Monges v Rhea

[*1] Monges v Rhea 2009 NY Slip Op 52720(U) [26 Misc 3d 1214(A)] Decided on December 16, 2009 Supreme Court, New York County Solomon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2009
Supreme Court, New York County

Alicia Monges, Petitioner,

against

John Rhea, as Chair of the New York City Housing Authority, and the NEW YORK CITY HOUSING AUTHORITY, Respondents.



401645/09



Petitioner was represented by Diane LaGamma, Esq., of the Legal Aid Society, 230 East 106th Street, New York, NY 10029, tel. no. 212-426-3052. Respondents were represented by Sonya Kolaides, Esq., of the NYCHA, 250 Broadway, New York, NY 10007, tel. no. 212-776-5000.

Jane S. Solomon, J.

INTRODUCTION

Petitioner, Alicia Monges (Monges), pursuant to CPLR Article 78, challenges the determination of Respondents John Rhea and the New York City Housing Authority (NYCHA) denying her remaining family member grievance. Monges claims that Respondents incorrectly refused to recognize her as a remaining family member of the tenant of record for 20 Paladino Avenue, Apt. 1A, in New York City (Apartment). This petition is denied for the following reasons.

FACTS

In 2006, Petitioner's mother, Margarita Monges (Tenant), suffered from a severe illnesses, characterized in the petition as a disability, which required round the clock care. Petitioner, who is also disabled, moved with her teenage son into the Apartment to care for Tenant. On October 12, 2006, Monges and Tenant requested permanent permission for Monges and her son to move into the Apartment. The request was denied due to overcrowding.[FN1]

Petitioner states that Tenant was not informed that she could appeal the determination, but was instead given a new application, which was submitted on July 12, 2007, and denied on July 26, 2007, also due to overcrowding. On February 9, 2008, Tenant died and Monges attempted to assert her remaining family member right to become the new tenant of record. The request was denied.

Petitioner filed a grievance, which was heard on December 9, 2008. The hearing officer [*2]found that NYCHA properly denied the permanent residence request, but should have granted Monges temporary resident status. Temporary residence rights, however, terminate upon the tenant of record's death. Therefore, Monges did not fulfil the requirements to become the tenant of record. The grievance was denied and this petition followed.

DISCUSSION

Monges asserts two claims. She first argues that the denial of her request was incorrect because it did not make reasonable accommodation to Tenant's disability. Second, she argues that NYCHA failed to follow its own rules and policies with respect to nondiscrimination based on disability in that it did not give notice of its denial, did not inform the Tenant of the grievance procedure, did not take the required steps in relation to Tenant's disability, and thus violated the Americans with Disabilities Act (ADA).

Respondents contend that Monges lacks standing to pursue a claim of discrimination against Tenant and that the statute of limitations bars the claims. In the alternative, Respondents argue that Monges does not qualify as a remaining family member as the hearing officer did not err in its decision, and that there is no evidence of causation that shows that the NYCHA denied Tenant's request because of her disabilities.

Standing ensures that a party seeking relief has a sufficient stake in the outcome of an action so as to present a court with a dispute that is capable of judicial resolution. A petitioner must have suffered a legally cognizable injury in order to obtain standing, (New York City Coalition for Preservation of Gardens v. Giuliani, 246 AD2d 399, 400 [1st Dept, 1998]), specifically, an "injury in fact - an actual legal stake in the matter being adjudicated" (Security Pacific Nat. Bank v. Evans, 31 AD3d 278, 279 [1st Dept, 2006]).

Monges admits that Tenant failed to gain permission for Monges to live in the apartment. This violates the requirement that a tenant obtain written permission before allowing someone to move into an NYCHA apartment (see Respondent's Ex. E). Tenant had the opportunity to appeal the determination, and was given notice of such on her lease (Respondent's Ex. G, ¶ 20), and on the permanent permission request form (Respondent's Exs. I and K). Tenant did not do so.

Monges argues that Tenant was injured and discriminated against because the NYCHA did not follow its own rules. Assuming, arguendo, that Monges's contentions are true, the injury and discrimination described in the petition was suffered by Tenant, not Monges. Therefore, Monges was not injured in fact, and she lacks standing to bring this action.

Furthermore, the NYCHA ADA/Section 504 griveance procedure, the special procedure that Monges alleges was not followed by NYCHA, is only available when a tenant brings a disability discrimination complaint against the NYCHA (see Petitioner's Ex. E). Tenant never filed a grievance on the ground that the denial of Monges's status was a discriminatory act toward Tenant, nor is there any allegation in the petition that Tenant believed that the denial was based on discrimination. Regardless, Monges's "attempt to invoke the ADA on behalf of the tenant of record . . . fails since [she] does not have standing to assert such a [*3]claim" (Rivera v. New York City Housing Authority, 60 AD3d 509, 510 [1st Dept, 2009]).

For the foregoing reasons, it hereby is

ADJUDGED that the petition is denied and the proceeding is dismissed. This constitutes the decision and judgment of the Court.

Dated: December, 2009

ENTER:

_________________________

J.S.C. Footnotes

Footnote 1: The maximum occupancy for a one-bedroom apartment is one person, a spouse and any children under six years of age.