Matter of Goldman v New York City Hous. Auth.

[*1] Matter of Goldman v New York City Hous. Auth. 2007 NY Slip Op 52380(U) [18 Misc 3d 1102(A)] Decided on December 6, 2007 Supreme Court, New York County Bransten, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 6, 2007
Supreme Court, New York County

In the Matter of the Application of Esther Goldman, Petitioner.

against

New York City Housing Authority, Respondent.



115382/06

Eileen Bransten, J.

Petitioner Esther Goldman ("Ms. Goldman") seeks a judgment pursuant to CPLR 7803(3) reversing, annulling, and setting aside the determination of respondent New York City Housing Authority ("NYCHA"), which denied her grievance for an apartment lease as a remaining family member of decedent Helen Erbst ("Ms. Erbst"). NYCHA opposes the petition.

BACKGROUND

On March 14, 2001, NYCHA received a permanent-resident request for Ms. Goldman to live with Ms. Erbst in her apartment located in the public-housing development called The Independent Towers. See, Verified Petition, Ex. E. In the request, Ms. Erbst allegedly wrote

"Esther initially came to live with me to care for myself. This has developed into a wonderful relationship, and I can't get along without her. She is a close family friend and companion."

Id.

At that time, NYCHA had three requirements for obtaining permanent permission for an additional person to join a tenant's household: 1) the tenant of record had to be in current occupancy and in good standing, 2) the proposed additional person must fall within the [*2]definition of "family" (i.e., two or more persons living together related by blood, marriage or adoption, or two or more unrelated persons, regardless of gender, living together as a cohesive household), and 3) that person must otherwise be eligible for public housing. Id., Ex J at 7.

Ms. Erbst died on March 16, 2001, two days after the permanent-resident request was made. On April 9, 2001, NYCHA denied the request, finding that there was no familial relationship between Ms. Erbst and Ms. Goldman. Id., Ex H. Ms. Goldman did not notify NYCHA that Ms. Erbst passed away until several months later on July 2, 2001. See, Verified Answer at 13, ¶ 67.

Ms. Goldman next asked NYCHA whether she could assume Ms. Erbst's tenancy as a remaining family member. At the relevant time, NYCHA's policy for remaining-family-member status required that the applicant was a member of the original tenant family, became a permanent member of the family subsequent to move-in, or was born or legally adopted into the tenant family subsequent to move-in, and thereafter remained in continuous occupancy up to and including the time the tenant of record moves or dies. See, Verified Petition, Ex J at 12. If the applicant was at least 18 years old, satisfied the aforementioned NYCHA definition of family, and had verifiable income, she/he would be offered the lease. See, Verified Answer, Ex 2. Both the Independence Towers' manager and the NYCHA Brooklyn Borough Administrator separately denied Ms. Goldman's request, finding that she and Ms. Erbst did not meet NYCHA's definition of "family." See, Verified Answerat 13, ¶ 68-69.

Ms. Goldman then requested a grievance hearing to review the denial. The hearings took place on September 13, 2005 and November 15, 2005 before an impartial hearing officer ("Hearing Officer"). Ms. Goldman testified that in 1999, when she was 15-years old, she moved into then 77-year-old Ms. Erbst's apartment in order to care and perform daily chores for her. See, September 13, 2005 Transcript at 6, ¶ 21-25; at 7, ¶ 14-22. She also testified both that she exclusively lived with Ms. Erbst from that time on yet during the same period lived in her parent's apartment located next door. Id., at 8, ¶ 4 & 16. A NYCHA housing assistant testified that Ms. Goldman's parents never officially removed her from their family composition, as reported to The Independent Towers. See, November 15, 2006

Transcript at 88, ¶ 13-25. Finally, the Hearing Officer took notice for the record of NYCHA's procedure known as the "death provision", which states

"If during the review period, the tenant who made the request [to add a permanent resident to her/his household] dies. . ., the additional person(s) in the apartment shall be deemed to have lawfully entered the apartment and may commence a Remaining Family Member' Grievance."

Verified Petition, Ex J; see also, September 13, 2005 Transcript at 44, ¶ 6-14.

At the hearing's conclusion, the Hearing Officer invited the parties to submit written [*3]closing statements. In her submission, Ms. Goldman argued that since Ms. Erbst died prior to NYCHA rendering a decision on the application, she should have been deemed a permanent resident. See, Verified Petition, Ex K. Moreover, she argued that a familial relationship was not necessary to permanently add a person to a tenant's household. Id. Finally, she contended that legal custody was not required for a tenant to permanently add a minor child to her/his household. Id. NYCHA argued that the death provision did not automatically vest Ms. Goldman with succession rights; rather, it averred that it simply entitled her to inclusion in the applicant pool for said apartment's lease. See, Verified Answer, Ex 7. Furthermore, it contended that the decision that Ms. Goldman and Ms. Erbst were not a family unit was premised on a fair and reasonable interpretation of the law. Id.

On May 31, 2006, the Hearing Officer rendered his decision in favor of Ms. Goldman, finding that she became a permanent member of Ms. Erbst's household upon the latter's death, and therefore qualified as a remaining-family member. See, Verified Petition, Ex B. He concluded by stating, "This decision will be reviewed by the Members of the Board of the Housing Authority , which review is dispositive as regards [to] the applicable rules." Id.

NYCHA's Board rendered its decision on June 14, 2006 and sent notice to Ms. Goldman simply stating that

"The New York City Housing Authority, after review of the record has determined that the hearing officer's decision was contrary to law in granting remaining-family member rights to a claimant who fails to meet the screening and eligibility requirements. The disposition of the hearing officer is reversed. The new disposition is "Grievance dismissed."

Id., Ex A.

On October 12, 2006, Ms. Goldman commenced this Article 78 proceeding, arguing that NYCHA's administrative determination was arbitrary and capricious because it did not offer a full explanation for its reversal, was not in accordance with applicable due process laws, and failed to afford her the opportunity to present evidence and witnesses during its consideration of the Hearing Officer's decision. See, Verified Petition at 1-2.

On November 9, 2006, NYCHA sent Ms. Goldman a full explanation of its reversal, contending that it was unaware that she did not receive it the previous June. See, Verified Answer at 16, ¶ 78. The Board deduced that there was no conclusive evidence that Ms. Erbst submitted the permanent-resident application before she died. Id., Ex 9. Even if she had, it concluded that Ms. Goldman was nevertheless ineligible to succeed to the lease because she remained in her parents' home and thus did not live continuously in Ms. Erbst's apartment; was still a minor at the time of Ms. Erbst's death; and did not present any evidence of verifiable income. Id.

NYCHA served opposition papers to Ms. Goldman's petition on June 15, 2007. This Court heard oral arguments on July 27, 2007.

DISCUSSION

This Court will first address Ms. Goldman's violation-of-due-process argument. Here, [*4]the fact that Ms. Goldman apparently did not receive NYCHA's reasoning for the reversal until after she filed this petition did not deny her the opportunity to fully present her arguments at every stage of this matter. Indeed, she made said arguments both orally and in writing before the Hearing Officer, and challenged NYCHA's counter-arguments in the same forum. Moreover, the Hearing Officer's decision clearly stated that it was subject to the NYCHA's Board's review and final determination, which comports with the published Grievance policies. She received notice of the reversal less than a month after the Hearing Officer's decision; there was no excessive delay in notification. Furthermore, NYCHA believed in good-faith that Ms. Goldman received the full decision along with the notice; in light of the totality of the circumstances, it should not be penalized for an oversight. Finally, Ms. Goldman was not denied the opportunity to commence this Article 78 proceeding and have this Court review NYCHA's determination regarding the permanent resident and surviving-family-member requests. To be sure, Ms. Goldman raised substantive arguments in the instant petition as to why NYCHA's determination should be annulled.

Judicial review of an administrative determination pursuant to CPLR Article 78 is limited to the inquiry into whether the agency acted arbitrarily or capriciously, without any sound basis in reason. See, Matter of Pell v. Board of Educ., 34 NY2d. 222, 231-232 (1974); see also, Matter of Arrocha v. Board of Educ., 93 NY2d 361, 363 (1999). As long as there is some rational basis or credible evidence to support an administrative determination, the agency's decision must be upheld. See, Matter of Guzman v. Safir, 293 AD2d 281 (1st Dept. 2002) (determination was not arbitrary and capricious "because there was some credible evidence to support the Board's conclusion"), lv. denied 98 NY2d 614 (2002). Judicial review is not intended to weigh the merits of competing professional opinions because doing so undermines the function, authority and expertise of administrative agencies. See, Matter of Arrocha v. Board of Educ., 93 NY2d, at 363.

First, NYCHA's denial of the permanent-resident request was rationally premised on the accompanying documentation and its interpretation of the family-requirement provision. Despite Ms. Goldman's contentions that the then-current policy to permanently add a person did not require a family relationship, NYCHA rules suggest otherwise. In fact, Ms. Goldman acknowledges this when she states that a condition for permanent resident requires, inter alia, "two or more unrelated person(s) living together as a cohesive family group * * *" Verified Petition at 5, ¶ 19. Although NYCHA received Ms. Erbst's application prior to her death in which she stated that Ms. Goldman came to live with her, it could not verify this statement nor could it determine that the two cohabitated in the manner contemplated by the rules.

Next, while NYCHA did not find it necessary to interpret the death provision in its determination because it concluded that the subsequent conditions for remaining-family status were not met, it does so here in opposition to Ms. Goldman's petition. See, Brief for Respondent at 6-14. It reasonably argues that the provision deems that the applicant lawfully entered the building, but does not vest her/him with automatic succession rights. To be sure, [*5]the rule clearly states that the applicant may commence a Grievance hearing; it does not state that she/he is entitled to a positive outcome after said hearing. Moreover, while it deems the tenant in such a circumstance a lawful occupant, it does not confer upon her/him permanent or family-member status.

Finally, the determination that Ms. Goldman did not meet the requirements for remaining-family member status was reasonably based on the record. Indeed, Ms. Goldman gave conflicting testimony that she exclusively lived with Ms. Erbst and that she remained in her parent's household. From this testimony, NYCHA rationally concluded that Ms. Goldman did not continuously occupy the apartment during the period in question. In addition, Ms. Goldman was a minor when she allegedly moved into the apartment in 1999, as she was when she requested remaining-family-member status in 2001. Finally, she failed to provide NYCHA with a statement of verifiable income, which is also a requirement before one can be deemed a remaining-family member.[FN1]

Accordingly, it is

ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed.

This constitutes the Decision, Order, and Judgment of the Court.

Dated: New York, New York

December 6, 2007

ENTER:

_________________________

Hon. Eileen Bransten Footnotes

Footnote 1: Moreover, since Ms. Goldman has failed to proffer evidence that warrant this Court to annul NYCHA's determination, her request for attorney's fees is also denied.