McCollum v. City of N.Y.

79 N.Y.S.3d 888

Christopher MCCOLLUM, Plaintiff(s),

v.The CITY OF NEW YORK, Bill DeBlasio, in his official capacity as the Mayor of the City of New York, Mayor's Office of Housing Recovery Operations a/k/a Build It Back, Defendant.

51199

2015

Supreme Court, Kings County, New York.

Decided on June 26, 2018

Pro Se Petitioner, Christopher McCollum, Esq., Law Offices of Christopher McCollum, 500 Marlborough Rd., Suite 3, Brooklyn, NY 11226

Attorneys for Respondents, Zachary W. Carter, Corporation Counsel for the City, 100 Church Street, New York, NY 10007

Katherine A. Levine, J.Petitioner Christopher McCollum ("petitioner" or "McCollum") seeks an order vacating the March 1, 2016 determination of the New York City Mayor's Office of Housing Recovery Operations ("HRO" or "respondent"), which denied petitioner benefits under the Build it Back Program ("Build it Back"). Petitioner claims that he is eligible for benefits under Build it Back because his home was damaged by Hurricane Sandy ("Sandy").

The United States Department of Housing and Urban Development ("HUD") allotted Community Development Block Grant Disaster Recovery ("CDBG-DR") funds to New York City for Sandy recovery activities. The City implemented a disaster recovery program known as "Build It Back" that uses CDBG-DR funds to aid in the recovery of residential property damaged or destroyed by Sandy, and established HRO to administer the program. NYC Administrative Code 28-112.11 ; Brooklyn Ctr. for Independence of the Disabled v. Bloomberg , 980 F.Supp.2d 588, 629 (S.D.NY 2013). Build It Back is administered in accordance with the Disaster Relief Appropriations Act of 2013 ( Public Law 113-2, 127 Stat. 4 ("Sandy Act") passed by Congress. The City's receipt of CDGB-DR funds creates an expectation that the funds will be used in accordance with federal mandates. Sapp v. City of New York , 2013 N.Y. Slip Op. 32325(U), 2013 WL 5423938, *2, 2013 NY Misc. LEXIS 4365, *5 (Sup. Ct. N.Y. Co. 2013).

The Sandy Act provides that in order to receive CDBG-DR funds, the grantee must submit an "action plan" to the HUD Secretary detailing how it will use the funds to "address long-term recovery, restoration of infrastructure and housing, and economic revitalization in the most impacted and distressed areas." DISASTER RELIEF APPROPRIATIONS ACT, 2013; SANDY RECOVERY IMPROVEMENT ACT OF 2013 , 113 P.L. 2, 127 Stat. 4, 15. In May 2013, HUD approved the City's CDBG-DR Action Plan ("Action Plan"), which has since been amended. http://www.nyc.gov/html/cdbg/downloads/pdf/apa11_technical_amendment_summary.pdf. Pursuant to the Action Plan, the City is required to draft policy and procedure manuals to ensure compliance with programmatic and financial requirements of CDBG-DR. Action Plan , p. 231. In accordance with this directive, the City established criteria for eligibility in the NYC Build It Back Policy Manual 1-4 Properties , Version 1.6 ("Manual"). It provides that "[t]his Manual constitutes the primary governance for the implementation of the one to four unit Repair, Reconstruction, Reimbursement and Relocation Programs." Manual , at 3-7.

On November 25, 2013, petitioner applied for Build it Back benefits, claiming Sandy-related damages to his home, including multiple broken and cracked windows, and damage to the rear yard, chimney, facade, and roof tiles. In March 2014, an inspector from Build it Back visited petitioner's home to conduct a damage assessment and found "no apparent storm related damages from Hurricane Sandy." In October 2014, petitioner's claim was denied based on the assessor's findings.

Petitioner submitted a Request for Review ("RFR") challenging this determination with an unsworn report of Paul J. Besmertnik, a home inspection engineer (the "Engineer's Report"), which did not bear any signature, certification, or professional seal. Based on a visual inspection of the property and what petitioner told him, Besmertnik estimated that it would cost almost $75,000 to make repairs to the Sandy-related damages to the glass panes, storm windows, chimney, and siding shingles. However, Besmertnik did not offer any explanation as to why he formed the opinion that the damages resulted from Sandy. HRO again denied petitioner's eligibility because the documentation he submitted did not demonstrate that the damage was caused by Sandy, and it suggested examples of acceptable documentation, such as correspondence showing Sandy-related assistance from FEMA, or an insurance payment for a Sandy related structural loss. Petitioner appealed without offering further documentation supporting his claim, and HRO again denied petitioner's eligibility.

Petitioner claims that respondent's determination was arbitrary and capricious because it disregarded the Engineer's Report. Respondent contends that petitioner failed to meet the criteria for eligibility as set forth in the Manual.

In reviewing respondent's determination, the Court must ascertain whether it was "arbitrary and capricious," and made "without sound basis in reason or regard to the facts." Mtr. of Murphy v. New York State Div. of Hous. & Community Renewal , 21 N.Y.3d 649, 654-655, 977 N.Y.S.2d 161, 999 N.E.2d 524 (2013) ; Mtr. of King-Rubie v. Wambua , 141 A.D.3d 589, 589-590, 34 N.Y.S.3d 590 (2nd Dept. 2016) ; Mtr. of Morton v. New York City Dept. of Hous. Preserv. & Dev. , 93 A.D.3d 727, 939 N.Y.S.2d 875 (2nd Dept. 2012). An agency's determination is deemed arbitrary and capricious if it has...