Matter of Allen v New York City Hous. Auth.

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Matter of Allen v New York City Hous. Auth. 2012 NY Slip Op 32190(U) August 8, 2012 Supreme Court, New York County Docket Number: 400836-2012 Judge: Eileen A. Rakower Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. 4NNED ON 812012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY EILEEN A. RAKOWER PRESENT: Hon. PART 15 Justice In the Matter of the Application of YVETTE ALLEN A N D NEIL ALLEN, 400836-2012 INUEX NO. Petitioners, MOTION D A T E 00 1 MOTION SEQ. NO. v - NEW YORK CITY HOUSING AUTHORITY, MOTION CAL. NO. Respondent. The following papers, numbered 1 to were read on this motion for/to Notice of Motion/ Order to Show Cause Answer - Affidavits Replying Affidavits - Exhibits . Cross-Motion: - Affidavits Exhibits ... - ~. Yes - .~ I I PAPERS NUMBERED I 2, 3, 4, 5 - X No Yvctte Allen and Neil Allen ( Petitioners ) bring this Article 78 proceeding for revicw ol. thc New York City Housing ALithority s ( NYCHA ) administrativc decision to deny them sirccessiotl 2 s ~ u m a i ~ i i n g - ~ ~ r n i I y - m c n to e ~ - s 1 i b the public housing apartment which w x Icased to their now deccased ~iiothcl-, Dora Joncs ( Jones ). Ioties apartiiient is locatcd L i t 2 I20 Raidall Avcnuc, Apt. OG, in the Castlc I lill Houses in the Bronx. I n September 2008, NYCf-IA coiiiIiienced proceedings to terminate Joiies s tenancy ibr lion-dcsirability a n d brcach ol- rulcs arid r c g ~ i l ~ t i o ~ w allcgins, ainoiig otlicr things tliut she: ( 1 ) perimittecl Natal io Allen, an unauthor-izcd c) c c: 11 p I i t , t c) I-c i d e i ii I1cr ;i r t m c n t, and (2 ) t 1e ii n a 1 t h c) I i%e o c c up a11 p (3sse s s ed i s pi 1 d t ticroin on developincnt groLitids. Siicli tonalicy was let-niinatecl on MLirch 4, 2009 after Joncs failed t o appear :it 31-1 acliniiiistrativc hearing,. UNFILEQ JUDGMENT This judgment has 1101been entered by the County Clerk and notice of entry cannot be served based hereon. To 1 obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk s Desk (Room 141E). [* 2] Joncs d i e d in Septciiibcr 3,000, still in posscssioii ol the pi-cmises. In April 70 I O , Pditiotiei-s, ,Joiies s chil~lreii, with thc Pi-opci-ty Manager concerning their met re q 11 c s t t c) be c o i 11e re i i i a i t I iii g - h i 1 i I y - I 11e iii h c r s t ( . c, I I e s s a p art111 ii 1. Thc P r o p c r t y I c Mniiagc-1-clctermiii~~l Petitioncrs arc i m t cntitlecl lo a leasc because Petitioners thut v I I c LI t e d t I 1 c a pa t t i i i u n t ye a I s ago a11d J ( ) nc s i i t v c I- c) I3t a I I I e cl i i i :i t i age11c i it s w r i tt e 11 1 pet-mission Ibr Petitioners to re+joitithe huilscliold. I he Property manager fLr-thcr found Pctitivnors WI-c not entitled to :I Icuse h c c a ~ t :Ncil fiiilccl thc criiiiinal bacl;gi-uiind cIiecl<and Jones s tenancy was teriiiiiialed o i l Mu-ch 4, 3009. In Aitgirst 30I O , Petitioncrs inel with the L3oroiigIi Manager, who uplitlld the Property Mmrigcr s d cc is i c) ii aiicl cl i sin i s sed Petitione r s re 111 ai 11 i iig-fa i i i i Iy - ni e 111 be r p i e van c e. A NYCHA ticaring was held o i i I>ccemtm 22, 20 1 1, At the hearing, both Yvetlc mid Neil stated that thcy iiscd to live in this apartiiirnt as children but admittcd they h a v e not lived thew recently, but had been b a d a n d l ortli to take care of their mother. Although it was admitled that iieilhcr c) I thcir naiiics wcrc on the lease, Yvotte clainicci shc and Neil were paying thc rent and taking care of some of [Jones s] personal business before Jones died and estiimted thcy hcgan paying the rent in September or October of 2009. I Ioiisiiig Assistant Betaiiia Medirili testified that .Jones did not list either Neil or Yvette as occupants ol lier household in any ofthe scvcii dlidavi t s of income she submitted between 2003 aiid her dcath. Slit: testified that Jones did not seck pcrmisxion for Petitioners to be added to tlie family coiiiposi tion and managcnient had no knowledgo Petitioners i-usidcd in the apartmciit i i r i t i 1 seven moiitlis after Jones s dcath, whcii Y vctte iioti fied tmiiagement that Joiics had died. NYCHA lnvcstigator Michael Saiitmgclo testi ficd that hc conducted an investigation with rcspect to Neil s crimirial backgrouiid and li)und that Neil had becn convicted for five misdeiiieanors since 2006. After rccoiiiititig the tcstinioiiy, the licaring officer dcnied Petilivncr s gricvaiicc. I hegrievanc;c was denied oti the grounds that Petitioners failed to obtain pemi i ss i o ti fro111 t 11 c cl ev el o pm e i i t n i a 11agcr to .join ten a i t s h o 11 scho I d ; becu LI sc the tenancy was tci*iniiintccjOJI Mar+ch4, 2009; and due to Ncil s ineligibility to succeed to tlie lease until Scptembel- 16, 20 14 because 01 thc rcsults of his criminal check. Where tlie substantial cvidence issue specified i n question fo~ir section oi 7803 is not raised, the court in which the procccding is commenced shall itself [* 3] dispose ol the issues i n the proceeding. (Scr, CPLR 7SOJ/,y]). As Petitioner has not raised the substantial evidence standard i n its petition, this proceeding remains beforc this court. I t is well seltlcd that thc [j]udicial rcvitlw ol m admiiiistrativc determination is coniincd to the facts and record adduced betilre thc agency . (Muttcr of Y~~.bot~oiig/i 1 , Frumw, 0 5 N.Y.2d 342, 347 [2OOOJ, quoting M d t w of Funclliv Nt w 1 York C ity C ot7c.ili~itiori & A p p ~ l Boaid, 90 A.D.2d 756 [ 1st Ilcpt. 1082]). Thc ,~ reviewing court may not substitute its judgment for that ofthe agcncy s determination but must decide if the agency sdecision is supported on any reasonable basis. (Mdtcr of C1anc;y -Ciillc~i Storngc Co. v. Boirrd ofHrction.r of the City of Ncw York, 98 A.D.2d 635,630 [lst Dept. 19831). Once the court finds 3 rational basis exists for the agency s detcrminatioii, its revicw is ended. (Mutter. of Siillivan Cotinty Harness Hacing Associ~ifion, v. Glmscr, 30 N.Y. 2d 269, 277-278 [ 19721).The court may /m. oiily declarc an agency s deteniiiiiation arbitrary and capricious il it finds that there is no rational basis for the dctennination. (Matter of Pcdl v. Board of Education, 34 N.Y.2d 222, 23 1 [ 1 3741). l hc hearing officer s decision to deny tcnancy to Pctitioriers as remainingfaiiiily-membet+s supported by a rational basis. First, NYCHA specifically prohi bits is family ~nembers who remain after a tciiaricy tias becti teriiiiiiatcd from obtaining r.cmainin~-~~iriily-meiiiber Petitioners, thcrefoi-c, do riot qualify as remainingstatus. f ainily-members under NYCT-TA s pol icy becaiisc NYC HA terminated Jones s tenancy on def ault for noridesireability aiid breach o11NYCHA rules and regulations prior to tier d c a ~ h . Moreover, NYC IIA rules rcquirc lones to oblain written permission from the dcveloptnerit iiiatiager to perimiiciitly add Petitioners to her. h o LI se h o 1d cornp o s i t i c) t i . .Ion cs n e v c r sLIbiii i t t ed s LICti 11 ru q ii est aiid inanageiii ent ne vc r gr at i t cd P c t i t i c) i i cr s p e riii i s s i on t c) I-cjo i i i J o n c s s h o IIse 11 o 1d. F ~1 rt lier , N Y C 1 1A p o 1i cy rcquir-cs Petitioners to bc otherwise eligible for public housing to succecd Jones s leasc as r~i~i~~itiing-l:;lmily-i~iutnbcrs.does not quali [y as a r e i n a i n i n ~ - ~ ~ m i l y Neil iiitmt~et., due to his five niisdemcanor convictions i n the past ten years. Whereli-,re, it is Irereby, AD,ILJDGED tliat this pctition is denicd and the proceeding is disniisscd. 3 [* 4] dispose ofthc issues i n the proceccfiiig. C PLR 7804Ly]). As Petitioner-has not raiscd the substantial evidence staiidard in its petition, this procccding remains before this court. ( L S ~ ~ ~ 7 , I t is wcll settled that the [j]udici:ial review ol an adniinistr-ative dctermin;2tioii is conlincd to the facts and record adduced before thc agency . (Mlitter qf Yurlxwoiij$i v. ki.anc o,0 5 N.Y.2d 342, 347 [2000], quoting Mlrtter of Fcinclli v. Ncw York C ity 1 7 0 ~ ~ ~ i l i ~ ~.4ppccr/s Rocwd, 90 A.Jl.2~1 & tio~7 756 [ 1 st Dept. 19821). The reviewing court mny not substitute its Judgment for that ofthe iigcncy s clcterinination but miist decide i I thc agency s decision is supporled oti ally rcasonablc basis. (Mdtcr. of Clcincy -CiiIlc11 Stsrcrgc Co. v. Bomd of Elt.ctiori,v of the City of New York, 98 A.D.2d 635,636 [ 1 st Dept. 19831). Once the court finds a rational basis exists for the agency s detei-miiiation, its rcview is ended. (Mciltcr of Srillivnn County H m m , s s Rncin~As,socicrtioi.2, v. Glmser, 30 N.Y. 2d 269,277-278 r19721). The court tnay Inc. only declare a n agency s determination arbitrary aiid capricious if it finds that there is iio rntioiial basis for the determination. (M~7tte.r ofPcll v. B o w d o Educution, 34 f N.Y .2d 222, 23 I 119741). rhe liexirig offycer s decision to dcny tenancy to Pctitioners as remainingi amily-meriibcrs is supported by 3 rational basis. First, NYCHA specilically prohibits family members who rcmain aftcr a tenancy has been terminated from obtaining remaining-faiii i ly-member status. Petitioiicrs, therefore, do not qualify as remainingfBinily-n?embei-s under NYCHA s policy becaiisc NYCHA terminated Jones s teriancy on clefiiult for notidesireability and breach of NYCHA rules and regulations priur to Iier death, Morcovetl , NYCHA rules require Jones to obtain writtell peimission from thc developmeiit ilianagel- to permanently add Petitioners to her ho~isehold composition. Joiies never submitted such a recliiest a i d management never grantcd I elitioiiers permission lo rejoin Jones s ho~rseholcl.F~rther, NYCkIA policy I-quires Petitioner:, to be othcrwise eligible for public housing to succeed Jones s 1easc as 1-ei1-1ai I 1i t I g- l ami I y - me m I-, e r s . Ne i 1 docs 11 () 1 cl 11II i f y a s a re 111ai n i n g- fnni i 1y; iiiembcr, dire t o his five misdemeanor convictinns in the past ten ycars. Wt-iereli)rc,it is hereby, ADJLJIIGEL3 that this petition is denied and the proceeding is dismissed. 3 [* 5] UNFILED JUDGMENT This judgment has not been entered by the County cf F l3 k atid notice of entry cannot be served based hereon. TO obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Oesk (Room 1410). 4

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