it is proper to treat an attorney who appears pro se as any other pro se plaintiff, see Humpherys v. Nager, 962 F. Supp. 347, 350 (E.D.N.Y. 1997), I note that plaintiff here seeks attorney's fees. (Am. Compl. ¶¶ 127-28.) Plaintiff will not be permitted to avail herself of the liberal construction afforded pro se plaintiffs and attorney's fees simultaneously. Thus, I construe plaintiff's complaint liberally, see id., and deny her request for fees.
In 1995, I dismissed plaintiff's claims for violations of the Takings Clause and her right to substantive due process. Kraebel v. Commissioner of the N.Y. State Div. of Housing and Community Renewal, No. 93 Civ. 4344, 1995 WL 469707 (S.D.N Y Aug. 8, 1995). I held that plaintiff successfully alleged a claim for violation of her procedural due process rights. Defendant now has moved for summary judgment on plaintiff's remaining procedural due process claim.
BACKGROUND
In April 1984, Kraebel purchased a sixteen-unit apartment house located at 205 West 147th Street, New York, New York (the "Property"), and has been the owner and manager of the Property since that time. (See Stipulation of Facts ("Stip. of Facts"), attached as Exhibit C to Lombardo Aff., ¶ 3.) Defendant is the Chief Administrative Officer of the state agency charged with the administration and oversight of the rent regulatory system in New York City, as prescribed by the New York City Administrative Code, New York City Rent and Eviction Regulations and New York City Rent Stabilization Code ("Rent Regulations"). (See id.) Rent Regulations establish the maximum rent which plaintiff can charge tenants at the Property, require Plaintiff to provide services and facilities to tenants and subject plaintiff to substantial administrative duties and procedures with respect to the Property. (See id. ¶ 5.) The DHCR rent administrator, "at any time, on his own initiative or on application of the tenant, may order a decrease of the maximum rent otherwise available" on the grounds stated in sections 2202.15-18 of the New York City Rent and Eviction Regulations. N.Y. Comp. Codes R. Regs. tit. 9, § 2202.14 (1999). These grounds include "a substantial deterioration of the housing accommodations because of the failure of the landlord to properly maintain the same" and a decrease in the "essential services" a landlord is required to furnish. Id. § 2202.16(a).
After a rent reduction order has been issued, an owner may file a rent restoration application alleging that the services previously found to have been reduced have been restored. (See Def.'s Statement Pursuant to Civil Rule 56.1, dated Sept. 2, 1998 ("Def.'s 56.1 Stmt.") ¶ 5). Any person aggrieved by an order of the rent administrator may file a petition for administrative review ("PAR") with the DHCR Commissioner. See N.Y. Comp. Codes R. Regs. tit. 9, § 2208.1.
In the present action, plaintiff alleges that the DHCR Commissioner violated her procedural due process rights in issuing certain rent reduction orders, denying certain rent restoration applications and denying certain PARs (collectively, the "Orders") filed by plaintiff pertaining to two apartments at the Property: Apartment 15 and Apartment 5. (See Am. Compl. 6 50.) The pertinent histories of the Orders are described in detail below.
Plaintiff argues that the Court should consider three Orders issued in July and August 1998 as further examples of defendant's denial of her due process rights. (See Pl.'s Mem. of Law in Opp. to Mot. Summ. Judgment, dated Oct. 28, 1998 ("Pl.'s Mem."), at 15.)
First, plaintiff has not pled any facts regarding these Orders, (see Am. Compl.), and has not sought to amend her complaint to include such facts. Furthermore, while plaintiff discusses three 1998 Orders, she has only included two such Orders in her submissions. (See Affirmation of Barbara Kraebel, dated Oct. 28, 1998 ("Kraebel Aff.") Ex. M (Aug. 14, 1998 Order and July 23, 1998 Order).)
Second, even if I were to consider such Orders, it appears that plaintiff has no claim with respect to their issuance. The July 23, 1998 Order reduces the Apartment 15 rent by $25.00. The August 14, 1998 Order revokes the July 23, 1998 Order and states that the August Order does not substantively affect the parties originally served with an Order issued November 10, 1987. Therefore, by its terms, the August 14, 1998 Order states that the July Order should not have been issued and does nothing more than revoke it. Thus, I do not find that the issuance of the 1998 Orders effected any change in plaintiff's circumstances; they merely returned plaintiff to the position she was in prior to their issuance.
I. APARTMENT 15
A. RENT REDUCTION APPLICATION (Docket No. BE510634-S)
In or about June 1987, the Apartment 15 tenant applied to the DHCR for a rent reduction on various grounds. (See Affidavit of Caroline M. Sullivan in Supp. of Mot. for Summ. Judgment, sworn to July 31, 1998 ("Sullivan Aff."), ¶ 19.) In addition to alleging that Apartment 15 had not been painted for eight years, the Apartment 15 tenant stated that three years prior to his application, the roof leaked damaging several furnishings. (See Apartment 15 Tenant Complaint, attached as Ex. 1 to Sullivan Aff.) Furthermore, the tenant complained that the ceiling fell in three rooms, was not fixed for one year and had never been painted. (See id.)
In July 1987, DHCR sent plaintiff the tenant's complaint and afforded plaintiff the opportunity to respond. (See Def.'s 56.1 Stmt. ¶ 13.) DHCR did not limit the length of plaintiff's response or limit the documentary evidence plaintiff could submit in support of her response. (See id. ¶ 14.) In addition to a written narrative containing plaintiff's allegations, plaintiff submitted documentary evidence, including bills, in support of her claims that Apartment 15 had been repaired and painted to the extent requested by the tenant. (See Apartment 15 Answer, attached as Ex. 3 to Sullivan Aff., ¶ 8, Ex. B.)
On September 29, 1987, without notifying plaintiff, (see Stip. of Facts ¶ 9), a DHCR representative inspected Apartment 15, (see Def.'s 56.1 Stmt. ¶ 16). A DHCR representative completed an inspection report pertaining to the September 1987 inspection. (See First Inspection Report, attached as Ex. 4 to Sullivan Aff.) Plaintiff was not aware of the September 1987 inspection until November 1987, when she read DHCR's order granting the application for rent reduction. (See Lombardo Aff. Ex. D at 34.) Plaintiff first received a copy of the First Inspection Report in response to a "freedom of information law" ("FOIL") request she made to the DHCR in 1993. (See Kraebel Aff. ¶ 78.) The First Inspection Report, under a column labeled "REQUEST," states, "Check for p/p/p throughout the apartment." (First Inspection Report.) Under a column labeled "REPORT," the First Inspection Report states, "The tenant stated that the apartment has not been painted by the landlord since 1979. Eight (8) years. The walls and ceilings thru-out [sic] the 6 rooms are in need of painting. One bedroom damaged by the leaking roof (ceiling) has been replastered and not painted." (Id.)
In response to her 1993 FOIL request, plaintiff first received a DHCR examiner's progress sheet, which contains an entry dated "10/23/87" stating "The enclosed inspection report dated 9/29/87 indicates decreased services. No reply from owner. Issue rent stabilized reduction order." (Progress Sheet, attached as Ex. L to Kraebel Aff.; Kraebel Aff. ¶ 83.) In November 1987, the DHCR Commissioner issued an order reducing the rent for Apartment 15 based on a finding of peeling paint and plaster throughout the apartment. (See Apartment 15 Rent Reduction Order, attached as Ex. 5 to Sullivan Aff.) Although the Apartment 15 Rent Reduction Order does not refer to or discuss the plaintiff's answer to the tenant's complaint, (see Stip. of Facts ¶ 9), it states that all the evidence in the record was considered, (see Apartment 15 Rent Reduction Order).
This statement is printed as part of the Apartment 15 Rent Reduction Order form. (See id.)
B. PAR (Docket No. BL410429-RO)
In December 1987, the DHCR received plaintiff's PAR of the Apartment 15 Rent Reduction Order (the "Apartment 15 PAR"). (See Sullivan Aff. ¶ 24.) In the Apartment 15 PAR, plaintiff alleged errors of fact in the Apartment 15 Rent Reduction Order, including that Apartment 15 had been mischaracterized as rent-stabilized, when in fact it was rent-controlled, no reference was made to an inspection of Apartment 15, and no evidence existed that the services allegedly requiring restoration had been provided at any prior time or that the rents cover the cost of providing such services. (See Apartment 15 PAR, attached as Ex. 6 to Sullivan Aff.) In plaintiff's view, under DHCR regulations, DHCR cannot order plaintiff to provide painting services if plaintiff has not provided such services in the past. Plaintiff has alleged that she had not provided such services prior to the Apartment 15 Tenant Complaint, and therefore, the Apartment 15 Rent Reduction Order should not have required her to restore such services.
In February 1988, the DHCR sent a copy of the Apartment 15 PAR to the Apartment 15 tenant and provided the Apartment 15 tenant with the opportunity to respond. (See Sullivan Aff. 6 25.) In June 1988, the DHCR received a letter from plaintiff providing supplemental information in support of the Apartment 15 PAR. (See First Supplement to Apartment 15 PAR, attached as Ex. 8 to Sullivan Aff.) This supplemental information, including the result of plaintiff's personal inspection of Apartment 15, was not included in the Apartment 15 Answer. (See Apartment 15 Answer.)
In July 1988, the Apartment 15 tenant sued plaintiff in New York City Housing Court, alleging, among other things, that Apartment 15 was in need of painting. (See Kraebel Aff. ¶ 55.) As a result, the New York City Department of Housing Preservation and Development (the "HPD") inspected Apartment 15, and plaintiff was ordered to repair plaster in the bathroom and paint the apartment. (See id. ¶ 56.)
In December 1988, plaintiff informed the DHCR that Apartment 15 had been replastered and repainted, (see Sullivan Aff. ¶ 27), and in early 1989, the DHCR received an affirmation of compliance from plaintiff, dated January 6, 1989, stating that plaintiff had restored the services as directed by the Apartment 15 Rent Reduction Order, (see Sullivan Aff. Ex. 10).
In April 1993, the DHCR granted in part and denied in part the Apartment 15 PAR. (See Apartment 15 PAR Order, attached as Ex. 11 to Sullivan Aff.) The Apartment 15 PAR Order states, "The Commissioner has reviewed all of the evidence in the record and has carefully considered that portion of the record relevant to the issues raised by the administrative appeal." (Id.)
The DHCR determined that the Apartment 15 Rent Reduction Order had mischaracterized Apartment 15 as rent-stabilized rather than rent-controlled and modified the rent reduction amount and commencement date accordingly. (See id.)
The DHCR found plaintiff's other arguments meritless. (See id.) It noted that the Tenant Complaint "alleged, among other things, that the apartment had been water damaged as a result of a roof leak and had not been painted in eight years." (Id.) In its recitation of the facts, the Apartment 15 PAR Order summarized the evidence submitted by plaintiff, the DHCR inspection results and the Apartment 15 Rent Reduction Order. (See id.) The Apartment 15 PAR Order responded to plaintiff's arguments regarding the painting and plastering as follows:
While painting may not be a required service provided to a rent-controlled apartment if it had never been provided, in this case, the owner asserted that the apartment was plastered and painted after water damage occurred and even submitted receipts substantiating this work. However, the painting and plastering was apparently not done properly because the inspection by DHCR just two months after the owner submitted its answer, revealed that the entire apartment needed to be plastered and painted. For this condition, a rent reduction is warranted pursuant to Section 2202.16 of the Rent and Eviction Regulations.
(Id. (emphasis in original).) Section 2202.16 of the New York City Rent and Eviction Regulations provides
The [DHCR] may order a decrease of the maximum rent otherwise allowable . . . where there has been a substantial deterioration of the housing accommodations because of the failure to properly maintain the same, or there has been a decrease in the dwelling space, essential services, furniture furnishings or equipment required under section 2201.2 of this Title . . . The maximum rent for the housing accommodation shall be decreased by that amount which the [DHCR] finds to be the reduction in rental value of the housing accommodation because of the substantial deterioration or decrease in dwelling space, essential services, furniture, furnishings or equipment. The [DHCR] may, however, take into consideration all factors bearing on the equities involved.
N Y Comp. Codes R. Regs. tit. 9, § 2202.16. Section 2201.2 of the New York City Rent and Eviction Regulations defines the services included in the maximum rent.
Every landlord shall furnish with housing accommodations the same dwelling space and the same essential services, furniture, furnishings and equipment as were furnished, or required to be furnished, on April 20, 1962 or any subsequent date determining the maximum rent.
Id. § 2201.2.
In May 1993, the DHCR received plaintiff's request for reconsideration of the Apartment 15 PAR Order. (See Sullivan Aff. ¶ 30.) Plaintiff requested reconsideration on several grounds including that the Apartment 15 PAR Order concluded that "painting was a required service in the apartment based upon a finding that the Owner had plastered and painted the apartment after water damage occurred." (Request for Reconsideration, attached as Exhibit 12 to Sullivan Aff.) Plaintiff asserted that "The Owner had only repaired and repainted plaster that had been damaged by a leaking roof, as the Owner was required to do, and had not plastered and painted the entire apartment."
In June 1993, the DHCR denied the Request for Reconsideration, stating
The [Apartment 15 PAR Order] did not, however, rule on whether painting is or is not a required service. Rather the PAR held that painting was required under the specific circumstances of this case. Section 2202.16 of the Regulations mandates that the rent of an apartment be reduced where there has been a substantial deterioration of the accommodation and the owner fails to maintain the same. In this case there was water damage that caused peeling paint and plaster, as proven by a DHCR inspection.
(Reconsideration Denial, attached as Ex. 13 to Sullivan Aff.)
The Reconsideration Denial noted that an application for judicial review of the DHCR's determination must be commenced within 60 days of the issuance of the DHCR determination under Article 78 of the New York Civil Practice Law and Rules. (See id.) Plaintiff did not commence an Article 78 proceeding for judicial review of the Apartment 15 Orders pertaining to rent reduction. (See Def.'s 56.1 Stmt. ¶ 27.)
C. RENT RESTORATION APPLICATION (Docket No. DA 510162-OR)
In January 1989, while the Apartment 15 PAR was pending, DHCR received plaintiff's application to restore the rent for Apartment 15. (See Def.'s 56.1 Stmt. ¶ 28.) Plaintiff alleged that she "had the entire apartment repainted, with related plaster repairs." (Apartment 15 Rent Restoration Application, attached as Ex. 14 to Sullivan Aff.)
In February 1989, DHCR sent a copy of the Apartment 15 Rent Restoration Application to the tenant and afforded him the opportunity to respond. (See Sullivan Aff. ¶ 34.) On May 9, 1989, DHCR received plaintiff's notice of change of address effective May 1, 1989. (See Def.'s 56.1 Stmt. ¶ 30.)
In June 1989, without advising plaintiff, DHCR inspected Apartment 15,(see Kraebel Aff. ¶ 85; Def.'s 56.1 Stmt. 631), and authored an inspection report, (see Second Inspection Report, attached as Ex. 16 to Sullivan Aff.) The phrase "P/P/P T/O the subject apt." appears in the column labeled "Request." (Second Inspection Report.) The adjacent column labeled "Report" reads "Bathroom walls has [sic] not been completed in plastering painting. Ceiling thinly applied paint. Paint did not covered [sic]. Kitchen walls and ceiling thinly applied paint. Paint did not covered [sic]. Poor workmanship." (Id.)
Plaintiff received a copy of the Second Inspection Report in response to her 1993 FOIL request. (See Def.'s 56.1 Stmt. ¶ 31.) Plaintiff was not aware of the Second Inspection Report prior to the Apartment 15 PAR Order. (See Kraebel Aff. 6 85.)
In July 1989, the DHCR denied the Apartment 15 Rent Restoration Application based on the unworkmanlike repairs. (See Def.'s 56.1 Stmt. ¶ 32; Apartment 15 Rent Restoration Denial, attached as Ex. 17 to Sullivan Aff.) Although the DHCR alleges that, on July 17, 1989, it mailed a copy of the Apartment 15 Rent Restoration Denial to plaintiff, (see Def.'s 56.1 Stmt. ¶ 32), plaintiff contends that she was first notified of the Apartment 15 Rent Restoration Denial when she received the Apartment 15 PAR Order in 1993. (See Kraebel Aff. ¶ 68.) The Apartment 15 PAR Order advised plaintiff that the Apartment 15 Rent Reduction Order remained in effect, and that plaintiff should file a new rent restoration application if all necessary repairs had been completed. (See Apartment 15 PAR Order.)
In 1993, the time for plaintiff to file a PAR with respect to the Apartment 15 Rent Restoration Denial had expired. N Y Comp. Codes R. Regs. tit. 9, § 2208.2(b) ("A PAR against an order of a district rent administrator must be filed with the administrator within 33 days after the date such order is issued").
Plaintiff's May 1993 Request for Reconsideration stated that she had not received a copy of the Apartment 15 Rent Restoration Denial mentioned in the Apartment 15 PAR Order. (See Request for Reconsideration.) DHCR responded that the issue of plaintiff's non-receipt of the denial was irrelevant to the Apartment 15 PAR Order, and that its mention was essentially dictum. (See Reconsideration Denial.) Plaintiff did not file a PAR with respect to the Apartment 15 Rent Restoration Denial. (See Def.'s 56.1 Stmt. ¶ 35.)
Plaintiff did not file any petitions for a proceeding pursuant to article 78 of the New York Civil Practice Law and Rules, N Y Civ. Prac. L. R. § 7803 (McKinney 1999) ("Article 78"), with respect to any of the Apartment 15 Orders. (See Def.'s Mem. Supp. Mot. Summ. Judgment, dated Sept. 2, 1998 ("Def.'s Mem."), at 9.)
In May 1993, plaintiff made a FOIL request and, in response, received the following documents for the first time: (1) a copy of the First Inspection Report; (2) a copy of the Progress Sheet; (3) a copy of the Apartment 15 Rent Restoration Denial and (4) a copy of the Second Inspection Report. (See Kraebel Aff. ¶¶ 77-78, 83-85.)
As of April 21, 1998, plaintiff had not implemented the Apartment 15 rent reduction ordered by the DHCR. (See Dep. Tr. at 57.)
II. APARTMENT 5
A. RENT REDUCTION APPLICATION (Docket No. ED520582-S)
In or about April 1990, the Apartment 5 tenant applied for a rent reduction on the following grounds: "(1) Landlord refuse to complet painting of Apt. [and] (2) Door to Apt. is Defected." (Sullivan Aff. ¶ 39; Apartment 5 Complaint, attached as Ex. 18 to Sullivan Aff.) In May 1990, DHCR sent plaintiff the tenant's complaint and afforded plaintiff the opportunity to respond. (See Def.'s 56.1 Stmt. ¶ 37.) DHCR did not limit the length of plaintiff's response or limit the documentary evidence plaintiff could submit in support of her response. (See id. 6 38.) Plaintiff responded to the Apartment 5 Tenant Complaint in a written narrative and included documents to substantiate plaintiff's allegations. (See Apartment 5 Answer, attached as Ex. 20 to Sullivan Aff.) In October 1991, plaintiff supplemented the Apartment 5 Answer with a copy of a letter plaintiff had written to the tenant in December 1990 (the "December 1990 Letter") and alleged that the tenant had never responded to such letter. (See October 1991 Letter, attached as Ex. 21 to Sullivan Aff.; Sullivan Aff. ¶ 42.) The December 1990 Letter purported to respond to the tenant's request for "painting as a new service" and enclosed for the tenant's signature an application for a rent increase for the painting. (See Sullivan Aff. Ex. 21.) The December 1990 letter also noted that plaintiff sent the tenant a similar application pursuant to the tenant's request for a new entrance door, to which the tenant never responded. (See id.)
In March 1992, DHCR sent a copy of the Apartment 5 Answer to the tenant and provided him with the opportunity to respond. (See Def.'s 56.1 Stmt. ¶ 41.) The tenant responded later that month. (See March 16 Response, attached as Ex. 21 to Sullivan Aff.)
In April 1992, DHCR requested that the tenant specify the defects in the apartment entrance door, state whether or not the previous owner painted Apartment 5 and indicate the previous owner's painting practice. (See Def.'s 56.1 Stmt. ¶ 43; Kraebel Aff. ¶ 122; Request for Additional Information, attached as Ex. F at 000186 to Lombardo Aff.) Shortly thereafter, the tenant responded claiming that the apartment had not been painted in more than ten years and that the previous owner would either paint the apartment or give the tenant a rent credit if the tenant chose to have the work done independently. (See April 7 Response, attached as Ex. 23 to Sullivan Aff.) The Response to Request for Additional Information did not contain information regarding the entrance door. (See id.)
DHCR then forwarded to the tenant a copy of the October 1991 Letter and provided the tenant with the opportunity to respond. (See Sullivan Aff. ¶ 45.) The tenant responded that as a rent-controlled tenant, he was entitled to have his apartment painted every three years and that he would refuse to consent to a rent increase. (See April 21 Response, Sullivan Aff. Ex. 24.) The tenant also suggested a compromise: he would be willing to provide the labor if the plaintiff would provide the paint and necessary repairs (scraping and plastering). (See id.)
In May 1992, DHCR provided plaintiff with copies of the March 16 Response, the April 7 Response and the April 16 Response and requested that plaintiff respond. (See Sullivan Aff. Ex. 25.) Plaintiff responded, stating that she had agreed with the tenant to provide the paint if he would provide the labor. (See Plaintiff's May 22 Response, Sullivan Aff. ¶ 26.) The tenant then requested an inspection. (See Sullivan Aff. Ex. 27.)
On July 15, 1992, the DHCR inspected Apartment 5 and found various defects in the apartment entrance door. (See Inspection Report, attached as Ex. 28 to Sullivan Aff.) The Inspection Report did not mention the status of the paint in Apartment 5. (See id.) Plaintiff was not aware of the inspection until August 1992, and first received a copy of the Inspection Report in response to a September 1992 FOIL request. (See Kraebel Aff. ¶ 51.)
On August 19, 1992, DHCR granted the tenant's application to reduce rent based upon a finding of decreased services. (See Apartment 5 Rent Reduction Order, attached as Ex. 29 to Sullivan Aff.) DHCR ordered that the rent be reduced (a) $15.00 per month for failure to maintain apartment entrance door and (b) 10% for failure to maintain the painting of the apartment. (See id.) Plaintiff received a copy of the Apartment 5 Rent Reduction Order in or about August 1992. (See Kraebel Dep. Tr., dated Apr. 21, 1998, at 79, attached as Ex. D to Lombardo Aff.) As of April 21, 1998, Plaintiff had not implemented the Apartment 5 rent reduction ordered by the DHCR. (See Dep. Tr. at 79.)
B. PAR (Docket No. GI510129-RO)
In September 1992, DHCR received plaintiff's PAR in which she alleged errors in the issuance of the Apartment 5 Rent Reduction Order. (See Def.'s 56.1 Stmt. ¶ 54.) After providing the tenant with the opportunity to respond and receiving additional information from plaintiff in support of her PAR and tenant's response to plaintiff's supplemental submission, on October 5, 1995, the DHCR Commissioner granted plaintiff's PAR in part, revoking the Apartment 15 Rent Reduction Order insofar as it reduced the rent due to a decrease in painting services. (See Apartment 5 PAR Order, attached as Ex. 33 to Sullivan Aff.) The tenant's response to plaintiff's supplement to her PAR stated, "As of Sept. 20, 1995, the Landlord has repaired the front door of my apartment. The Landlord has tightened the hinges and as a result [sic] the door no longer is dragging." (Sullivan Aff. Ex. 32.)
The Apartment 5 PAR Order affirmed the rent administrator's findings and determination as to the apartment entrance door and noted that a rent restoration application had been filed. (See id.) Plaintiff did not file an Article 78 proceeding seeking judicial review of the Apartment 5 PAR Order. (See Def.'s 56.1 Stmt. ¶ 60.)
C. RENT RESTORATION APPLICATION (Docket No. ID 520020-CR)
In April 1994, DHCR received plaintiff's application to restore the rent to Apartment 5. (See Apartment 5 Rent Restoration Application, attached as Ex. 34 to Sullivan Aff.) In support of her application, plaintiff stated, "The entrance door to the apartment was reinstalled with new screws for hinges. Bill for work costing $30 is enclosed, with check in payment." (Id.) The tenant did not respond to the Apartment 5 Rent Restoration Application, and, after reviewing all of the evidence in the record, the rent administrator granted plaintiff's application to restore the rent on the basis that both the painting services and the entrance door service had been restored. (See Apartment 5 Rent Restoration Order, attached as Ex. 35 to Sullivan Aff.)
D. SECOND RENT REDUCTION APPLICATION (Docket No. FI520666)
The Apartment 5 Tenant filed a second rent reduction application in September 1991, alleging failure to paint the apartment. (See Sullivan Aff. ¶ 64; Second Rent Reduction Application, attached as Ex. 36 Sullivan Aff.) After receiving additional submissions from the plaintiff and the tenant, the DHCR Rent Administrator terminated the tenant's complaint because the tenant failed to provide access to Apartment 5 for the purpose of two DHCR inspections. (See Sullivan Aff. ¶¶ 66-67, 71, Ex. 42.)
DISCUSSION
I. Summary Judgment Standard
"A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994); see Fed.R.Civ.P. 56(c); see generally Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome of the particular litigation if the substantive law at issue so renders them. Anderson, 477 U.S. at 248.
The burden of establishing that no genuine factual dispute exists rests on the party seeking summary judgment. Chambers, 43 F.3d at 36. "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial," however, "the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); accord Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994) ("[T]he moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case."). The moving party, in other words, does not bear the burden of disproving an essential element of the nonmoving party's claim.
If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Instead, the nonmovant must "`come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely . . . on the basis of conjecture or surmise.'" Trans Sport v. Starter Sportswear, 964 F.2d 186, 188 (2d Cir. 1992) (citation omitted).
In assessing materials such as affidavits, exhibits, interrogatory answers, and depositions to determine whether the moving party has satisfied its burden, the court must view the record "in the light most favorable to the party opposing the motion" by resolving "all ambiguities and draw[ing] all factual inferences in favor of the party against whom summary judgment is sought." Chambers, 43 F.3d at 36. "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Id. at 37 (emphasis added).
II. Plaintiff's Due Process Claims.
It does not offend principles of federalism and comity to determine whether minimal requirements of procedural due process under the Fourteenth Amendment are met. Cf. Schwartz v. Dolan, No. 85-CV-1025, 1997 WL 614272, at *2 (N.D.N.Y. Oct. 3, 1997) (finding minimal requirements of due process and declining further exercise of judicial intervention under federalism doctrine).
Plaintiff claims that the Apartment 15 and Apartment 5 rent reduction orders violate her right to due process under the Fourteenth Amendment and 42 U.S.C. § 1983. (See Am. Compl. ¶¶ 1, 50.) She asserts that DHCR's liability arises from its supervision and authorization of the administrative processes by which the orders were issued. (See id.)
"The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 902 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191 (1965)). To determine whether administrative procedures provide a constitutionally adequate "opportunity to be heard," courts must consider three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. at 335, 96 S. Ct. at 903.
In evaluating the Mathews factors, I must consider the analyses set forth in Parratt v. Taylor, 451 U.S. 527, 543, 101 S. Ct. 1908, 1917 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88, L.Ed.2d 662 (1986) and Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3203-04 (1984). Parratt and Hudson hold that a deprivation can be a proper subject of an action under 42 U.S.C. § 1983 if it results from the proper implementation of an established state procedure. See Parratt, 451 U.S. at 543, 101 S. Ct. at 1917; Hudson, 468 U.S. at 533, 104 S. Ct. at 3203-04; see also Kraebel v. New York City Dep't of Housing Preservation and Dev., 959 F.2d 395, 403 (2d Cir. 1992) (finding due process claim under § 1983 where established state procedures cause delays and burdens which deprive plaintiff of her property). Thus, an allegation that a state agent committed a random, unauthorized act will not invoke the protections of federal due process where the state provides an adequate post-deprivation remedy. See Parratt, 451 U.S. at 544, 101 S. Ct. at 1917; Hudson, 468 U.S. at 533, 104 S. Ct. at 3203; Birmingham v. Ogden, No. 97 Civ. 8057, 1999 WL 965432, at *15 (S.D.N.Y. Oct. 8, 1999) ("There is no constitutional violation when the state affords an adequate post-deprivation remedy for a random, arbitrary deprivation of property or liberty.").
A post-deprivation remedy is adequate to cure such unauthorized behavior because "no predeprivation safeguards would be of use in preventing the kind of deprivation alleged." Zinermon v. Burch, 494 U.S. 113, 139, 110 S. Ct. 975, 990 (1990). The Zinermon Court limited the application of the Parratt-Hudson test to situations where the deprivation is unpredictable, predeprivation process is impracticable and the deprivation does not result from an official's abuse of his or her delegated authority to establish proper procedures. See id. at 136-38, 110 S. Ct. at 989-90.
New York's procedures for post-deprivation judicial review of administrative agency decisions, known as "Article 78" proceedings, permit litigants to address whether an administrative determination was made in violation of lawful procedure, was arbitrary or capricious or constituted an abuse of discretion. See N.Y. Civ. Prac. L. R. § 7803 (McKinney 1999); Liotta v. Rent Guidelines Bd. for City of N.Y., 547 F. Supp. 800, 802 (S.D.N.Y. 1982) (dismissing due process complaint on summary judgment motion where plaintiffs did not pursue Article 78 proceeding and did not challenge existing procedures). In numerous contexts, courts have held that Article 78 proceedings satisfy the requirements of procedural due process. See id.; Birmingham, 1999 WL 965432, at *15 (dismissing due process claim where alleged random and unauthorized deprivation could be remedied by Article 78 proceeding); Katz v. Klehammer, 902 F.2d 204, 206 (2d Cir. 1990) (Article 78 proceeding adequate to address tenant's claims of building mismanagement in violation of New York City housing rules and regulations); Hellenic Am. Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877, 881 (2d Cir. 1996) (Article 78 proceeding satisfies due process where alleged deprivation occurs because of random and arbitrary act); Gudema v. Nassau County, 163 F.3d 717, 724 (2d Cir. 1998) (Article 78 proceeding provides meaningful post-deprivation remedy where state agent acts outside his authority); Campo v. New York City Employees' Retirement Sys., 843 F.2d 96, 102-03 (2d Cir. 1988) (Article 78 proceedings offer due process in meaningful time and meaningful manner). The general rule that § 1983 does not require plaintiffs with federal or constitutional claims to first exhaust state judicial or administrative remedies does not obviate the ability of Article 78 proceedings to provide adequate postdeprivation procedures under the Due Process Clause. See Hellenic Am. Neighborhood Action Comm., 101 F.3d at 881.
I understand that while the existence of Article 78 proceedings may satisfy due process under some circumstances, see Woodner v. Eimicke, No. 87 Civ. 8872, 1990 WL 100909, at *6 (S.D.N.Y. July 13, 1990), these proceedings may not be adequate to redress unconstitutional deprivations effectuated by established state procedure, see Kraebel v. New York City Dep't of Housing Preservation and Dev., 959 F.2d 395, 403 (2d Cir. 1992) (mere availability of redress in state court does not satisfy due process rights where plaintiff attacked established state procedures). In these situations, the mere availability of Article 78 proceedings will not preclude section 1983 claims.
In a February 6, 1998 letter to the Court, plaintiff set forth the bases for her due process claim as follows:
1. The applications and responses of the Tenants were not sufficiently clear or in sufficient detail to enable Plaintiff to defend against them.
2. The DHCR put the burden on the Plaintiff to disprove allegations in the Tenant applications which the Tenants did not prove by competent evidence in the first instance.
3. The Plaintiff was not notified of DHCR inspections nor permitted to attend them even though (i) the Tenants were present at the inspections, and (ii) the inspections were conducted for the purpose of determining relevant facts and/or making additional allegations against Plaintiff.
4. The Plaintiff was not provided with copies of the DHCR inspection reports and had no meaningful opportunity to rebut the allegations contained therein.
5. DHCR Orders were issued without full and careful consideration of all of the documents submitted by the parties.
6. DHCR Orders were based on theories and factual presumptions which were not contained in the record available to Plaintiff and which Plaintiff was not provided a meaningful opportunity to rebut.
7. There was no hearing on any Tenant or Plaintiff application even thought the facts were in dispute.
8. DHCR Orders reduced the rent by percentages which were not sufficiently described to enable Plaintiff to compute any required rent reduction.
9. DHCR Orders reduced the rent by arbitrary amounts or arbitrary percentages which did not take into account the amount of rent allocable to the service allegedly reduced and were not reasonably related to any actual harm to the Tenant.
10. DHCR Orders violated the DHCR's customary procedures and policies.
11. The proceedings violated the New York State Administrative Procedure Act.
12. The proceedings violated the DHCR's regulations.
13. The DHCR did not take into account the equities in the Plaintiff's favor in rendering its decisions.
14. The DHCR did not issue Orders on a timely basis, and delays in ruling on applications prejudiced Plaintiff's efforts to rebut charges which first arose in the DHCR Orders.
15. The DHCR did not provide the Plaintiff with a copy of one Order until four years after it was issued and then only in response to Plaintiff's FOIL request.
Dep. Tr. Ex. B.
Thus, to determine whether plaintiff's submissions support a § 1983 claim, I must evaluate the Mathews factors and determine whether plaintiff's claims arise from established state procedures or random, unauthorized acts of state agents. I note that "[s]ection 1983 is not a means for litigating in a federal forum whether a state or local administrative decision was arbitrary and capricious." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 888 (2d Cir. 1987); accord Cornett v. Sheldon, 894 F. Supp. 715, 722 (S.D.N.Y. 1995).
I do not agree with any perceived argument by defendant that DHCR's failure to enforce any of the Orders makes plaintiff's claims moot. It is not clear from the submissions before me that those Orders that were not reversed cannot be enforced at a future date to compel plaintiff to incur rent reduction expenses which accrued during the time period stated in the Orders.
A. Private Interest
Defendant asserts that plaintiff's property interest in this case is "significantly less compelling" than that of the plaintiff in Mathews because, here, the rent reductions at issue are small and plaintiff receives additional rental income from other sources each month. (See Def.'s Mem. at 8.) The property interest at issue in Mathews was the termination of disability benefits, the primary income source of the complainant. See Mathews, 424 U.S. at 323-24, 96 S. Ct. at 896-98. While plaintiff has testified that she has rental income from other sources, (see Dep. Tr. at 10), defendant has not pointed to any evidence showing the amount of plaintiff's monthly income from any sources or the percentage of such income derived from the Apartment 15 and Apartment 5 rents. Indeed, certain evidence, not contradicted or otherwise explained by defendant, suggests that prior to the Orders, the Apartment 15 and Apartment 5 rents were far below market rents, worsening the effect of any further rent reductions. (Request for Admissions, attached as Ex. A to Kraebel Aff., at Ex. A.) Therefore, while I agree that plaintiff's property interest may be less compelling than that of the Mathews plaintiff, I cannot agree with defendant that the degree to which this deprivation affects plaintiff's livelihood is insignificant.
I note that neither the Apartment 15 Rent Reduction Order nor the Apartment 5 Rent Reduction Order has been enforced,(see Def.'s Mem. at 8 n. 1), and that the filing of a PAR against an order stays the enforcement of such order until the final determination of the PAR by the rent administrator, see N Y Comp. Codes R. Regs. tit. 9, § 2208.11.
B. Risk of Erroneous Deprivation and Probable Value of Additional Safeguards, and Governmental Interest, Where Applicable
As outlined above, plaintiff has stated at least fourteen grounds for her due process claims.
1. Lack of Clarity in Tenants' Applications.
Neither plaintiff nor defendant has cited to a DHCR requirement pertaining to the degree of specificity with which a tenant must fashion his or her allegations. I do not find that any of the tenants' applications insufficiently identified the nature of the tenants' claims so as to create a due process violation.
In response to the Apartment 15 Tenant Complaint, plaintiff responded with a fifteen paragraph answer and attached several exhibits to substantiate her version of the events. (Apartment 15 Answer.) Furthermore, she did not raise her alleged inability to defend herself in any of her submissions to the DHCR relating to Apartment 15. Plaintiff responded in similar detail to the Apartment 5 Tenant Complaint and, again, did not raise any alleged inability to defend her position in light of the clarity of the tenant's allegations.
Moreover, with respect to Apartment 15, plaintiff testified in her deposition, "while I attempted to respond to each and every complaint, I didn't know which ones were going to be taken seriously by the DHCR. Had I realized that they were going to ignore every one of his complaints, except the painting complaint, obviously I would have focused on this to the exclusion of everything else, but I didn't know that." (Dep. Tr. at 127.) Thus, plaintiff admits that it was her failure to elaborate in her response to the "painting complaint" that may have contributed to the Apartment 15 Rent Reduction Order and that she was able to respond to each and every complaint in the Apartment 15 Tenant Complaint.
In her Apartment 5 Answer, plaintiff construed the tenant's complaint to be that the door was defective and noted that the tenant had not specified any defect. Plaintiff asserted that the door was not defective but that it was "very old." (Apartment 5 Answer.) Plaintiff did not inspect the door until after she had received a copy of the DHCR inspection report, which noted several problems with the door. Plaintiff admits that the door was "dragging," (Dep. Tr. at 128), and once this problem was fixed, the tenant was satisfied with the condition of the door. (See Sullivan Aff. Ex. 32.)
Due process does not require that each and every defect in the door be specified in order to permit plaintiff to adequately respond to the allegations in the complaint. See Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950) ("An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."). The notice here reasonably notified plaintiff of the problem in Apartment 5. Particularly, plaintiff was aware at the time she responded to the Apartment 5 Tenant Complaint that the tenant had allegedly requested a new door, and herself admitted that the door was "very old." Thus, the tenant complaints provided adequate notice.
2. Improper Burden-Shifting by the DHCR.
Plaintiff asserts that DHCR placed the burden on the plaintiff to disprove allegations in the tenants' applications, rather than placing the burden on the tenants to prove their allegations. Plaintiff contends that, upon a tenant complaint that an apartment needs painting, the DHCR shifts the burden to the owner to prove that painting is not a "required service" under existing regulations.
Even if such a burden exists here, it is not the responsibility of the DHCR to inform plaintiff of this burden when providing notice of a tenant complaint. See Keeler v. Joy, 489 F. Supp. 568, 572 (E.D.N.Y. 1980) ("It is not the purpose of this or any other Notice of a pending proceeding to advise the parties . . . with respect to the burden of proof on different issues."), aff'd, 641 F.2d 1044 (2d Cir. 1981).
There is no proof in the record to show that the DHCR shifted the burden to plaintiff to prove that painting was not required. For Apartment 15, the Reconsideration Denial disavowed that painting was a required service. It stated, in pertinent part,
The PAR held that painting was required under the specific circumstances of this case. Section 2202.16 of the Regulations mandates that the rent of an apartment be reduced where there has been a substantial deterioration of the accommodation and the owner fails to maintain the same. In this case [sic] there was water damage that caused peeling paint and plaster, as proven by a DHCR inspection.
(Reconsideration Denial.)
Plaintiff does not address this explanation in her submissions. Rather she asserts that DHCR shifted the burden to her to prove the past painting practice in Apartment 15 and that she failed unwittingly to meet that burden. Plaintiff has not provided evidence to support her burden-shifting claim, and, therefore, I can find no due process violation here.
With respect to Apartment 5, the rent reduction for failure to paint was revoked by the Apartment 5 PAR Order. Therefore, plaintiff was not deprived of a property interest by virtue of this overturned rent reduction, and the burden-shifting issue is moot.
3. Lack of Notification of DHCR Inspections.
Plaintiff contends that DHCR's failure to notify her of inspections, plaintiff's resulting lack of attendance at such inspections and the tenants' presence at such inspections violate her due process rights. New York courts have held repeatedly that DHCR's policy not to inform property owners of inspections does not violate owners' due process rights. See Stavisky v. New York State Div. of Housing and Community Renewal, 204 A.D.2d 462, 463 (2d Dep't 1994); 258 Riverside Drive Co. v. New York State Div. of Housing and Community Renewal, 172 A.D.2d 469, 469 (1st Dep't 1991); Kingswood Management. Corp. v. New York State Div. of Housing and Community Renewal, 168 A.D.2d 450, 451 (2d Dep't 1990); Rubin v. Eimicke, 150 A.D.2d 697, 698 (2d Dep't 1989); Copenhagen Leasing Co. v. Jones, N.Y.L.J., Nov. 10, 1993, at 25 (Sup.Ct. Queens County Nov. 10, 1993). A tenant's presence at such an inspection similarly does not violate the owner's due process rights. See Aguayo v. New York State Div. of Housing and Community Renewal, 150 A.D.2d 565, 565 (2d Dep't 1989); Cohen v. State of N.Y. Div. of Housing and Community Renewal, 131 A.D.2d 808, 809 (2d Dep't 1987).
Thus, plaintiff's asserted due process violation based on her lack of awareness of DHCR inspections cannot succeed.
4. Plaintiff's Non-Receipt of Inspection Reports.
Plaintiff argues that the DHCR's failure to provide her with copies of DHCR inspection reports violated her due process in that she had no meaningful opportunity to rebut the allegations contained therein. Again, New York courts have held that the DHCR's general policy to withhold inspection reports from property owners does not infringe upon due process. See Bel Air Leasing Ltd. Partnership v. Division of Housing and Community Renewal, 686 N.Y.S.2d 483, 484 (2d Dep't 1999); Notre Dame Leasing v. Division of Housing and Community Renewal, 251 A.D.2d 583, 583-83, 673 N.Y.S.2d 935, 935 (2d Dep't 1998); HH Equities v. New York State Div. of Housing and Community Renewal, 235 A.D.2d 360, 360, 653 N.Y.S.2d 547, 548 (1st Dep't 1997); Empress Manor Apartments v. New York State Div. of Housing and Community Renewal, 147 A.D.2d 642, 642-43 (2d Dep't 1989); Copenhagen, N YL.J., Nov. 10, 1993, at 25.
Thus, plaintiff's due process claim based on DHCR's failure to provide her with inspection reports cannot survive.
5. DHCR Failed to Consider All Submissions by the Parties.
Plaintiff contends that the DHCR orders were issued without full and careful consideration of all the submissions by the parties. Plaintiff finds support for her claim in her disagreement with the contents of the First Inspection Report, statement in the Progress Sheet apparently suggesting that plaintiff had not replied to a tenant's allegation and the lack of reference in certain Orders to the plaintiff's submissions. Plaintiff admits she has no personal knowledge of what the DHCR representatives did or did not consider when issuing the Orders. (See Dep. Tr. at 132.)
Under the Parratt-Hudson test, I find that plaintiff has failed to state a claim under § 1983. At all relevant times, DHCR's policy was "to allow owners to submit any and all information and documentation" in support of their position[s], and to consider all such information and documentation in rendering a decision. (Sullivan Aff. ¶¶ 9, 12.) The existence of this policy is further supported by the DHCR's pre-printed rent reduction and rent restoration forms, which each contain a statement that the decision contained therein was rendered after consideration of all the evidence in the record. (See Apartment 15 Rent Reduction Order ("After consideration of all the evidence in the record"); Apartment 5 Rent Reduction Order ("BASED UPON A COMPLETE REVIEW OF THE RECORD, THE DHCR FINDS:"; Apartment 5 Rent Restoration Order (same).) A statement to the same effect is contained in the Orders relating to the PARs. (See Apartment 15 PAR Order ("The Commissioner has reviewed all of the evidence in the record and has carefully considered that portion of the record relevant to the issue raised by the administrative appeal); Apartment 5 PAR Order (discussing evidence in record and setting forth decision "[a]fter careful consideration").)
Thus, if the decision was rendered without considering all the evidence, under the Parratt-Hudson analysis, such an action would be in violation of established DHCR policy and procedure. The plaintiff's remedy lies in an Article 78 proceeding, not a § 1983 action. Plaintiff's failure to seek such a remedy within the statutory limitations period, while unfortunate, does not affect this result. See Campo v. New York City Employees' Retirement Sys., 843 F.2d 96, 102 n. 6 (failure to utilize Article 78 proceeding in timely fashion could not resurrect due process violation).
I note that plaintiff alleges that she did not receive a particular DHCR order until after the time to file an Article 78 proceeding expired. Such an allegation does not affect the result set forth above. Plaintiff could have raised the lack of timely notification in an Article 78 proceeding. See Chelrae Estates, Inc. v. State Div. of Housing and Community Renewal, 225 A.D.2d 387, 387, 638 N.Y.S.2d 950, 951 (1st Dep't 1996) (evaluating prejudice to petitioner of lack of timely notification of PAR order).
Even if the Parratt-Hudson analysis were not applicable, no due process violation would exist. "An `opportunity to be heard' certainly does not mean that the investigator or fact-finder must believe or even include in his findings the submissions of all parties." Hogan Hartson v. Butowsky, 459 F. Supp. 796, 800 (S.D.N.Y. 1978).
6. DHCR Orders Were Based on Theories and Factual Presumptions Not Contained in Record Available to Plaintiff.
Plaintiff claims that she did not have a meaningful opportunity to rebut certain "theories and factual presumptions" that formed the basis for the Orders. To the extent plaintiff complains of non-receipt of DHCR inspection reports, I rely on the above discussion of that issue.
Otherwise, plaintiff has not shown that she was not provided with a meaningful opportunity to rebut the allegations of the tenants. Plaintiff was provided with copies of the tenants' submissions and an opportunity to present her objections. This is all that due process requires. Rubin, 150 A.D.2d at 698 ("all that due process requires is that reasonable notice be afforded to the parties to a proceeding and that they have an opportunity to present their objection"); Stavisky, 204 A.D.2d at 463 ("all that due process required was that the petitioner be afforded reasonable notice of the administrative proceeding and an opportunity to present her objections"); Copenhagen Leasing Co., N YL.J., Nov. 10, 1993, at 25 (receipt of complaint and opportunity to answer satisfy due process).
Plaintiff was not prohibited from submitting any witness statements or documentary evidence. (See Dep. Tr. at 73.) In fact, in response to the tenants' complaints, plaintiff submitted bills and correspondence to support her position. Furthermore, while certain determinations were pending, plaintiff chose to supplement her responses with additional evidence and information. The DHCR did not reject any of the supplementary material and reviewed those documents in the course of its investigation and decisionmaking process. The fact that DHCR does not, as a matter of policy, "suggest" that plaintiff submit evidence other than a written narrative is not a due process violation. See Keeler, 489 F. Supp. at 572 (no due process violation where notice did not advise parties of rights, defenses or burden of proof).
Furthermore, to the extent plaintiff's allegation can be construed as a claim that the DHCR acted arbitrarily and capriciously, such a claim does not belong in the federal forum. See Alfaro, 814 F.2d at 888.
7. DHCR'S Failure to Hold Hearing.
Plaintiff argues that, due to the existence of disputed facts, her due process rights were violated by DHCR's failure to hold hearings on any of the applications. Generally, DHCR does not hold evidentiary hearings. (See Sullivan Aff. ¶ 12.) Plaintiff does not appear to challenge DHCR's general policy regarding hearings, but the specific failure of DHCR to provide a hearing in this instance. Under the Parratt-Hudson test, plaintiff has not stated a section 1983 claim. Even if plaintiff's complaint can be read to allege a challenge to DHCR's general policy regarding evidentiary hearings, New York courts have held that under similar circumstances, the failure to hold an evidentiary hearing does not violate due process. See Goldman v. New York State Div. of Housing and Community Renewal, 228 A.D.2d 192, 192 (1st Dep't 1996) ("Petitioner's due process rights were not violated by failure to hold an evidentiary hearing as it was afforded a reasonable opportunity to be heard"); Bauer v. New York State Div. of Housing and Community Renewal, 225 A.D.2d 410, 410 (1st Dep't 1996) (failure to hold fact-finding hearing did not violate petitioners' rights); Aguayo, 150 A.D.2d at 566 (where petitioner claimed alleged conditions did not exist, inspection report was vague and possibility that inspection had not been conducted at all, no hearing was necessary to satisfy due process requirements).
8. Insufficient Description of DHCR Rent Reduction.
Plaintiff claims she was unable to compute the appropriate rent reductions because the DHCR Orders reduced the rent by percentages that were not sufficiently described. I note that the percentage rent reduction for Apartment 5 was reversed by the Apartment 5 PAR Order, and, therefore, I need not consider it.
Relying on the Parratt-Hudson rule, I do not find that plaintiff has stated a basis for a section 1983 claim. Section 2202.16 of the New York City Rent and Eviction Regulations provides that the DHCR administrator "may order a decrease of the maximum rent otherwise allowable." N.Y. Comp. Codes R. Regs. tit. 9, § 2202.16. Plaintiff, here, is not challenging the regulation itself, but rather a specific order issued in this case. To the extent that the Apartment 15 Rent Reduction Order does not comply with the language of section 2202.16, plaintiff may seek a remedy in an Article 78 proceeding.
9. DHCR Issued Orders with Arbitrary Rent Reduction Amounts.
Plaintiff also claims that the Orders reduced the rent by arbitrary amounts or arbitrary percentages. In plaintiff's view, the reductions did not account for the amount of rent allocable to the decreased service and were not reasonably related to any actual harm to the tenants.
This claim belongs in state court, not here. As stated above, the arbitrariness of an administrative decision is not a proper basis for a section 1983 action, especially here where New York courts provide a means to remedy an improper finding. See Alfaro, 814 F.2d at 888. Furthermore, section 2202.16 of the New York City Rent and Eviction Regulations defines the amount of the rent reduction as "that amount which the administrator finds to be the reduction in the rental value of the housing accommodation because of the substantial deterioration or decrease in dwelling space, essential services, furniture, furnishings or equipment." N Y Comp. Codes R. Regs. tit. 9, § 2202.16. Thus, a state court can address whether the rent reductions for Apartment 15 and Apartment 5 were in compliance with the New York regulation.
10. DHCR Violated Customary Procedures and Policies, Governing Regulations and the New York State Administrative Procedure Act.
Plaintiff's various allegations as to DHCR's violation of proper or customary procedure, local regulations and state statutes exemplify claims properly brought in an Article 78 proceeding, and not in a section 1983 action. These violations are by their terms unauthorized acts that are the proper subject of an Article 78 proceeding.
11. DHCR Did Not Account for the Equities in Plaintiff's Favor in its Orders.
Defendant admits that, in issuing the Orders, DHCR employed its standard procedure when it did not "take into account the equities in plaintiff's favor." (Request for Admissions, Response No. 54). Section 2202.16 of the New York City Rent and Eviction Regulations provides that in considering a rent decrease, the rent administrator may "take into consideration all factors bearing on the equities involved." N.Y. Comp. Codes R. Regs. tit.9, § 2202.16.
Plaintiff argues in her brief that the established rents for the apartments at issue did not include adequate allowances for repairs, maintenance or capital improvements. Plaintiff suggests changes in the administration of DHCR regulations to alter the alleged inequities in DHCR's regulatory scheme.
First, in this case, plaintiff has not challenged the procedure by which the apartment rents were initially derived. At issue on this motion is the alleged due process violation by the DHCR's issuance of the Orders. (See Am. Compl. ¶ 50.)
Second, plaintiff's suggestions regarding improving the DHCR regulatory scheme do not belong in this forum, but rather with the legislature. Plaintiff's purchase of low-income housing subjects her to the jurisdiction and regulations of the DHCR. Should she wish to alter the method by which rents are calculated, the appropriate remedy is to seek such alteration through the legislature, not the courts.
Furthermore, plaintiff has not specified the allegedly ignored equities. To the extent that plaintiff argues that section 2202.16 violates due process in that it does not mandate that the DHCR consider the equities bearing on a favorable decision for the plaintiff, I do not agree.
The degree of required pre-deprivation process necessarily varies with the nature of the potential deprivation. See Mathews, 424 U.S. at 341, 96 S. Ct. at 906. Here, the amount of the deprivation is based on the amount of the reduction in rental value caused by the landlord's neglect. § 2202.16. The deprivation is not a wholesale deprivation of income.
DHCR's failure to consider the hardship visited upon the plaintiff by the rent reduction does not bear on the DHCR's ability to provide a meaningful opportunity to be heard. To hold otherwise would require every administrative agency to evaluate the equities involved in every proceeding prior to rendering a determination — a burdensome proposition.
Due process does not necessarily require an evaluation of the equities, and a determination of the factors to be considered in reviewing DHCR applications is better left to the legislature.
Section 2202.16 leaves a consideration of the equities in the discretion of the decisionmaker. I decline to extend the due process clause to require a pre-deprivation evaluation of the equities to effectuate a meaningful hearing on the issues. See Mathews, 424 U.S. at 332, 96 S. Ct. at 902.
12. DHCR's Failure to Issue Orders on Timely Basis.
Plaintiff contends that the DHCR's failure to issue the Orders on a timely basis violated her due process rights. While DHCR delays depriving plaintiff of her property may infringe due process rights, see Kraebel, 959 F.2d at 404, I do not find that the DHCR's delays deprived plaintiff here, with the exception of one instance.
In Kraebel v. New York City Dep't of Housing Preservation and Dev., 959 F.2d 395 (2d Cir. 1992), the same plaintiff in the present action challenged the delays in the City's payments due her under a program whereby landlords with elderly tenants who were exempt from rent increases were to be reimbursed for their loss in rental income. The Court of Appeals determined that plaintiff was a "deprived property owner seeking reimbursement for being forced to shoulder the burden of long-deferred contractual payments under the SCRIE program, payments guaranteed to her by the government as a substitute for her right to receive payments directly from her elderly tenants." Id. at 406. The Court reversed the district court's dismissal of plaintiff's claims under Mathews, holding that a "delay in processing can become so unreasonable as to deny due process." Id. at 405. Relying on Mathews, the Court reasoned, "The possible length of wrongful deprivation . . . is an important factor in assessing the impact of official action on the private interests." Id. (internal quotations omitted).
Unlike Kraebel, the rent reduction orders in this case do not involve a lengthy wrongful deprivation. Whereas in Kraebel plaintiff was deprived of income during an extended waiting period, plaintiff here only waited for the decision on her administrative appeals. Section 2208.11 of the New York City Rent and Eviction Regulations stays a rent reduction order until a final determination of the administrative appeal. N.Y. Comp. Codes R. Regs. tit. 9, § 2208.11. However, section 2208.11 provides that "nothing herein contained shall limit the administrator from granting or vacating a stay under appropriate circumstances." Id. Here, neither the Apartment 15 Rent Reduction Order nor the Apartment 5 Rent Reduction Order was enforced. (See Def.'s Mem. at 8 n. 1.) Thus, it appears that a stay was in effect, whether de facto or by operation of the DHCR regulation; any delay suffered by plaintiff on a PAR decision did not deprive her of rental income.
The decision on plaintiff's Apartment 5 Rent Restoration Application mandates a different result. The Apartment 5 Rent Restoration Order was issued almost eighteen months after the rent restoration application was filed. (Sullivan Aff. ¶¶ 62-64.) The Court of Appeals has stated that "no bright-line rule exists for determining when a delay is so burdensome as to become unconstitutional." Kraebel, 959 F.2d at 405. The question of fact is whether the delay was egregious and without any rational justification. Id.
The Kraebel court could not conclude as a matter of law that a delay of over eighteen months was violative of plaintiff's due process rights, and I cannot do so here. Under these circumstances, I find that the DHCR has not provided a rational justification for the delay in the issuance of the Apartment 5 Rent Restoration Order.
The Order states that plaintiff's rent restoration application was served on the tenant on April 22, 1994. (Apartment 5 Rent Restoration Order.) The "findings" in the order conclude, "The tenant has failed to respond to a notice of the owner's application for rent restoration dated April 22, 1994. Accordingly, it is deemed that the services have been restored." Section 2207.4 of the New York City Rent and Eviction Regulations provides, "A person who has been served with a copy of an application or a notice of a proceeding shall have seven days from the date of mailing within which to answer." 9 N.Y. Comp. R. Regs. § 2207.4. Thus, the Apartment 5 tenant was obligated to respond by April 29, 1994.
The DHCR has not provided any justification for such a lengthy delay in the processing of this application, particularly where the tenant never responded. Furthermore, I do not find that the government would suffer any undue burden by issuing rent restoration orders in a timely fashion under similar circumstances. Therefore, DHCR's motion for summary judgment on this due process claim is denied.
Plaintiff also claims that she was denied due process because the DHCR did not provide her with the Apartment 15 Rent Restoration Denial until she made a FOIL request in 1993. (See Kraebel Aff. ¶ 84.) DHCR asserts that it mailed the Apartment 15 Rent Restoration Denial on the date it was issued, July 17, 1989. (See Sullivan Aff. ¶ 37.)
I do not find this disputed issue of fact to be material to a determination on the due process question. If DHCR did not mail plaintiff the Apartment 15 Rent Restoration Denial, DHCR violated its established procedure, and under the Parratt-Hudson rule, plaintiff should have pursued an Article 78 proceeding. See N Y Comp. Codes R. Regs. tit. 9, § 2207.6 ("A copy of any order issued shall be forwarded to all parties to the proceeding.").
CONCLUSION
For the reasons stated above, defendant's motion for summary judgment is granted in part and denied in part. The parties are directed to appear for a conference in Courtroom 12A at 500 Pearl Street on February 10, 2000 at 9:00 a.m.
SO ORDERED.