Matter of Doles v New York City Hous. Auth.

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Matter of Doles v New York City Hous. Auth. 2012 NY Slip Op 32998(U) December 14, 2012 Supreme Court, New York County Docket Number: 401380/2012 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 1211912012 [* 1] [* 2] SUPREME COURT OF THE STATE OF N U COUNTY OF NEW YORK: PART 4 In thc Matter of thc Application of Index No.: 401380/12 Malcolm Doles, Petitioner, DECISION, ORDER -against- ANI) JUDGMENT New York City Housing Authority, Respondent. Present: HON. ARLENE P. BLUTH It is (_)RJ_311KHl)atid AI).IIJDGEII that this Article 78 petition is denied and the proceeding is dismissed. Pctitioncr, who is sclf represented, coiiimenced this Article 78 proceeding challenging respondent New York City Housing Authority s (NYCI-IA) dctcrmination dated Fcbruary 29, 2012 wlijcli adopted I Icaring Officcr I oniicic-Ilines s February 13, 2012 decision made after ; 1 hearing. In that decision, the hearing o f k e r denied petitioner s remaining family incinber claim to apartment 19C at 55 LaSalle Strcct in Manhattan. Pctitioner s grandlnlothcr, llli7abcth Ilolcs ( Elizabetli ), was the tenant of record of the sub.jecl apartment until her death o n June 8, 2010. Additionally, the hearing officer noted that while petitioner sought to assert a remaining I amily member claim lbr his niece Shnsiiia Padron, a minor, pctitioiicr was not her lcgal guardian; as such, tlic hcaring officcr did riot pcriiiit petitioncr to pursue a gricvaricc on her hchalf. NYVI IA cq-q~oscs petition. the l he Hearing On March 30, 201 0 Elizabeth submitted a Permanent Pcrriiission Kcqucst form to add 1 The hearing officer permitted Sharina to testify at the hearing without prejudice to her independent claim. Sharina and her mother (petitioner s sister) were former members of Elizabeth s household. Elizabeth removed them from the household by letter dated March 25, 2002, claiming that they had not contributed their share of the rent (exh V to Answer). Page 1 of 4 [* 3] pctitioiier to her household, which request rnanagcrncnt did not approve o r disapprove. Elizabeth died approxiniatcly two months later, on Junc 8, 21) According to Elizabeth s affidavits or IO. income introduced at tlic hcaring, sho was the sole remaining occupant the sub.ject apartxucnt at tlic time of her deal11 (cxh 1 to Answer). 1 Petitioner testificd tliat he rnoved into his grandmother s apartment in 2006,but on crossexamination hc admittcd tliat he was (as of the date ofthe hearing, January 18, 2012) still listed as ~ a mcmbcr of his mother, Michclle I>oles s, hoiiseh(-,ld--apartment145 o l the sub.icct bui Iding. In her dccision denying petitioner s grievance, the hearing officer noted that niiuiagemcnt iicvcr granted Elizabeth s rcquest for petilioner to pcrlnnmeiitly reside with hcr. She found that even if the request had bcen immediately approved, petitioner still would not have met the qualilications of n rcmaining family mcmbcr becanse lie would not have had the requircd onc-yca~ period ol autliorizcd rcsidency. Standard o l Revkw In reviewing an administrative agcixy s deteriminatinn as to whether it is arbitrary and capricious under CPLR Article 78, the test is whether the determination is without sound basis in rcason and ... without rcgard to tlic fiicts (M(illcr ofl ell v H o w d ofLdwnfion, 34 NY2d 222, 1 23 [ I 974 I). Moreover, tlic determination of an admiiiistrativc agency, acting pursuant to its authority and within the o h i t o l its expertise, is cntitled lo defcrence, and cvcn i l diflerent of conclusions could be reached as a res~ilt conflicting evidcnce, a court may not substitutc its j udgmcnt for that of tlic agency when the agency s dctermiiiation is supportccl by the record ( M d t c r rifPnr.lncrLship LP CY. tlldg. hrlgi. C o , Im. v Stltaic if Ncw 1 i)r.k lliv. qf I h s . & 92 Page2of 4 [* 4] C- omnzunityHer-2ewcr1,46 A133d 425, 429 [ 1 st Dept 20071, u r d 11 NY3d 859 [200X]). ~ I Gaining succession as a remaining fkniily incmhcr requires an occupant to (1) move lawfully into the apartment and ( )quaIiQ as a speciiied relative oftlie tenant ofrccord and (3) 2 ~ rcmaiti continuously in tlic apartment lor at least one year jininedialely before thc date the tenant ofrecord vacates lhe apartment or dies and (4) be otherwise eligible for public housing in accordance wilh NYCIIA s rules and regulations. See NYCHA Occupancy and Remaining Family Member Policy Revisions Gcncral Meniorandum (GM) 3692 Section IV (b), as rcviscd and anicndcd July 1 I , 2003 (exh A lo Answer). llic rcquireiiicnt that permission is necessary is enforceable. See A p n f e v NYC IIA, 48 AD3d 229, 8SO NYS2d 427 11 st I k p t ZOOS] The denial of petitioner s [remaining family member] grievancc on the basis that written permission l i d not been obtained lor their rctuni to the apartment is iicither arbitrary nor capricious. Sce crZ,sn NYCHA v Ncwnzm, 39 A1)3d 759 (1 ncpt 2007); Hzitchci~sun NYCIfA, 19 AD3d 246 (I Dept. 2005) (denied remaining family v nieiiibcr status because written permission to iiiovc in was not obtained). Significantly, in support of the petition, petitioiicr has iiol asserted that the decision bclow was arbitrary arid capricious, or an abuse of discretion. Inslead, ignoring Ihe h c t that he is an authorized occupant in another apartmen1 (his mother s) in the same building, petitioncr says thal NYC I-IA s determination should be reversed hccause he aiid his njcce have no othcr home and 110 2. [he occupant moves in lawfully i f h e o r shc: (1) was a member o l the tenant s faillily when the tenant iiioved in and never moved out or (2) becoiiics a permanent member of thc tenant s family aftcr moving in (or nftcr moving back in) as long as the terimt of w o r d seeks atid receives N YCHA s writtcn approval or (3) is born or lcgally adopled into the tetianl s family atid thcrcafter reiiiaiiis in continuous occupancy up to and including the time tlic tcnmt 01 record nioves or dies. (See NYCHA Managcmenl M n a ,ch IV, sub TV, scction (J)( I ) . aul 7 Page 3 of 4 [* 5] othcr fainily (pet., para. 3). This assci-tion does not change the fact that lie does not qualiii as an I authorized ocwpaiit who livcd continuously in thc apartment for at least one year inimcdiatcly beforc his grandmother s dcatli. Additionally, this Court lacks the txitliority to considcr mitigating circumstances or potential hardship as a basis for ,mulling NYCHA s determination (see Guzrnan 17 NYC JIA, 8 5 A113d 5 14, 925 NYS2d 59 [ I st 13cpt 201 11). Thererore, lo thc cxtcnt that petitioner asserts that his situation constitutes mitigating circumstances or potcntjal hardship, that claim is denied on this basis as wcll. NYCHA s decision to deny pelitioiicr rcrnaining family member gricvancc liad a rational basis; the cvideiice shows that petitjoiicr did not become an autliorized occupant of Elizabeth s apartment prior to her death in Junc 2010, and even if the request to add him as an auttiori7cd occupant had 17ccii proniptly gmitcd, hc still woitld not have met the one-year resiciciicy requirement. SLY l crez v New York City Hou,s Aulh., -AD3d- ,-NYS2cl-, 2012 NY Slip Op 07 199 ( I llcpt, October 25, 20 I 2. ) Accordingly, it i s ORDERED and AIIJUDGED that the petition is denied and the prncccding is dismissed. Any stays issued by this Court arc hcreby vacated. This is the L)ccisjm, Order and Judgriicnt o f the Courl. r\ Dated: ~cccmber\L\, 12 20 L New York, New York I HON. ARJLENE Page 4 of 4 1 . HLUTH,JSC

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