Matter of Ruiz v New York City Hous. Auth.

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Matter of Ruiz v New York City Hous. Auth. 2012 NY Slip Op 32957(U) December 10, 2012 Sup Ct, New York County Docket Number: 4001445/12 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. SCANNEDON I211712012 [* 1] .~ I I Index Number : 401445/2012 RUIZ, MICHAEL NYC HOUSING AUTHORITY SEQUENCE NUMBER : 001 ARTICLE 78 Replying Affidavits 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION IS: NTED DDENlED OG ........................................... 01 POST 0FIDUCIARY DINPART UOT [* 2] SUPREME COURT OF THE STATE OF N Y COUNTY OF NEW YORK: PART 4 In the Matter of thc Application of Michael Ruiz and Jorge Kuiz, Petitioners, -uguinst- Index No,: 4001445/12 DECTSTON, ORDER AND JUDGMENT New Yorlc City Housing Authority, Kcspondent. Present: HON. AlUENE P. BLUTH It i s ORDERED a i d ADJUDGED that this Article 78 petition is denied and the proceeding is dismissed. Peti tioners, who are self represented, commenced this Articlc 78 procccding challenging rcspondcnt New Yorlc City Housing Authority s (NYCI ]A) dctcrinination dated May 30,2012 which adoptcd Hearing Officer Joan Pannell s May 2, 2012 decision niadc after a hearing. In that decision, the hcaring ofticer denied pctilioncrs remaining family illember claim to apartment 1SC at 45 Rutgers Street in Manhattan. Petitioncrs mothcr, Natividad Ruiz, was the tenant of record of thc subject apartment until her death on Junc 28, 201 I . NYCHA opposes the petition. During hcr tenancy, Ms. Ruik resided in the subject apartment with several family members until those individuals lcft thc houseliold and she was the sole rcmaining occupant. It is undisputed that Jorge had oncc been a mcnibcr of her household, but that IIC moved out in July 1999 (see Tenant Data Summary, cxh I I to ,answer). On the affidavits that Ms. Ruiz submitted between 2009 and her death in 201 1, she did not list cithcr Michael or Jorgc as occupants in her apartment; on the last affidavit that she submitted, Ms. liuiz stated that she was thc sole occupant of the apartment (exh D). On April 9, 201 1 Ms. Ruiz submitted a Pernianent Pcrmission Request form to add Page Iof 5 [* 3] pctitioncrs to her household; this requcst was disapproved by Managcrncnt by letter dated June 23, 201 1 on the grounds that both individuals failed the criminal background check (cxh J). Ms. Riiiz died five days later, on .lune 28, 201 1 . 111July and August 201 1 thc Propcrty Managcr met with pctitioners and concluded that neither of them was an authorized inember of Ms. Ruiz s household , and as such they were not entitled to a lease. Thereafier, petitioners met with the Borough Manager who upheld the Property Manager s decision. On the first two hearing dates in February and March 2012, petitioners asked for adjoirrnments lor additional timc to find attoriicys, and thcir applications were granted. The , hearing was held on April 6, 2012. NYCHA counterclaimed that Jorge is ineligible for public housing until 20 16 because of several criminal convictions, and Michael is ineligible until July 20 I2 because of a robbery conviction. In her decision, the hearing officer found that management denied Ms. 1Cuiz s rcqucst for her sons to permanently reside with her, and cvcn if thc rcqucsts had been promptly approved [petitioners] would nevertheless bc unable to show the required onc-year period of authorized residence, and lieiice arc not residual tenants as defincd by NYCHA s regulations . Finally, the hearing officer noted that she nccd not and did not need to addrcss NYCHA s claim that pctitioncrs wcrc currently ineligible f or public housing bccause of their criminal histories. In reviewing an adrninistrativc agency s determination as to wlictlicr it is arbitrLuyand capricious under CPLR Articlc 78, the test is whether the determination is without sound basis in reason and ... witliout rcgard to the facts (Matter qf PelL v Rocrrd oj Educntinn, 34 NY2d 222, 23 1 119741). Morcovcr, the determination of an administrative agency, acting pursuant to its Page 2 of 5 [* 4] authority aiid within the orbit of its expertise, is entitled to deference, <andeven ildifkrent conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agcncy s deternillation is supported by thc rccord (Matter of I urlnership 92 LP & Rldg. Mg/. C o., Inc. v Stale of New York Div. qf Ilous. & (- ommunityRenewal, 46 AD3d 425, 429 [ 1 st Dept 20071, u r d 1 1 NY3d 859 LZOOS]j. Gaiiiiiig succession as a rcinaining family meniber requires an occupant to (1) move lawfully into the apartment and (2) qualify as a specifkd relative of-the tenant of rccord aiid (3) remain continuously in the apartment lor at least one year immediately bcforc the date the tenant ofrecord vacatcs thc apartincnt or dics and (4) be otlicrwisc cligible for public housing in accordance with NYCIIA s rulcs and regulations. See NYCIIA Occupancy and Remaining Family Member Policy Rcvisions Gciicral Mcinoraiidum (GM) 3692 Section IV (b), as revised <andarnended July I 1 , 2003 (exh A to Answer). Aponle v NYCHA, 48 I hcrcquirement that permission is necessary is enhrceable. SCC AD3d 229, 850 NYS2d 427 [lst Ikpt 20081 The denial of petitioner s [rcniaining family member] grievancc on thc basis that written permission had not been obtaincd for their return to the apartment is iicithcr arbitrary nor capricious. ,See ulLso NYCHA v Newman, 39 AD3d 759 (1 Dept 2007); Hulchcrsun v NK HA, 19 AD3d 246 (1 I Dcpt. 2005) (denied remaining family member status bccausc written permission to move in was riot obtaincd). Here, petitioners wcrc The occupant moves in lawfully if he o r she: ( I ) was a member of the tcnant s family when thc tenant moved in and never movcd out or (2) becomes a perinancnt member of the tcnant s family after moving in (or after rnoving back in) as long as the tenant of rccord seeks and receives NYCl IA s written approval or (3) is born or lcgally adopted into the tenant s family and thereaftcr remains in continuous occupancy up to and iiicliiding the time the tenant of rccord moves or dics. (See NYCHA Mariagemelit Manual, cli IV, sub IV, scction (Jj(1 j. Page 3 of 5 [* 5] expressly denied permission to join thcir mother s household in .lune 201 1; as such, thcy knew that they were unauthorized occupants. Significantly, i n support of thcir petition, petitioners have not asserted that the decision below was arbitrary and capricious, or an abuse of discrction. Instead, Michael Ruiz says that NYC IIA s determination should be reversed because he d k e d in foster care, he was on thc original Icasc and Iias succession rights, he has lived in the apartment continuously since Noveinbcr 201 0, be suffers from mental illness and will become homeless without this apartmcnt (pct., para. 3). None of these assertions change the fact that NYCIIA expressly denied his mothcr s request to have him added to thc household in 201 1 , and none ofthese grounds states a basis lor reversing NYCI JA s decision to deny him remaining fimily rneniber status. Finally, this Court lacks the authority to coiisidcr mitigating circumstances or potential hardship as a basis for annulling NYCI-IA s determination (see Guzmun v NYCHA, 85 AD3d 514, 925 NYS2d 59 [ 1st Dept 201 I]). Thereforc, to thc extent that petitioner asserts that his situation constitutes mitigating circunistanccs or potential hardship, that claim is denied on this basis as well. Jorge Ruiz stales that he was born in thc apartnicnt and returned in around October 2009 to live with his niotlier. I Iowever, once-authorized members o f a household who leave the household and subscquciitly return rnust obtain permission l o pcrniaiiently occupy the apartmcnt. See C ollnzo v New York City Hous. Auth., 93 AD3d 475 (1 Dept 2012).2 NYCFlA s dccision to deny petitioners rcmaining family meniber grievance has a rational basis; the evideiicc shows that neither petitioner bccaine an authorized occupant of his mothcr s Hoth brothers admit that thcy h e w management disapproved their mother s request that thcy be added to her household. Page4of 5 [* 6] apartment prior to her death in June 201 1; in fact, NYCHA expressly denied them permission. See Perez v New York City Hous. Auth., -AD3d , NYS2d-, 2012 NY Slip Op 07199 (October 25, 201 2). Mcre unauthorized occupancy, without managcment s written permission, is insiiflicient to confcr tenancy rights in public housing. Accordingly, it is 0KL)EREL) and ADJUDGED that the petition is denied and the procccding is dismissed. Any stays issued by this Court are hereby vacated. This is the Decision, Order and Judgment of the Court. Datcd: December 10,2012 New York, New Yorlc HON. ARLENE P. BLUTH, JSC Page 5 of 5

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