St. Mary’s Park development in the Bronx (WIki)
Sharply criticizing the New York City Housing Authority for “blindly” applying its rules, a state judge said the agency should not have ordered the eviction of a 75-year-old mentally disabled woman on the sole grounds that her husband failed to get written permission for her to live with him before he died of brain cancer.
Manhattan Supreme Court Justice Alice Schlesinger (See Profile) also wrote in her May 19 opinion in Russo v. NYCHA, 402268/12, that Clara Russo was denied due process by a NYCHA hearing officer who “simply glided through” a hearing that both Russo and her NYCHA-appointed guardian clearly did not understand.
“If one were to identify cases illustrative of [NYCHA] policies and procedures that cry out for change, this case would be at the top of the list,” the judge wrote. “Front and center is the highly unusual requirement that a husband must obtain formal written permission from NYCHA before his wife can move in with him—a requirement that the average married couple could and would never anticipate.”
“Additionally, and extremely problematic for a good number of NYCHA tenants, is the manner in which NYCHA applies its succession policies and the manner in which its hearing officers conduct hearings for persons with no legal representation, limited education, limited English language abilities, and mental challenges,” Schlesinger continued.
Russo was raised in the Dominican Republic, has a 10th grade education and schizophrenia, for which she takes medication, according to the decision. She suffers from confusion and delusions, including the belief that her dog can talk.
Her husband, Efrain Plumey, moved into NYCHA’s St. Mary’s Park development in the Bronx in 1993. Though Russo had been married to Plumey since 1975, she did not move in with him at that time. The couple’s daughter, Anna Plumey, lived with her father from 1993 until 2007.
In 2008, Russo was hospitalized because of her psychiatric problems. After she was discharged in 2009, Plumey told her to move in with him so he could take care of her. Soon after she moved in, however, Plumey became sick from brain cancer. He died in May 2010.
Russo told NYCHA about her husband’s death and asked to stay in the apartment. In July 2010, however, NYCHA denied her request, citing a rule in its handbook requiring tenants to get express written permission for a spouse to move into an apartment.
Russo wrote a letter asking NYCHA to reconsider, explaining that both she and her husband had been sick and that his failure to get written permission was an “oversight.”
NYCHA scheduled a hearing on Russo’s case, which was adjourned several times. At some point, a NYCHA attorney interviewed Russo and determined that she was mentally disabled. NYCHA appointed a guardian ad litem who is not a lawyer and the case file contains no information about his qualifications, according to Schlesinger’s opinion.
The guardian and Russo finally appeared for a hearing before a NYCHA hearing officer, Arlene Ambert, in June 2012.
The guardian did not understand legal proceedings, Schlesinger said, citing numerous parts of the hearing transcript. For example, he mistakenly believed that NYCHA would present its case first; he did not ask Russo any questions; he did not seek testimony from Russo’s daughter; did not know basic facts, like Plumey’s date of death; and put forth a “highly speculative” theory that Plumey’s brain cancer was responsible for his failure to get written permission.
When Russo tried to explain her situation during cross-examination, Ambert interrupted her by saying that her testimony was “more like a closing statement” and asking if she had any other evidence.
Russo responded only, “I have mixed up thoughts now.”
Throughout the hearing, Schlesinger said, Ambert remained “focused on procedural rules” that neither Russo nor the guardian understood.
The entire hearing, she said, took only 45 minutes, “despite the overwhelming impact of the determination on Ms. Russo’s life and the significant amount of evidence that could have been offered in Ms. Russo’s favor had she been represented by counsel.”
The agency affirmed its earlier denial of Russo’s request. Russo then filed an Article 78 petition, initially without counsel. Former Supreme Court Justice Emily Jane Goodman stepped in to represent Russo pro bono. Goodman, who retired from the bench in 2012, found out about the case from Schlesinger; she had told Schlesinger and other judges that she was available to do pro bono work.
Schlesinger annulled NYCHA’s decision and remanded the matter for another hearing. She found that Russo had not gotten due process, and that NYCHA’s appointment of a guardian “simply gave the facade that due process concerns were being respected.”
Furthermore, Schlesinger said, NYCHA was wrong to apply its written permission rule without considering all the circumstances of the case. She cited the First Department’s 2004 ruling in McFarlane v. New York City Hous. Auth., 9 AD3d 289, which denied a request by the grandchildren of a NYCHA tenant to succeed the tenancy, but stated there could be a right to succeed even without written permission in some circumstances.
Goodman said she was “hopeful” that NYCHA would change its position in response to the opinion.
“I think that it really illustrates the urgency of having counsel in these civil matters,” Goodman said. “It underscores, I think, the need for pro bono counsel, preferably by change by the Legislature, so there is a right to assign counsel in these cases.”
NYCHA is represented by one of its own attorneys, Kimberly Wong. The agency declined to comment on the decision.