Matter of Price v New York City Hous. Auth.

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Matter of Price v New York City Hous. Auth. 2012 NY Slip Op 32680(U) October 19, 2012 Sup Ct, NY County Docket Number: 400970/12 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. [* 1] SCANNED ON I012412012 SUPREME COURT OF HON. ARLENE )a. BLU PRESENT: Justice , ~ 1 I - . Index Number, 400970/2012 PRICE, VINCENT INDEX NO. vs. NYC HOUSING AUTHORITY SEQUENCE NUMBER : 001 MOTION DATE MOTION SEQ. NO. ARTICLE78 / Ito l x w e r e read on this motion to/for , Notice of er to Show Cause -Affidavits Answering Affidavits - Exhibits - Exhibits INo(s). 2 , I Ws). Replying Affidavits Upon the foregoing papers, it is ordered that this 4ENT This judgrnen and notice of entry cantiol be servedby thc County Clerk based hereon. To obtain entry, courrsel or authorized representative must appear in person at [he Judgment Clerk s Desk (Room 11) 48, 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: .......................... ................................................ 0 NON-FINAL DISPOSITION CASE DISPOSED E] DENIED c SETTLE ORDER ] 0DO NOT POST nGRANTED IN PART OTHER SUBMIT ORDER u FIDUCIARY APPOINTMENT REFERENCE [* 2] SUI IIEME COIJRT OF THK STATE OF NY COUNTY OF NEW YORK: PART 4 In the Mattcr o f thc Application of Vincent Price, Petitioner, Indcx No.: 400970/12 DECISION, O W E R AND ,JUDGMENT -crgninstNew York City Housing Authority, I resetit: HON. ARLENE P. BLTJTH Resport dent. . . It is ORnGRED and ADJUJXXJI that this Article 78 petition i s denied and thc procccdirig is disiiiisscd. Petitioner commenced this Article 78 proceeding challenging respondent New York City Housing Authority s (NYCHA) r)ctcrmiriatioii ol: Status dated February 22, 2013 upholding the hearing s officer s February 9, 20 12 decision which denied pctitioncr s claini to Iicmaining Family Mciiibcr status to apartnicnt 1 1 K at 2971 Eighth Aveniie in Manhattan. Petitioner s rnothcr, Rrcnda J.,uke, was the tenant of record of the subject apartment until her death oii April 4, 2009. N Y C I IA opposcs the petition. A hearing was held on 9/2/1 I, 10/18/11, 12/6/1I and 2/2/12 before a lieariiig officer who heard testimony I roni pelitioncr, his sister and NYCHA s Resident Scrviccs Associate, Djmc M~iiiroe. T elitioiicr lcstificd that lie had lived in apartnicnt 1 1K since 2005. The hearing officcr reviewed various documcnts which were admitted into evidcncc. l hc documents showed that in 1974, Ms. Luke iiiovcd into apt, 4-8H at the subject building, 297 I Eighlli A V ~ I ~ with, licr scvcn childrcii, one of whom was petitioner. I n 1;ebruary 1993, Ms. LK L,&e nioved lo a smallcl- apartmcnt with hcr son Anthony (not pctitioner). I cnyears after that, in 2003, Ms. Luke moved to the suh.jcct one-bcdroom apartment, 1 I I<, as thc solc occupant. Page 1 of 4 [* 3] NYC l IA also subtuittcd Ms. 1,ulce smost recent Af fidavit oLIncome dated March 4, 2009 whcrcjn shc stated that she was the only persoti living in the apartment. Ms. Munroe testiiicd that thc folder for apt. 1 I K did not contain any request from Ms. LLI~W. pctitioner bc addcd to the that lease, or any writtcn pcnnission allowing petitioner to join his mother s household. Jhsed on the ibrcgoing, Ilic henring officer found that pctitioner, who stated thal he has resided in the apartment since 2005, did not prove that he and his inotlicr cver submitted a letter or note requesling that lie be adcled to the household, or that such written permission was grantcd. Based on thc evidence submitted, thc hcarjng off-lccr dctcrrniiicd that pctjtioncl- is not a rcrnaining fanlily mcmbcr as dcfincd by NYC l IA regulations. In support o ¬ his petition (para. 3), petitioner asserts that he has paid r ~ t ~on tiiiic cvcry t ruonth, has attcndcd cvmy court date and has supplicd cvcrytliing rcqucstcd. Staiidard olRcview The ~ludicial review of an administrative determination is conlined to the liicts and record adduced beibre the agcticy . ( M d t r r of Yarhough v Frmm), 95 NY2d 342, 147 [ZOOO], quoting Mutlcr oJI{ uneLliv Now York C ily C onr.ilicrlion & App~cxl~li o w d , 90 hU2d 756 [ 1s t B Dept 19821). The reviewing court may not substitutc its judgment f o r that of the agency's determination hit iiiList dccidc if tlic agcricy s dccision is supported 011any reasonable basis. (Mullel. oj C- lamy-C iillcnStorugc Co. v Romd oj Llerlions of lhc C, ily of New York, 98 AD2d 635, 636 [lst Dep1 19831). Oncc tlic court finds that n rational basis exists for tlic agency s dctcl-miiialion, then the cowt F rcvicw is cnded. (h4li/lcr of Sirllivaiz C oiinty ljirr-necs Rirr*ing Associntion, lnc. v G I 1 L T, 30 NY2d 269, 277-278 11972]). The court may only dcclarc a n Page 2 of 4 [* 4] agency s dctcrminatiorl arbitrary m d capricious if the court finds that there is no rational basis I or thc agcncy s dctcrmination. (Mutter of / ~ /vl Howd ofh dwu/iou,34 NY2d 222,23 1 [1974]). Gaining succession as a remaining f atnily member requires an occupant to (1) move lawfilllyl into tbc apartment and (2j qualify as a spccificd rclative of tlic tenant of rccord and (3) remain contjuuously i 11 the apartment for at Icast UJIC ycar iinnicdiatcly before the date the tenant of rccord vacates the apartment or dies and (4) bc othcrwise eligible for public housing in accordarice wilh NYCHA s rules and regulations. See NYCHA Occupancy and Remaining Family Mcmbcr Policy Revisions Gcncral Mcinorandum (GM) 3692 Scction IV (b), as revised and arnciided July 11, 2003. At issue liere are reqitirernents (1) - obtaining thc pcrmjwion - and (3) - living in the apartiiiciit for onc ycar after gcttiiig the pcnnissioii. The requirement tliat pcrniissioii is necessary is enforceable. See Aponte v NJ*C- HA,48 AD3d 229, 850 NYS2d 427 [ I st Dept 20081 The denial ofpetitioncr s rreinaining f amily nicnihcrl gricvancc on the basis hat written permission had not been obtained lor [heir return to the apartment is iieitlier arbitrary nor capricioiis. See also NYC HA 1 1 N w ~ t z m 39 A113d 759 ( 1 , Dcpt 2007); Hirtclzcrson 11 NY C IIA, 19 AD3d 246 (1 Dept. 2005) (denied reimainiiig hniily nicmbcr status bccausc written pcrinission to move in was not obtained) I hatonc-year rcquireinent has also been upheld (see Torres 11 N I T H A , 40 A1)3d 328, 330 1.1 st Dept 20071 holding that wlien petitioner sccltiiig to succeed to tenant of recurd s lease 1. Ihc occupant niwes in lawhlly i I h e or she: ( I ) was a nicrnbcr oftlie tenant s hmily when the tenant moved in and nevcr inovcd out or (2) becomes a permanent nmnbcr of thc tenant s family arier moving in (or after moving back in) as long as the tenant o f record seeks and receives NYC HA s writtcn approval or (3) is born or legally adoptcd into tlic tcnlmt s family a i d tlicrcaftcr 1-emajnsin continuous occupancy up to and including the time the tenant of rccord moves or dies. (See NYCYTA Management Manual, ch IV, sub IV, sectjon (J)(l). Page 3 of 4 [* 5] had not complicd with tlic otic year requirement, that there [was] no basis whatsoever for holding the agcncy decision to bc arbitrary and capricious. ). Here, it is undisputed that Ms. J,uke aevcr rcccived N Y C I IA s written permission for petitioner to permanently reside in tlic aparttncnt. Moreovcr, because Ms. 1,ulte represented that she was the sole occupant of the apartment in 2008 and 2009, petitioncr has not dcinoiistrated York that he met the one year residency requirement. ,%e Wtismun II N ~ M I C i/y H0u.s. Auth., 9 I hD3d 543,937 NYS2d 189 (1 Dept 2012). Finally, petitioner s assertion that he completed an alflclavit of iricotiic dated 3/30/1 1 , in wliich he lisled himself as living in the subject apartment (annexed to petition as exli. C), was not raised below and therefore cannot be considered by this Court. Even if. this Court were to consider il,that does not change the [act that petitioner s mother never requested that hc bc addcd as an occupant atid that NYCXR iicvcr grantcd such permission. Hascd c m tlic forcgojng, the licaring officer s detcnnination denying pctitioticr remaining family member status was rational, and not arbitrary or capricious. Accordingly, it is OIIIlKl<ED and ADJIJDGED that this Article 78 petition is denied arid the proceeding is disiiiissed. All stays are vztcated. I his is the Decision, Ordcr atid .ludgmcnt of the Coiirt. 1)ated: October 19,201 2 Ncw York, New York Page 4 of 4

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