Section 8 benefits restored under Article 78

There's a quick and easy way to challenge unfair governmental decisions in New York: the Article 78 proceeding. We call them Article 78's because the can be found in Article 78 of the Civil Practice Law and Rules. These are expedited proceedings that usually don't involve a trial, where you submit an affidavit and documentary evidence in an effort to convince the court that your ill-treatment by a State entity was "arbitrary and capricious" or that a hearing officer's adverse findings were not supported by "substantial evidence."

Article 78's are difficult to win because the government usually gets the benefit of its expertise in making administrative decisions. A determination is arbitrary and capricious when it shocks the conscience. A hearing officer's ruling is not supported by substantial evidence unless there is some evidence to support that decision. These burdens of proof make Article 78's an uphill battle.

But not always. In Matter of Bush v. Mulligan, handed down on May 6, 2008, the Appellate Division ruled in favor of a Section 8 recipient who was denied subsidized housing benefits because Westchester County thought she was defrauding the agency. The Appellate Division overruled that decision and ordered that the Section 8 benefits be restored. What happened was that at the hearing convened to determine whether to revoke Bush's benefits, it became clear that she was suffering from a cognitive deficit and having memory lapses. He couldn't answer the questions posed to him at the hearing. So the hearing was adjourned so that medical professionals could assess Bush's condition. These professionals unanimously agreed that Bush was not capable of remembering things and that she "cannot function autonomously at this point in her life."

The hearing officer ignored this evidence and ruled against Bush anyway, finding that "you were neglectful and avoided your responsibility to be truthful in relation to reporting complete and honest information regarding income change to the Section 8." The Appellate Division cannot understand why the hearing officer ignored all this medical evidence about Bush's mental condition. So, in particularly strong language, the Court concludes:

In light of the clear and uncontroverted evidence that the petitioner is suffering from vascular dementia, a progressive disease that affected her memory and ability to handle her affairs, combined with additional evidence that the petitioner's IQ placed her in the mildly mentally retarded range, the Department's determination to disqualify the petitioner from the Section 8 Program based upon fraud and an intentional failure to provide truthful information, was not supported by substantial evidence. The result of this disqualification is to leave this elderly, mentally-challenged individual homeless, a result not only contrary to law, but shocking to one's sense of fairness.