Matter of Turnage v Hernandez

[*1] Matter of Turnage v Hernandez 2006 NY Slip Op 52559(U) [14 Misc 3d 1225(A)] Decided on December 1, 2006 Supreme Court, Kings County Kramer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 1, 2006
Supreme Court, Kings County

In the Matter of the Application of Eric Turnage, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

against

Tino Hernandez, as Chairman of the New York City Housing Authority, Respondent.



21968/06

Herbert Kramer, J.

Upon the foregoing papers, petitioner, Eric Turnage (Turnage) brings this application for a judgment, pursuant to CPLR Article 78, reversing and annulling the March 22, 2006 administrative decision of respondent Tino Hernandez as Chairman of the New York City Housing Authority (NYCHA or Housing Authority) which dismissed petitioner's remaining-family-member grievance for succession rights.

Background

(1)

This case stems from petitioner's efforts to gain a lease for his late grandmother's one-bedroom apartment in the Housing Authority's (William) Reid Consolidated Houses at 955 Rutland Road in Brooklyn. Ethel Church, petitioner's grandmother, had leased the premises beginning in February 1980 as the sole authorized occupant and had completed annual income affidavits on December 31, 2001 and November 20, 2002 which reiterated her sole occupant status. Petitioner claims that he had moved into the apartment and continuously lived there with his grandmother since November 2002 after she had submitted her 2002 recertification papers.

(2)

Ms. Church's lease, the Tenant Rules and Regulations and applicable federal regulations required her to notify NYCHA about all apartment occupants and their income [*2]and to seek and obtain NYCHA's prior written permission before allowing any other occupants to reside in the apartment.[FN1] However, no dispute exists that NYCHA received no such prior notice or request for written permission and that NYCHA gave no written permission for petitioner's occupancy at any time.

Instead, petitioner claims that he first orally notified respondent in June 2003 about his relationship to Ms. Church and his occupancy in the apartment. He alleges in his petition (paragraph 9) that he provided this notice when answering questions of two unnamed employees of Reid Houses, who, he claims, had then visited the apartment to tell Ms. Church that she owed back rent. Respondent, though, has disputed this oral notification.Petitioner indisputably reported himself in writing to NYCHA after receiving a January 15, 2004 letter for Ms. Church from NYCHA which summoned her to a meeting after she had failed to timely submit her 2003 income affidavit by December 2003 or early January 2004. That "call-in" letter informed Ms. Church that she faced possible tenancy termination proceedings for failing to verify her income. Mr. Turnage thereafter responded by submitting an undated income affidavit for his grandmother to the management office on February 2, 2004 listing her and himself as apartment occupants, the first received written notice to NYCHA of his familial relationship and occupancy.[FN2]

The Housing Authority responded by letter, dated that same day, February 2, 2004, warning Ms. Church of possible tenancy termination for having an unauthorized occupant in her apartment and scheduling a February 6, 2004 appointment. However, no further action directly involving Ms. Church thereafter occurred as she died on March 9, 2004 at Kingsbrook Jewish Medical Center. Petitioner notified NYCHA about her death on January 13, 2005 when, after receiving an income affidavit form mailed to her, he submitted the [*3]completed affidavit listing her as "deceased," naming himself as occupant and signing in the space marked "Lessee's Signature."

(3)

NYCHA responded by a February 11, 2005 letter to petitioner which scheduled him for a "remaining family member" grievance. The Housing Authority's policy, as revised for permanent permission requests on or after November 24, 2002, allows such individual to take over a former tenant's lease under certain circumstances. Gaining succession requires that an occupant (1) lawfully moved into the apartment (2) qualifies as one of the specified relatives of the tenant of record (3) remained continuously in the apartment for not less than one year immediately prior to the date the tenant of record vacates the apartment or dies and (4) otherwise meets eligibility requirements for public housing in accordance with applicants' admission standards (see NYCHA Management Manual, ch VII, § [E][1][a] and NYCHA Occupancy and Remaining Family Member Policy Revisions General Memorandum (GM) 3692, as amended July 11, 2003).[FN3] These requirements and NYCHA's written consent policy, taken together, mean that NYCHA requires a person seeking remaining-family-member status to (a) have maintained one year's continuous residency in the apartment from the date of entry with (b) NYCHA's written permission.

(4)

Administrative rulings regarding petitioner's remaining-family-member grievance resulted in the Reid Housing Manager denying the grievance at the first step of the process. That ruling, dated March 2, 2005, noted that petitioner had failed to obtain management's permission to live in the apartment prior to Ms Church's death and therefore viewed petitioner as an unauthorized household member who had gained no remaining-family-member rights. The Brooklyn Borough Administrator concurred in a March 22, 2005 ruling that again found that petitioner had "never received NYCHA permission to permanently reside in the apartment."

A formal hearing thereafter occurred on February 28, 2006 and the Hearing Officer's March 1, 2006 Decision and Disposition dismissed petitioner's grievance. The Decision acknowledged petitioner's qualifying familial relationship and a Social Security Administration letter, dated November 4, 2003, addressed to him at the apartment.

However, the Decision concluded that "[p]etitioner yet failed to show that he lived with the late tenant for a full year prior to her demise, or that, prior to 2004, project management even knew of his presence. Ultimately, there is not even a claim that he had permission to reside in the subject premises."

The Housing Authority, by a Determination of Status for Continued Occupancy, dated March 22, 2006, dismissed the grievance in compliance with the Hearing Officer's Decision [*4]and Disposition. It thereafter commenced a holdover proceeding against petitioner in April 2006 in Kings County Civil Court and this Article 78 proceeding has ensued.

The Parties' Positions

Petitioner's Position

Petitioner argues that he satisfied the one-year residency requirement. He references a Brookdale University Hospital Administrator's July 21, 2006 letter, not presented at his formal hearing, noting that he had listed the subject apartment as his address for emergency services and inpatient admission records concerning treatment dating back as far as "3/03-3/04/03." An inpatient face sheet dated 3/26/03 and an emergency room patient face sheet dated 6/24/03 from the hospital, also not presented at the formal hearing, accompany a reply affirmation on petitioner's behalf. Such evidence, he contends, offers a basis for remanding the matter to NYCHA for a de novo hearing.

Petitioner also argues that the Housing Authority's alleged failure to provide notification about submitting a written request to permit his residency in the apartment after the filing of the income affidavit listing him as a resident should relieve him of such requirement. He further contends that NYCHA knew about and implicitly approved his residency after the February 2, 2004 income affidavit filing by taking no preventative action against his continued presence in the apartment for the more than one year period to the February 11, 2005 letter scheduling him for a remaining-family-member grievance.

Respondent's Position

The Housing Authority asserts that petitioner failed to qualify as a remaining family member considering that he never obtained its written permission for him to reside in the apartment, and he failed, in any event, to reside in the apartment for at least one year with management's permission. It cites requirements obligating the tenant to seek such permission.

NYCHA highlights the November 2, 2004 letter to the tenant advising her about tenancy termination proceedings for having an unauthorized occupant in the apartment as showing immediate preventative action against petitioner's presence, not acquiescence, upon learning that same day of his occupancy. Such response, it believes, deflates estoppel arguments which it concurrently views as inapplicable against a governmental agency seeking to perform its statutory duties.

NYCHA similarly regards any delay or laches claim concerning eviction proceedings as equally inopposite considering that petitioner fails to necessarily claim prejudice from its delay. In addition, NYCHA notes that petitioner, as a non-spousal, purported adult caretaker, would only have qualified for temporary, not permanent, residency in the apartment and thus would have lacked permission for permanent occupancy to qualify for succession rights.

NYCHA also asserts that petitioner received appropriate due process at the formal hearing. It challenges his purported new or additional information as failing to show that he [*5]moved into the apartment with its permission or that it knew that he lived there with his grandmother for a year before her death.

Discussion

(a)

An occupant seeking remaining-family-member status proceeds as a licensee (Matter of Abdil v Martinez, 307 AD2d 238, 242 [2003] ["federal regulations create a clear distinction between the tenant and family members who are not tenants . . . [S]uch a family member remains a mere licensee"] [internal citation omitted]). The Abdil decision explained that the Housing Authority's Management Manual "allows for a non-tenant [i.e. a licensee] to become a permanent member of the tenant's household under narrowly defined circumstances, but requires the tenant of record to acquire the written consent of the project manager for the proposed occupant" (id. at 240).

That decision also summarized the Management Manual's provisions regarding remaining-family-member succession rights where the tenant of record dies or moves. Remaining family members gain succession rights to a lease "if the family member qualifies for public housing, and had moved into the apartment lawfully, and remained in the apartment continuously. If the proposed occupant had not moved in as part of the original household [as occurred herein], he or she will be considered to have moved in lawfully, if he or she had obtained the written consent of the project manager to reside there during the tenant's life" (id.).

In addition, the previously mentioned General Memorandum 3692, entitled "Occupancy and Remaining Family Member Policy Revisions," amended July 11, 2003, specified continuous occupancy (in Section IV [B], p 5) as applying to individuals "on all Occupant's Affidavit of Income from the date of issuance of written permission for permanent occupancy from the Housing Manager for not less than one year immediately prior to the date the tenant of record vacates the apartment or dies . . ."

(b)

Here, the administrative decision emphasized that "there is not even a claim that [petitioner] had permission to reside in the subject premises." In addition, his grandmother's death on March 9, 2004 prevented petitioner from meeting the one year residency requirement even if had received permission on February 2, 2004 when NYCHA received an income affidavit that listed him for the first time as residing in the apartment.

Evidence presented at the formal hearing only related to petitioner's residency from November 4, 2003 and remanding for a new hearing to introduce other information presented herein would yield no viably different result. Petitioner's claim that he informed two unnamed Reid Apartment employees in June 2003 that "he was Ms. Church's grandson and he was staying in the apartment" fails to resolve this matter. This claim regarding June 2003, while belatedly supplementing his hearing testimony showing that NYCHA first learned about his presence by the February 2, 2004 income affidavit filing, would still fail to [*6]establish that NYCHA knew about his residency a year before his grandmother's death on March 9, 2004.

The letter and face sheet records from Brookdale University Hospital only show that petitioner gave the apartment location as his address and fail to qualify as the normal indicia of residency such as a driver's license or voting card. More importantly, those documents and the proposed testimony of John Prince, President of the Resident's Association at Reid Apartments that petitioner "came to live in [Ms. Church's] apartment in 2002," even if credited, fails to show that NYCHA knew of such purported residency thereby negating petitioner's ability to argue that NYCHA acquiesced in his residency for the requisite one year period. Failing to show that "the agency was aware of [his] presence," especially for the necessary occupancy time, compromises petitioner's arguments about acquiescence and implicit approval (Matter of McFarlane, 9 AD3d at 291; see also Matter of Chavez v Hernandez, 22 AD3d 408, 408 [2005]; Matter of Hutcherson v New York City Hous. Auth., 19 AD3d 246, 246 [2005]; New York City Hous. Auth. v Covington, 12 Misc 3d 141 (A) at **1 [2006]).

(c)

In addition, requesting permission for petitioner's occupancy represents a tenant's responsibility (see fn 1) and no estoppel lies against the Housing Authority for an alleged failure to provide necessary permission forms upon learning of his occupancy (id. and Matter of Stokely v Franco, 251 AD2d 97, 97-98 [1998]). Petitioner also suffered no prejudice from the Housing Authority's delay in pursuing eviction proceedings against him following its immediate notice on February 2, 2004 about tenancy termination proceedings against Ms. Church. Hence, this absence of prejudice nullifies any laches claim by petitioner (see Marcus v Village of Mamaroneck, 283 NY 325, 332 [1940] ["although there may have been delay on the part of the [NYCHA], there is nothing in the record to show that [petitioner has] in any way suffered as a result. . . the delay of [NYCHA] has afforded [petitioner] many years of unlawful use"]).

Here, as in Matter of Jamison v New York City Hous. Auth. (25 AD3d 501, 502 [2006]) which equally upheld denial of a petitioner's remaining-family- member application,

"[p]etitioner does not qualify as a remaining family member because [he] did not enter the apartment lawfully. Respondent never gave the tenant of record written permission for petitioner to join the household, and petitioner admitted that no such permission was ever obtained from project management for [him] to reside in the subject apartment . . . The record affords no basis for relieving petitioner of the written notice requirement since [he] failed to establish that respondent knew or implicitly approved of [his] permanent residency in the apartment" (internal citation omitted).

Accordingly, it is

ORDERED and ADJUDGED that the petition to reverse and annul respondent's

March 22, 2006 administrative decision dismissing petitioner's remaining-family-member grievance is denied and the proceeding is dismissed. [*7]

This constitutes the decision and order of this court.E N T E R,

J. S. C.

Footnotes

Footnote 1: For example, 24 CFR § 966.4 (a) (1) (v) requires tenant families "to request PHA [public housing authority] approval to add any other family member as an occupant of the unit" (see Matter of McFarlane v New York City Hous. Auth., 9 AD3d 289, 290 [2004]).

NYCHA's affidavit of income and family composition form, which tenants must annually complete, reminds tenants of the written consent requirement by stating, as appeared on Ms. Church's 2002 form: "NOTICE: List all occupants living in your apartment. Failure to do so may deprive them of all rights of occupancy. No person is allowed to reside in your apartment except authorized members of your family (which is based on authorized original family members who remain in continuous residence and births), unless written permission is REQUESTED by you and GRANTED by Management."

Footnote 2: Petitioner claims that he had originally brought her affidavit of income to the management office in January 2004 and then submitted another copy, stamped received February 2, 2004, in response to NYCHA's letter. The affidavit, bearing Ethel Church's purported signature, contains two question marks (??) after that signature with an additional signature of someone else below Ms. Church's purported signature.

Footnote 3: The Appellate Division, Second Department has recently found GM-3692, as amended July 11, 2003, valid in an unrelated context concerning NYCHA's "Minors Rule" (Silberstein v Greenstein, 32 AD3d 858, 859 [2006]).