Matter of Douce v New York City Hous. Auth.

[*1] Matter of Douce v New York City Hous. Auth. 2009 NY Slip Op 52530(U) [25 Misc 3d 1241(A)] Decided on October 22, 2009 Supreme Court, New York County Lobis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2009
Supreme Court, New York County

In the Matter of Crystal Douce, Petitioner,

against

New York City Housing Authority, Respondent.



106638/09



Appearances:

Petitioner was pro se.

Respondent was New York City Housing Authority.

Joan B. Lobis, J.

Petitioner Crystal Douce brings this petition, pursuant to Article 78 of the C.P.L.R., seeking to overturn the decision of respondent, the New York City Housing Authority (the "Authority") to deny her request for succession rights to apartment 3A at 291 East 143rd Street, in the Bronx (the "Apartment"), in a development known as Patterson Houses. The Authority opposes the petition.[FN1]

The tenant of record of the Apartment is Evelyn Maye, petitioner's mother. Petitioner asserts that she has resided in the Apartment for her entire life, and since giving birth to her minor daughter, Olivia Douce, on September 16, 1997, petitioner's daughter has resided there with her. Petitioner claims that she resided there with full knowledge of the Authority. Petitioner states that she submitted requests for permission to join her mother's household. Ms. Maye submitted a Notice of Intent to Vacate, dated February 14, 2008 (the "Notice of Intent"). The Notice of Intent set forth that since March 10, 1998, nearly ten years earlier, Ms. Maye had been residing in North Carolina.

By letter dated April 15, 2008, petitioner was directed to come to the Project Manager's office the next day. She was also served with a notice entitled "Remaining Family Member Claim," which sets forth that she can be evicted for occupying the Apartment without the benefit of a lease. She [*2]was further advised that she was entitled to a grievance proceeding. A second letter, dated May 16, 2008, directed petitioner to come to the Project Manager's office on May 22. Petitioner completed a Project Grievance Summary Form (the "Grievance"). Petitioner indicated that she would like to sign a lease for herself and her fourteen-year-old daughter. The Grievance indicated that petitioner had made a temporary request to join the household on July 12, 2000. Her request was not approved, due to holdover grounds, and no further request was made.

In a decision dated May 22, 2008, Kimberly Taylor, the Project Manager, denied petitioner's request to join the household, based on the fact that petitioner and her daughter had not been granted permission to join the household prior to the date that petitioner's mother vacated the premises. Petitioner filed`an appeal with the Borough Office for review of the Project Manager's disposition. In a decision dated September 30, 2008, Victor Hernandez, the Borough Manager, upheld the disposition of the Project Manager. The determination sets forth that the request to remain in the Apartment was denied because the tenant of record failed to obtain permission from management, in writing, to allow petitioner to reside in the household, at least one year prior to the tenant of record vacating the Apartment.

Petitioner requested a hearing, which was held before Hearing Officer Arlene Ambert on February 18, 2009. An attorney appeared for the Authority; petitioner represented herself. Petitioner testified that when her sister, who lived in North Carolina, became ill in 1998, petitioner's mother left New York to care for her. According to petitioner, her mother would travel back and forth from North Carolina to New York on a "fairly frequent" basis. Throughout that period, petitioner testified that she and her daughter resided continuously in the Apartment. The former manager, Ms. Greene, provided letters for petitioner with respect to school enrollment, which attested to petitioner's residency. But, petitioner did not provide copies of these letters at the hearing. Petitioner did, however, submit other school documents which set forth the Apartment as her daughter's address.

Petitioner submitted a letter, dated September 28, 2008, from her mother. The sworn letter states that Ms. Maye gave petitioner and petitioner's daughter permission to reside in the Apartment with the knowledge of Ms. Jackson, the Project Manager, and Ms. Green, a housing assistant. Ms. Maye states that she was caring for another daughter and her aunt, who live in North Carolina. Ms. Maye further stated that the Authority had knowledge of this arrangement from July 1997.

Evidence submitted by the Authority established that various requests to reside in the Apartment temporarily were made, one of which was granted. In 2000, a Temporary Permission Request was denied, based on the failure of petitioner's mother to state the "appropriate grounds" for the request. Yet, although the request for permission to remain was denied, the Authority did nothing to evict petitioner. Indeed, petitioner continued to submit income documentation.

In a decision dated February 23, 2008, Hearing Officer Ambert found that the grievance was not sustained, because the tenant of record never submitted a written request to seek permanent permission for additional family members to join the household. Moreover, once approval is granted, the additional family members must reside in the apartment for at least one year after receiving written permission and prior to the tenant's death or vacating the subject apartment. [*3]Although the Hearing Officer accepted the fact that requests for temporary permission were submitted, there was no evidence that a request for permanent permission was submitted, and requests for temporary permission cannot ripen into permanent permission. In other words, pursuant to Authority rules, an individual granted temporary permission to reside in an apartment has no succession rights. The Hearing Officer noted that the temporary request was not even submitted until 2000—two years after petitioner's mother moved out—and was denied. The Hearing Officer further found petitioner to be lacking in credibility, since she claimed to have resided in the Apartment all her life, yet submitted requests for temporary permission to reside there.[FN2] In a determination dated March 11, 2009, the Authority approved the disposition of the Hearing Officer denying the grievance. This Article 78 proceeding followed.

In an Article 78 proceeding, the court's review of an administrative action is limited to a determination of whether that administrative decision was made in violation of lawful procedures, whether it is arbitrary or capricious, or whether it was affected by an error of law. Matter of Pell v. Board of Educ., 34 NY2d 222, 231 (1974). "The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.'" Id. (citation omitted). A determination is considered "arbitrary" when it is made "without sound basis in reason and is generally taken without regard to the facts." Id.

Although petitioner claimed to have lived in the Apartment all her life, temporary requests for her to reside in the Apartment were submitted by her mother in 1997, 1998, and 2000. The January 1998 request was granted, with the permission granted until June 30, 1998, unless specifically extended. The third request, dated July 12, 2000, was denied. It is not arbitrary and capricious for the Hearing Officer to have concluded that it is inconsistent for petitioner to claim on the one hand that she resided there continuously while also seeking temporary residence.

Although the court sympathizes with petitioner, the court is constrained to follow the rules of the United States Department of Housing and Urban Development and the Authority, which strictly limit residence in federally-funded housing projects to those who are authorized to live there. This includes individuals who are listed on the lease and income affidavits, and for whom permission [*4]has been granted to reside there. See 24 C.F.R. § 966.4(f)(3) and § 966.4(a)(1)(v). The Authority rule of one year occupancy is rationally related to the goal of making sure that public housing is fairly allocated. Since petitioner did not have permission to reside in the Apartment for one year prior to her mother's vacating of the Apartment, the court is constrained to find that it was not arbitrary and capricious for respondent to find that petitioner cannot succeed her mother as a tenant to the Apartment. Aponte v. New York City Hous. Auth., 48 AD3d 229 (1st Dep't 2008) (finding that there is "no basis to relieve petitioners of the written permission requirement"); McFarlane v. New York City Hous. Auth., 9 AD3d 289, 290 (1st Dep't 2004) (grandchildren of deceased tenant cannot succeed to apartment where written permission was never granted); Abdil v. Martinez, 307 AD2d 238, 242 (1st Dep't 2003) (denying Article 78 petition, and finding that daughter and her son cannot succeed to father's apartment where no written request was ever made and permission was not obtained). Even though it may be true that employees in the management office were aware that petitioner and her daughter were residing in the Apartment, the Authority cannot be estopped from determining that petitioner was not properly added to the household before her mother left the Apartment. Schorr v. New York City Dept. of Hous. Pres. & Dev., 10 NY3d 776, 779 (2008).

The remaining allegations in the petition are without merit. The petition is denied and this proceeding is dismissed. This constitutes the decision, order and judgment of the court.

Dated: October, 2009

______________________________

JOAN B. LOBIS, J.S.C. Footnotes

Footnote 1: In its papers, the Authority states that it has not yet received a copy of the hearing transcript from the outside vendor. In view of the evidence presented at the hearing, the submission of the transcript is not necessary.

Footnote 2: There is better evidence that tends to show that petitioner vacated the Apartment in 1988 that is annexed as exhibits to the Authority's opposition papers, but the Hearing Officer's determination does not reflect whether these documents were part of the hearing. For example, the Tenant Data Summary reflects that petitioner moved out of the household in 1988. Also annexed to the papers is a copy of a notarized letter, dated March 24, 1988, that is signed by petitioner's mother, which states that "Crystal Maye no longer lives at this address and I don't no [sic] her where abouts [sic]." Without the transcript, it is impossible for this court to determine whether these exhibits were admitted into evidence at the hearing. Accordingly, this court cannot rely on them in this Article 78 proceeding. "Judicial review of administrative determinations is confined to the facts and record adduced before the agency.'" Matter of Yarbough v. Franco, 95 NY2d 342, 347 (2000), quoting, Matter of Fanelli v. New York City Conciliation & Appeals Bd., 90 AD2d 756, 757 (1st Dep't 1982), aff'd for reasons below, 58 NY2d 952 (1983).