Matter of Brown v New York City Hous. Auth.

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Matter of Brown v New York City Hous. Auth. 2012 NY Slip Op 32419(U) September 20, 2012 Supreme Court, New York County Docket Number: 102029/12 Judge: Arlene P. Bluth 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. SCANNED ON 912112012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART Lf Index Number: 102029/2012 BROWN, RAYMOND vs. NYC HOUSING AUTHORITY SEQUENCE NUMBER : 001 INDEX NO. MOTION DATE MOTION SEQ. NO. ARTICLE 78 -- , were read on this motion tolfor The followlng papem, numbered I to to Show Cause Notice o f & h r d e r Answsrlng &t. 7f - Affldavlts - Exhlblta IN o INo(s). IN m . Exhlblts Replying Affldavlts p-ehftb.. ( * L ) . L Upon the foregoing paperg, it is ordered that thls metton Is UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannot be served based h@rcs6n. TO &&in entry. counsel or authorized reprmmtatlve mud in p s c m a the Judgment Clerk's Desk (Room t l4lBy I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: .............. MOTION ................................................ pd I : 17 S CASE DISPOSED GRANTED 0DENIED 0SETTLE ORDER UDO NOT POST NON-FINAL DISPOSITION GRANTED IN PART 0OTHER 0SUBMIT ORDER UFIDUCIARY APPOINTMENT 0REFERENCE [* 2] SIJI IIIZMII: COUI< I OF I IIK STATE OF NY CXlIJNTY OF NEW YORK: PART 4 In the Matter of the Applicution of Ray in orid I row 11, 3 Petitioner, lridcx No.: 102029/12 DECJSION, ORDER ANI) ,JUDGMENT -ciguitisi- Prcucnt: J-ION. A.RLENE P. BLlJTIJ Ncw York City Iiousing Authority, Respondent. IJpon Ihe h e g o i n g papers, it is OKI)I:I<EL) and ADJUDGED that this Arlicle 78 pelition is denied and the proceeding is clismisscd. Pctitioncr, who was rcl~rcsenledby couiisel at the adiiiinistralive hearing, but is rcprcscntitig Iii~iisclf hcrc, commenced this Arlicle 78 proceeding challcnging resporidenl New York City Housing Authority s (NYCHA) Determination of Status dated December 2 1, 201 1 which uplicld thc hcaring officer s decision to deiiy pctitioiicr s remaining family meinbcr claini lo apartment 1171 al 466 llast 1 Street in Manhallan. Petitioner s motlicr, Sandra Brown, was 41 Sandra I3r-owii s n d h e r ~ ~ ~ s b a n t l tenants of rccord of tlic subjecl aparlment; when Jicr were husband dicd in 2003, Ms. Browii became the sole tenant of record. While petitioner arid his sistcr. WOK c)ncc authorized occupants ol the apartment, petitioner moved out in August of 1986. ~(; CJP esh t;, to answer7Teiiaiit Data Suiiiimaiy and cxh F, pclitioner s nolarized letter datcd 8/19/96 stating that lic was moving to anotlier addrcss. Page 1 of 5 [* 3] On the annual income aflidavits that Ms. LJrowi) subinittcd iii 2008 and 2009, she listcd Iicrsclf as the sole occupant ofthe apartriicnt; oii tlic 2008 af-Xdavit petitioner was listcd as hcr emergency acldress, residing at ? 165 Decatur Aveii~ie (exh G). On a fbrm datcd March 20, 2010, Ms. Brown requested that pctitioiicr be permilled to join hcr Iioiischold; petitioner s address at that tiiiie was listcd as 3 I65 Ilecatur Avenue, Bronx, N Y . I wo days later, oil March 23,201 0, Ms. 13rown dicd w11iIc she was visiting relatives in Florida. On March 29, 201 0, tlic NYC I IA s Property Managcr, who had no knowledge that Ms. I3rowm had died, granled the request. 111April 2010, pelitioner notified NYC I IA that his rnothcr had died. A hcaring was Iicld 012 Novciiibcr 2, 201 1 bcforc a hearing officer, who heard testimony l h m petitioner, who was rcpresented by counsel, a i d from NYCHA. The hcariiig officcr also reviewed various documents which were admilled into evidence at the hearing. In her hidings aiid conclusions, the hearing ol licer found that NYCHA did not grant pctitioncr. permission to be added to the household until after his ~mtlicr. died when thcrc was no longer a tenant houschold to which [pclilioner] could be addcd . I he hearing ollicer specilically Iouiid that NYC I IA did not issue permission for pctitioncr to rcsidc in the apai-tmerit uiilil alier his motlicr dicd, and that petitioner iiiilcd to make tlic iicccssary slinwiiig that hc livcd in the apai-tnicnt will1 h i s motlicr for oiic year nficr bccoming an a u t h ~ ~ i 7 c d occupant. Hased or1 thc evideiicc, thc hearing officcr dctclmined that pelilioner was riot a remaining llimily nieiiiber as ddincd hy N YC HA rcgulalions. Page 2 of 5 [* 4] Arliclt: 78 Standard Thc [j]udicial rcvicw of an administrative delermiiiation is c o n h e d to tlic facts and rccnrcl adduccd b c h r e tlie agency , (MittLIr of YurhotigIi v Frrmco, 95 NY2d 342, 347 I20001, quoting hhcrllr~r F m o l / i 1) New York C i/y C oncilialion & Ap~ieals of Board, 90 AD2d 756 1I st I k p t 1982J). l he reviewing court may not substitutc its judgincnt Ihr that ol the agency s deleriiiinalioii b u t must decide if the agency s decision is supported oii any reasonable basis. (Mdlcr cjf C:. lctri~y-C::ullrn ,Storuge C o. v Board qf Blcctions of thc C. ily of N e w York, 98 AD2d 6 3 5 , 636 [lst Depl 1983J). Once the court iinds that a ratioiial basis exists for the agency s determination, thcn thc court s rcview is ended. (Muller. of ,Pirllivuiz C oun!y ~ILEI+ML S.F Hnciqq A.rsoc.irxtion, lnc 17 C;ln.s.s~~r,NY2d 269, 277-278[ 19721). The court may orily declare an 30 agency s delcrriiinatiori arbitrary and capricious if tlie court Grids that there is 110 rational basis for tlic agciicy s determination. (Muttcr of I d1 v Iloard o f Education, 34 NY2d 222, 23 1 [ 19741). Gaining succcssion as a remaining I amily member requires an occupant to (1) iiiovc lawfully into tlic apartmcnt and (2) qualiFy as a specified relative ofthe tenan[ oi record and (3) remain continuously in the atpartmciit for at least one year iriimediately beCorc [lie date the teiiaiit ol record vacatcs tlie apartment or dies arid (4) be olherwise eligible lor public hoirsiiig in ~ c c o r d ; i i i ~ c NYC I 1A s rulcs a i d regulations. Sce NYC HA Occupmcy and Remaining with Family Mcmhcr Policy Revisions Gcncrnl Mcmorandum (GM) 3692 Seclion IV (b), as revised and amcnded July I I , 2003 (exh A). At issuc hcrc arc rcquircimcnts ( 1 ) - obtaining the permission - and (3) - living in thc apartment for one year alter getting the permission. Page 3 of 5 [* 5] The rl-qiiircnicmt that pcrmission is necessary is cnforccablc. See Apon/c I) NZ C HA, 48 AD3d 229, 850 NYS2d 427 II st Dept 20081 l hc denial of petitioner s [remaining faiiiily iiiciiibcr] grievaiicc on the basis that writtcii pcrmission had not been obtained for their return to the apartmenl is neiher arbitrary nor capricious. Sec d s o NI CHA v NL M~Y)ZCI~I, 759 (1 39 AD3d Dept 2007); IIir/chrr.ron 1. NYC IL4, 19 AD3d 246 (1 Dcpt. 2005) (denied remaining hinily iiiciii bcr status bccausc writtcii permission to riiove in was not obtained). That one-year requircmcnt has also been upheld (see 7brrc.s 17 N ~ K I M40 AD3d 328, 330 , [ 1 st Dept 20071 holding that wlicii petitioner seeking to succccd to tenant of record s lease had no[ coniplicd with 11ic oiic year rcquiremenl, lhal there [was] no basis whatsoever for holding h e agciicy decision to be arbitrary and capricious. ). Here, petitioner asserts that wlicii lie rcccivcd a lease in his name and his mother s name, hc thought cvcrything was fine, and iiiovcd his son and daughler into the apartment (Petition, para. 3). I lowovcr, tlicrc is no question that he did not reside in the apartment with his iiiotlicr for onc year aiier having been granted pcrmission. 1 0 thc extent that petitioner is claiming that his mother s sudden death prevented hiin from fulfilljiig thc rcquircd full year ol authorized occiipancy, or that he has does not want to uproot his children, this Couri lacks [he autliorily to consider rnitigaling circLimslances or poleiitial Iiardsfiip as n basis dctcrmination (.SLY h i . annulling N YCHA s G zrzn7an 11 NI CIfA, 85 AD3d 514, 925 NYS2d 59 (1st Dept 301 1). I hcrcforc, N YCI-IA s dcterniination denying petitioner remaining family mcnibcr status was rational, and not arbitrary or capricious. Page 4 of 5 [* 6] Accordingly, il is ORDEREV and ALI.JIJDGED that this Article 78 petilioii is denied the proceediiig i s dismisscd. UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice 01 entry rannot be served based hereon, TO obtain entry, counsel or authorized representative mufit appar in person at the J u d g m l Clerk's Desk (k~l 1418). Page 5 of 5 a1 1d

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