[Link to
GCH-0015](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0015LOPS.doc)

[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0019](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0019LOPS.doc)

[Link to
GCH-0020](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0020LOPS.doc)

[Link to
GCH-0021](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0021LOPS.doc)

[Link to
GCH-0022](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0022LOPS.doc)

Legal Opinion: GCH-0016

Index: 2.245

Subject: PH Due Process Determination: New York

December 3, 1991

Honorable Mario M. Cuomo

Governor of New York

Albany, New York 12224

Dear Governor Cuomo:

I am happy to advise you of a new public housing \"due

process determination\" for the State of New York.

Under Federal law, if the Secretary of the Department of

Housing and Urban Development (HUD) determines that law of the

jurisdiction requires a pre-eviction court hearing with the

basic \"elements of due process\" (42 U.S.C. 1437d (k), as amended

in 1990), a public housing agency (PHA) is not required to

provide an administrative grievance hearing before evicting a

public housing tenant for:

1\. Any criminal activity that threatens the health,

safety, or right to peaceful enjoyment of the premises

of other tenants or employees of the PHA; or

2\. Any drug-related criminal activity on or near such

premises.

In accordance with the law, HUD has recently issued a

regulation which revises HUD\'s definition of due process

elements at 24 CFR 966.53(c) (56 Federal Register 51560,

October 11, 1991).

Pursuant to the revised regulation, HUD has determined that

the law governing summary eviction proceedings under Article 7

of the New York Real Property Actions and Proceedings Law

requires that the tenant have the opportunity for a pre-eviction

hearing in court containing the elements of due process as

defined in 24 CFR 966.53(c) of the HUD regulations. The basis

of this determination is explained in the legal analysis

enclosed with this letter.

In accordance with HUD\'s determination, a PHA operating

public housing in the State of New York may exclude from its

administrative grievance procedure any grievance concerning an

eviction or termination of tenancy which involves any criminal

activity that threatens the health, safety, or right to peaceful

enjoyment of the premises of other tenants or employees of the

PHA, or any drug-related criminal activity on or near such

premises.

When a PHA evicts a tenant pursuant to summary eviction

proceedings under Article 7 of the New York Real Property

Actions and Proceedings Law for the reasons set forth above, the

PHA is not required to afford the tenant the opportunity for an

administrative hearing on the eviction under 24 CFR Part 966,

and may evict a public housing tenant pursuant to a decision in

such judicial action.

Very sincerely yours,

Jack Kemp

Enclosure

HUD DUE PROCESS DETERMINATION

for the

STATE OF NEW YORK

TABLE OF CONTENTS

I. Jurisdiction

II\. Elements of Due Process

III\. Overview of New York Eviction Procedures

IV\. Analysis of New York Eviction Procedures for

Each of the Regulatory Due Process Elements

V. Conclusion

ANALYSIS

I. Jurisdiction: State of New York

II\. Elements of Due Process

Section 6(k) of the United States Housing Act of l937

(42 U.S.C. 1437d (k), as amended by section 503(a) of the National

Affordable Housing Act of 1990, Pub. L. l0l-625, approved

November 28, l990), provides that:

For any grievance concerning an eviction or termination of

tenancy that involves any criminal activity that threatens

the health, safety, or right to peaceful enjoyment of the

premises of other tenants or employees of the public housing

agency or any drug-related criminal activity on or near such

premises, the agency may . . . exclude from its grievance

procedure any such grievance, in any jurisdiction which

requires that prior to eviction, a tenant be given a hearing

in court which the Secretary determines provides the basic

elements of due process . . . .

The statutory phrase \"elements of due process\" is defined by

HUD at 24 CFR § 966.53(c) as:

. . . an eviction action or a termination of tenancy in a

State or local court in which the following procedural

safeguards are required:

\(l\) Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction;

\(2\) Right of the tenant to be represented by counsel;

\(3\) Opportunity for the tenant to refute the evidence

presented by the PHA including the right to confront

and cross-examine witnesses and to present any

NEW YORK DUE PROCESS DETERMINATION

affirmative legal or equitable defense which the

tenant may have; and

\(4\) A decision on the merits.

HUD\'s determination that a State\'s eviction procedures

satisfy this regulatory definition is called a \"due process

determination.\"

The present due process determination is based upon HUD\'s

analysis of the laws of the State of New York to determine if

available eviction procedures under those laws require a hearing

which comports with all of the regulatory \"elements of due

process,\" as defined in 966.53(c).

HUD finds that the requirements of New York law governing

summary eviction proceedings under Article 7 of the N.Y. Real

Property Actions & Proceedings Law (\"RPAPL\") include all of the

elements of basic due process, as defined in 24 CFR 966.53(c).

This conclusion is based upon requirements contained in the New

York Constitution, statutes, case law and court rules.

III\. Overview of New York Eviction Procedures

Special proceedings to recover possession of real property

are governed by Article 7 of the RPAPL.

Such proceedings may be brought in a county court, the court

of a police justice of a village, a justice court, a city court

of civil jurisdiction, or a district court. RPAPL 701(1).

Summary eviction proceedings are also within the concurrent

jurisdiction of the Supreme Court.

Article 7 of the RPAPL governs summary eviction proceedings

in all State courts. Such proceedings are also subject to

provisions of the New York Civil Practice Law and Rules (\"CPLR\").

Article 7 proceedings are subject to the due process

guarantee under Article 1, Section 6 of the New York State

Constitution. Article 1, Section 6 provides that \" n o person

shall be deprived of life, liberty or property without due

process of law.\"

NEW YORK DUE PROCESS DETERMINATION

IV\. Analysis of New York Eviction Procedures for Each of the

Regulatory Due Process Elements

A. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction

(24 CFR 966.53(c)(l))

A summary eviction proceeding is commenced by service of a

petition and a notice of petition. RPAPL 731.

Service

Service of the petition and notice is governed by RPAPL

735, which requires personal delivery to the respondent or

substituted service, meaning personal delivery to \"a person of

suitable age and discretion\" who resides or is employed at the

premises sought to be recovered.

If the respondent or a person of suitable age and discretion

cannot be served \"upon reasonable application\", service may be

made by affixing copies of the petition and notice of petition to

a conspicuous part of the premises sought to be recovered \"or

placing a copy under the entrance door of such premises.\" RPAPL

735(1) (known as \"nail and mail\" service until the quoted

portion was added by L. 1980, ch. 370; we will refer to the

amended procedure as \"nail and mail\" as well). When either

substituted service or nail and mail service is used, additional

copies of the papers must be mailed to the respondent within one

day of service by regular first class mail and also by registered

or certified mail.

Nail and mail service may be used only after reasonable

efforts to find the respondent or a person of suitable age and

discretion have failed. Brooklyn Heights Realty Co. v. Gliwa,

459 N.Y.S.2d 793 (App. Div. 1983). Before substituted service

may be used, \"there must be a showing that \'upon reasonable

application\' admittance to the premises cannot be obtained and/or

a proper person cannot be found to whom the process may be

delivered.\" Eight Associates v. Hynes, 476 N.Y.S.2d 881 (App.

Div. 1984), aff\'d. 492 N.Y.S.2d 15 (1985). See also Fourth

Avenue Management v. Brosnahan, 498 N.Y.S.2d 441 (App. Div.

1986). A single attempt at personal delivery on a weekday

afternoon has been found insufficient to meet the statutory

requirement of reasonableness. Eight Associates, 476 N.Y.S.2d

881; S.P.S.G. Inc. v. Collado, 448 N.Y.S.2d 385 (Civ.Ct., N.Y.

Co. 1982). While \"due diligence\" is not required in a summary

proceeding to evict, RPAPL 735(1), service must be attempted at

a time when the process server can \"reasonably expect the tenant

NEW YORK DUE PROCESS DETERMINATION

to be at home . . . .\" Parkchester Apts. Co. v. Hawkins, 447

N.Y.S.2d 194 (App.T. 1981). Under the Parkchester holding, a

single unsuccessful attempt at personal delivery at a reasonable

time is sufficient to justify the use of \"nail and mail\" service.

It has been held that the procedure provided by RPAPL 735

satisfies minimum standards of due process. Velazquez v.

Thompson, 451 F.2d 202 (2d Cir. 1971).

Notice of Petition

The notice of petition must specify the time and place of

the hearing on the petition. Unless the summary eviction is for

nonpayment of rent, the return date of the hearing must be at

least five days, but no more than twelve days after service.

RPAPL 733(1). According to RPAPL 731(2) the notice of

petition:

Shall specify the time and place of the hearing on the

petition and state that if respondent shall fail at such

time to interpose and establish any defense that he may

have, he may be precluded from asserting such defense or the

claim on which it is based in any other proceeding or

action.

RPAPL 733(2) allows for 2-hours notice of an order to show

cause commencing an eviction proceeding where a lease has expired

and the order is sought on the last day of the term or the day

thereafter. However, this statute is used essentially in

commercial rentals and would not be available in public housing

evictions. See, Shelton Holding Corp. v. John Klinger & Son,

Inc., 282 N.Y.S. 401 (App.T. 1935).

The Petition

The petition in an eviction proceeding must comply with

RPAPL 741 which requires the petitioner to:

1\. State the interest of the petitioner in the premises

from which removal is sought.

2\. State the respondent\'s interest in the premises and his

relationship to petitioner with regard thereto.

3\. Describe the premises from which removal is sought.

4\. State the facts upon which the special proceeding is

based.

NEW YORK DUE PROCESS DETERMINATION

5\. State the relief sought.

In order to \"state the facts upon which the special

proceeding is based,\" the petition must allege with

\"particularity the alleged violations or defaults under the lease

upon which the landlord claims to rely.\" Olivero v. Duran,

334 N.Y.S.2d 930, 935 (Civ.Ct., Queens Co. 1972). In construing

language similar to that contained in 741(4), the courts have

held that \"a tenant is entitled to a concise statement of the

ultimate facts upon which the proceeding is predicated so that

the issues, if any there be, are properly raised and can be met.\"

Giannini v. Stuart, 178 N.Y.S.2d 709, 711 (App. Div., 1958); See

also Carriage Court Inn, Inc. v. Rains, 524 N.Y.S.2d 647

(Civ.Ct., N.Y. Co. 1988); Harris v. Bigelow, 515 N.Y.S.2d 176

(Civ.Ct., N.Y. Co. 1987); and Schreier v. Albrecht, 482 N.Y.S.2d

674 (Civ.Ct., Queens Co. 1984).

Taken together, the requirements for valid service, for the

notice of petition, and for the petition itself, clearly provide

notice which apprises the respondent of the landlord\'s grounds

for seeking eviction. They also give the respondent a reasonable

opportunity to appear and present a defense.

Adequate notice of the eviction proceeding is also required

by the due process clause of the State Constitution. Article 1,

Section 6.

Conclusion

HUD concludes that State law governing New York\'s Article 7

summary eviction procedure, as applied by the courts, requires

adequate notice of the grounds for eviction as required by HUD\'s

due process definition at 24 C.F.R. 966.53(c)(1).

B. Right to be represented by counsel

(24 CFR 966.53(c)(2))

The right of a civil litigant to be represented by counsel

at a litigant\'s own expense is guaranteed by CPLR 321(a): \" a

party . . . . may prosecute or defend a civil action in person or

by attorney . . . .\" Therefore, New York law meets the

requirements of 24 CFR 966.53(c)(2).

The right to representation by counsel is also mandated by

the due process clause of the State Constitution. Article 1,

Section 6.

NEW YORK DUE PROCESS DETERMINATION

C. Opportunity for the tenant to refute the evidence

presented by the PHA including the right to confront

and cross-examine witnesses (24 CFR 966.53(c)(3))

New York law provides an opportunity for the respondent to

refute PHA evidence.

RPAPL 743 provides that the respondent in an summary

proceeding may answer \"orally or in writing.\" Statements in the

petition known or believed by the respondent to be untrue may be

denied, and the respondent tenant may state that the tenant lacks

knowledge or information sufficient to form a belief, as

appropriate. This statement \"shall have the effect of a denial.\"

CPLR 3018.

New York case law also holds that the respondent in an

eviction hearing must be afforded the opportunity \". . . to

challenge the evidence upon which the public authority relies in

making its determination.\" Sherman v. Kopach, 347 N.Y.S.2d 140,

142, 75 Misc.2d 18 (1973). New York law also specifically

affords the respondent in an eviction hearing the opportunity to

confront and cross-examine witnesses. In an eviction proceeding

the tenant must be afforded minimal procedural due process in

accordance with the due process clause of the State Constitution,

including the opportunity to confront witnesses.

Sherman v. Kopach, 347 N.Y.S.2d 140, 142, 75 Misc.2d 18

(1975). Additionally, New York case law holds that a party to an

action may be called to testify by his adversary \". . . and, as a

general proposition, questioned as to matters relevant to the

issues in dispute.\" McDermott v. Manhattan Eye, Ear & Throat

Hospital, 255 N.Y.S.2d 65, 70 (1964).

In addition to refuting evidence presented by the PHA, the

tenant may refute the PHA\'s case by presentation of tenant\'s

witnesses and other evidence. A party has the right to obtain

evidence and testimony of witnesses at trial through the issuance

of a subpoena. CPLR 2302. The attorney for a party may issue

a subpoena without a court order, and a party unrepresented by

counsel may obtain a subpoena upon application to the clerk of

the court. CPLR 2302(a). A party may, with the approval of

the court, obtain an adjournment of the trial for ten days if

such an adjournment is necessary to procure necessary witnesses.

RPAPL 745(1).

In New York a tenant in an eviction proceeding has the right

under State law, including the due process clause of the New York

Constitution (Article 1, Section 6), to refute evidence and

NEW YORK DUE PROCESS DETERMINATION

confront and cross-examine witnesses as required by HUD\'s due

process definition at 24 CFR 966.53(c)(3).

D. Opportunity to present any affirmative legal or

equitable defense which the tenant may have

(24 CFR 966.53(c)(3))

Under New York law, the respondent has a right to present

any affirmative legal or equitable defenses. RPAPL 743

provides that respondent\'s \". . . answer may contain any legal

or equitable defenses . . . .\" In Dimou v. Cusanelli, the court

cites RPAPL 743 in holding that the \". . . Court has

jurisdiction to entertain any legal or equitable defenses

interposed in a summary proceeding.\" Dimou v. Cusanelli,

69 Misc.2d. 592, 330 N.Y.S.2d. 484, 491 (1972).

RPAPL 743 and Dimou explicitly establish that New York law

grants the tenant the opportunity to present any affirmative

legal or equitable defense as required by 24 CFR 966.53(c)(3).

E. A decision on the merits (24 CFR 966.53(c)(4))

New York law requires that a tenant must have the

opportunity for a decision on the merits, that is, a decision

based upon the facts and the law as presented in the case.

RPAPL 711(1) provides that:

A proceeding seeking to recover possession of real property

by reason of the termination of the term fixed in the lease

pursuant to a provision contained therein giving the

landlord the right to terminate the time fixed for occupancy

under such agreement if he deems the tenant objectionable,

shall not be maintainable unless the landlord shall by

competent evidence establish to the satisfaction of the

court that the tenant is objectionable.

Furthermore, according to RPAPL 745, \" w here triable issues of

fact are raised they shall be tried by the court unless, at the

time the petition is noticed to be heard, a party demands a trial

by jury, in which case trial shall be by jury.\"

Opportunity for a decision on the merits is also required by

the due process clause of the New York State Constitution.

Article 1, Section 6.

NEW YORK DUE PROCESS DETERMINATION

V. Conclusion

New York law governing an eviction proceeding under

RPAPL Article 7 requires that a tenant must have the opportunity

for a pre-eviction hearing in court which provides the basic

elements of due process as defined in 24 CFR 966.53(c) of the

HUD regulations.

By virtue of this due process determination by HUD under

section 6(k) of the U.S. Housing Act of l937, a PHA in New York

may evict a public housing tenant pursuant to an Article 7

eviction proceeding for any grievance involving any criminal

activity that threatens the health, safety, or right to peaceful

enjoyment of the premises of other tenants or employees of the

public housing agency or any drug-related criminal activity on or

near such premises, and is not required to first afford the

tenant the opportunity for an administrative hearing on the

eviction.