Matter of Luna v New York City Hous. Auth.

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Matter of Luna v New York City Hous. Auth. 2012 NY Slip Op 32956(U) December 13, 2012 Sup Ct, New York County Docket Number: 401279/2012 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. SCANNEDON I211712012 [* 1] I . CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... 3. CHECK IF APPROPRIATE: MOTION IS: ................................................ a CASE DISPOSED U NON-FINAL DISPOSITION 0GRANTED flDENIED 0GRANTED IN PART nOTHER 0SETTLE ORDER SUBMIT ORDER 0DO NOT POST FIDUCIARY APPOINTMENT [-IREFERENCE . . [* 2] SUPMME COURT OF THE STAT COIJNTY OF NEW YO=: PART In the Matter of the Application of Nelson Luna, Petitioner, DECISION, ORDER ANI) JUIWMENT -rigaiiist- Present: I ION. ARLENE P. BLUTH New York City Housing Authority, Respondent. It is ORDERED and AIllIJLXEL) that this Article 78 petition is dcnied and the procccdirig i s dismissed. Petitioner, who is self- rcpresented, commenced this Articlc 78 proceeding challenging rcspondent New York City 1 lousing Authority s (NYCI 1A) Dctcrininatjon of Status dated February 14, 201 2 w1iicIi upheld the hearing o k e r s decision to deny pctitioncr s remaining f h i l y inernher claim to apartineiit #9C at 709 I;DK Drive in Manhattan. Pctitioizer s mother, Einelinda Cruz, was thc tenant of record ofthe subject apartment until her death on August 7, 2009. NYCHA opposes the pctition. Rack grou1id Pctitioiier was an original nieinber ofthe houschold, but he moved out in 1999. See cxli . I to answer, I cnant Data Surmiary. On the annual income aIfidavits that Ms. Cruz subinittcd from 2002 through 2009, she listed herself as lhe sole occupant of the apartment. On FcbruLuy 13, 2009, Ms. Crux submilted a temporary permission request for a family meiiiberladditional person (petitioner) to live with her; petitioner signed that lorm and listcd his address as 2333 Webster Avenue, apt 5D in the Bronx. (cxh L). Apparently NYCHA took no action with regard to this Page 1 of 4 [* 3] request. Ms. Cruz died on August 7, 2009, approximately six months later., H & A liearing was Iicld on November 22, 201 1 and January 27, 2012 before a hcaring officer, who heard testiniony from pctitioiicr and NYCHA s Kcsidelit Serviccs Associate Nilza Ilevcrson. I hehearing officer also revicwcd various documents which werc admitted into evidence at the hcaring. I n her findings and conclusioiis, the hearing officer found that considering t1x evidence in the light most favorable to pctitioncr, even if thc submitted leiiiporary permission request had been apennancnt pcriiiissioii rcqucst, and even if it had been approved by iiianagcinent on thc day it was subiiiittcd (February 13, 2009), pctitioner still would not hrtvc been entitled to remaining family member status. Slic specifically found that pctitioner failed to make thc iiccessary showing that lie lived in the subject apartment with his mother for one year aftcr becoming an authorized occupant. Basccl on the evidence, the hearing officer dcnicd petitioncr s grievancc. Article 78 Standard Thc Lj]udicial review of an administrative determination is coiifincd to tlie facts and record adduccd before tlic age~icy . ( M d l c r of Ywhough 17 France, 95 NY2d 342, 347 I20001, quoting h h f f e rof Fmclli 1) NLW Yurk City ( onciliation diApp1al.v Bourd, 90 AD2d 756 [ 1 st Dept 19821). I liereviewing court may not substitute its judgment for that of the agcncy s dctermiiiation but must decidc if the agency s decision is supportcd on any rcasonable basis. (hhller ofC, luncy-y-C ullenStorngr C o. v Board ofEleclions of the L ity o f N e w York, 98 AD2d 635, 636 [ 1st Dept 19831). Once tlie court finds that a rational basis exists for tlie agency s Page 2 of 4 [* 4] determination, thcn thc court s review is ended. (Mdler of Sz lrllivunCounty Hurness Rircing As,vociu/ion,Inc. v Glusser, 30 NY2d 269, 277-278 [1972]). The court may only declare an agency s detcrniination arbitrary and capricious if [lie court finds that there is no rational basis lor the agency s determination. (Mu//erof Pel1 v Board of fiducution, 34 NY2d 222, 23 1 119741). Gaining succession as a remaining fiunily ineinber requircs an occupant to (1) move lawfully into the apartiiicnt and (2) qualify as a specified relative of the teiiaiit of rccord and (3) rcinain continuously in thc apartiiiciit for at least one year iiiimcdiatcly before the date thc tenant of record vacates the apartmcnt or dies and (4) be otherwise eligiblc for public housing i n accordance with NYCI IA s rules and regulations. See NYC HA Occupancy and Remaining Family Member I olicy Revisions General Memorandum (GM) 3692 Section IV (b), as revised and amcridcd July I 1 2003 (ex11 A). At issue here arc requirements (1)obtaining the permission, and (3) liviiig in tlic apartment for one ycar afler getting the permission. llie requireinent that permission is iieccssary is cnforceable. See Aponlc v NYL HA, 48 AD3d 229, 8 5 0 NYS2d 427 [ 1 st Dcpt 2008 I The denial of pctitioner s [remaining fitmily member] grievance on the basis that written pcrrmission had not bccn obtained for their return to the apartiiient is neilher arbitrary nor capricious. See ufso NYCHA v NLIwmun, 39 AD3d 759 (1 nept 2007); Hzitcherson v NY(3HA, 1 c3 AD3d 246 (1 Ucpt 2005) (denied reinairiiiig family menibcr status because written permission to iiiovc in was not obtained). That one-year rcquirenieiit has also been upheld (we Torres v NYUIA, 40 AD3d 328, 330 llst Dcpt 20071 holding that when petitioncr seeking to succeed to tciiaiit of. record s lease had not coinplicd with the one ycar requit-cmcnt, that there [was1 no basis whatsoever for holding the Page 3 of 4 [* 5] 11 st Dept 20071 holding that when petitioner seeking to succeed to tenant of record s lease had not complied with the one year requirement, that there [was] no basis whatsoever for holding tlic agency decision to be arbitrary and capricious ). I Icrc, petitioner claims that he moved back into thc apartment at his mother s request in 2007; if truc, he was an unauthorized occupant. He asserts that the one-year requirement should be waivcd bccause his mother s lailing health preventcd licr from filling out the proper form (tcmporasy vs. permancnt) (Pctition, para. 3). However, the hearing officer indicatcd jii her dccision that this would not haw made a difference because petitioner did not meet the requircmcnt of one year of authorized occupancy. To the extent that petitioner states that this aparhicnt lias been his home since lie was a baby, or that his mother told him that lie bad becii addcd to the leasc, or that 11c wants this apartment as a home for himself a i d his two childrcn, this Court lacks the iiiithority to cmsidcr mitigating circurnstaiices or potential hardship as a basis for ann~illiiig NYC I IA s deterniinatioii (SL LJ (hzmun v NYL HA, 85 AD3d 5 14, 925 NYS2d 59 [lst . Ikpt 201 11). l hcrefore, NYCHA s determination denying petitioner rcinaining f mily meiiibcr status was rational, and not irsbitrary or capricious. Accordingly, it is OIWUFED aiid ADJTJ1)C;I~J.)that this Article 78 petilion is denied and the proceeding is dismissed. This is thc Decision, Order and Judgiiicnt of the Court. A 13 Dated: December 20 I 2 Ncw York, New York 141B).

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