Collazo v New York City Hous. Auth.
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Collazo v New York City Hous. Auth. 2010 NY Slip Op 34106(U) November 17, 2010 Supreme Court, New York County Docket Number: 114261/09 Judge: Manuel J. Mendez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT .OF THE STATE OF NEW. YORK- NEW YORK COUNTY • PRESENT: . MANUEL J. MENDEZ ~lee PARTJ.L_ INDEX No. ROBIN COLLAZO, MOTION DATE 114261109 _..11.....·1--.6·.-20--.09.....__ _ •V• MOTION SEQ. NO. NEW YORK CITY HOUSING AUTHORITY, MOTION CAL. NO. !FILED DEC 30 2010 The following papers, numbered 1 to _2_ were read on this peUtlon to/for Art. 78 ~ . ;;;;oNTY CLERK'S Notice of Motion/ Order to Show Cause -Affidavits-Exhibits... Answering Affidavits- Exhibits _ _cross motion _1_ __ 2 Replying Affidavits _ _ _ - - - - - - - - - - - - Cros$·Motion: • PAeeRS NU•lJl'roRKOFFICE Yes X No Upon the foregoing papers, it is ordered and adjudged that this f\rticle 78 petition is denied and the proceeding is dismissed• . Petitioner resides at 691 F.D.R. Drive Aptlll (Wald Houses) which is managed by the Respondent New York City Housing Authority. Petitioner filed a grievance with Respondent to be qualified as a remaining family member and succeed to the apartment The apartment had been Jease.d to Petitioner's mother, Ms. Carmen Collazo. Petitioner resided with Ms. Collazo and was a part of the faniily-i::omposition until ·he moveci oµt of the apartment in 1988. Petitioner claims that ht· returned to live with her and resided in the apartmenUrom 2001., ·taking care of his mother from that date until her death in 2007 ; However, the last nine·affidavits of Income filed by Ms. Collazo, from 1999 to 2007, list Ms. Collazo as the only o.:cupant of the apartment [see Respondenf s answering ~ffidavit Exh E]. Ms. Collazo passed away on December 18, 2007 [ Exhibit L] and on December 24, 200:7 petitioner filed a "rem~ining family member claim11 ['Exhibit M]. Petitioner filed a grievance with management Which was denied on May 8, 2008. Project Manager Elaine Nunez found that Mr. Collazo 'iwas not an authorized member of the household. Ms. Collazo never requested permanent permission for Mr. Robi~~ Collazo to join the household and he Is not listed on any of the annual review papers. He is · therefo.re not qualified as a RFM". [see Exhibit O]. The Project Manager's · determination was reviewed by the Borough Manager who by decision dated June 19, 2008, agreed with the project manager's disposition, finding that "a review of· the file rev~als that Robin Collazo was once a member of the household, however, he subsequently vacated and the lessee m! ier requested or [* 2] obtained permission for him to rejoin the household. " [see· E~. Q &R]. The Grievance was then referred to Hearing Ol!{cer Joan Pannell, who held hearings ' on December 11, 2008; January 8, 2009; ()ii 14, 2009 and May 19, 2009. [~ee · Exh. V]. . . . At the hearing NYCHA presented the testimony of Housing assistant Priti Chattergee•. Ms. Charttegee stated that based on NYCHA's records Ms. Collazo removed Petitioner from the family composition in October 1988, providing an address for him in Brooklyn. Ms. Collazo filed income affidavits that did not include petitioner in the family composition and she never requested that he be restored to the family composition for the apartment Petitioner appeared reP.resented by counsel. He testified, providing no proof to substantiate his claim to remaining family member status. When questioned by his attorney he admitted moving out of the apartment sometime in 1988. He alleges he returned sometime in 200112002 but that his mother never placed him on the family composition and he never notified Management that he was living in the apartment On cross-examination it was revealed that he took.a mortgage interest deduction on his taxes, this he attributed to computer error. (The same error appears to have occurred in his returns for the years 2006 and 2007). In addition his W-2 forms lists an address in Brooklyn, not the subject apartment, as petitioner's residence.[see Exh V &Y]. The hearing officer by decision dated June 5, 2009 determined that " The testimony of Grievant was not credible. 'He used the NYCHA apartment as his address for his IRS returns, but his W2 forms show a different address, and he aiso claimed each y~ar a home mortgage interest deduction, which Is supported by forms supplied to the IRS. He prepared his returns himself, .and surely did not make the same "computer error" each year. In addition, Grievant was inconsistent about when he returned to the NYCHA apartment" " In any event Grievant did not show that permission was obtained or even soughH9r his residence. Accordingly, Griev~nt is not a residual tenant as defined by· NYCHA's regulations." [see Exh. Z]. It is the function of the housing .authority Hearing Officer to determirJe credibilify and the weight to be accorded testimony given by a witness in a termination of public tenancy proceeding ( see Jimenez v. Popolizio, 180 A.O. 2d 590, 580 N.Y.S. 2d 302 [App. Diy.1st.1992]; Wooten v. Finkle, 285 A.O. 2d 407,.728 N.Y.S. 2~ 152 [App. Div. 151• Dept. 2001]). NYCHA'S Board reviewed the Hearing Officer's decision and approved it by decision date June 17, .2009. [See Exh. AA]. Petitioner filed the instant Article 78 petition on October s; iooe, seeking judicial review of Respondent's determination denying her grievance. [see Article 78 petition]. ;. "... A proceeding against a body or officer must be cdmmenced within four months after the determination to be reviewed becomes final and binding upon [* 3] the petitioner...."[C.P.L.R. § 217(1)]. This abbreviated time frame is said to serve . ~ublic policy by freeing government opel.a · ns from the "cloud" of potential • litigation [Best Payphones, Inc., v. Depari nt of Information, Technology .and Communications of City of New. York, 5 N. : 3d 30, 832 N. E. 2d 38, 799 N.Y.S. 2d 182 (2005)]. An administrative determination.becomes "final and binding" triggering the four month statute of limitations for comm~ncing an Article 78 proceeding, when the petitioner seeking review has been aggrieved by it. (Rocco v. Kelly, 20 A.D. 3d 364, 799 N.Y.S. 2d.469 [App. Div.1st. 2005]; Yarbough v. Franco, 95 N.Y. 2d 342, 740 N.E. 2d 224, 717 N:v.s. 2~ 79 [ 2000]. The four month limitations period for Article 78 review runs from petitioner's receipt of the adverse determination [Yarbough v. Franco, 95 N.Y. 2d 342, 740 N.E. 2d 224, 717 N.Y.S. 2d 79 [supra]. NYCHA's determination became final and binding when petitioner received notice of the Board determination in June of 2009. He filed this Article 78 Petition · within four months of receipt of NYCHA's determination therefore the petition is ti~~ f According to the "one year rule" only where a remaining f~mily member has lived in an original public housing tenant's apartment for one year after having been granted written permission to do so may the remaining family member succeed to the apartment (Torres v. New York City Housing Authority, 40 A.O. 3d 328, 835 N.Y.S. ·2d .184 [App. Div. 1st. Dept. 2007]). As such rema~ning family member status has been denied to a Grandson who despite residing in the apartment inany years, did not become " an authorized occupant of the apartment prior to the Grandmother's death."( Valentin, New ork City tiousing Authority, 72 A.D. 3d 486, 898 N.Y.S. 2d 130 [App.·Div.• 1st. Dept 2010]), a Granddaughter who failed to obtain written approval or occupy the apartment continuously for a period of one year after obtaining permission (Hargrove v. Van Dyke Housing, 63 A.O. 3d 741, 880 N.Y.S. 2d 156 [App. Div. 2·1d. Dept. 2009]), a Daughter who had not resided in the ap'arbnent for one year prior to mother's death and had not applied for permission to rejoin household ( Pelaez v. New York City Housing Authority, 56 A.O. ~d 325, 867 N.Y.S. 2d 41.3 [AP.P~ Div.1st. Dept. 2008]), an occupant who did not enter apartment lawfully and for which no written permission was given to tenant of record (Abreu v. New.York City Housing Authority, 52 A.O. 3d 432, BSO R:Y.S: 2d 115,[App. Div.1st. Dept. 2008]). v. y The Hearing officer discredited Petitioner's testimony and determined th~t · Petitioner was not part of the family composition, an.d did not obtain written permission from Management to reside in the apartment permanently. Therefore, petitioner cannot be grant~d remaining family member status and his petition to annul the Hearing Officer's determination must be denied. The Landlord Tenant proceeding under index number L &T 019516/09 is transferred and referred back to housing court Part Efor further proceedings. [* 4] Accordingly, it is ORDERED and ADJUDGED that the pe~tion is denied and the proceeding is dismissed; and it is further, .. . . if ORDERED, that the Landlord Tenant proce~dlng under index number L&T 019516/09 is transferred to housing court Part E for further proceedings; and it is further, ORDERED that all stays of the Landlord Tenant Proceeding are vacated. This constitutes the decision and judgment of this court. Dated: November 17. 2010 MANUEL J, MENDEZ J.S.C. Check one: X FINAL DISPOSITION Check if appropriate: 0 t.uu Dl#VfUEL J. MENDEZ . 0 NON-FINAL DISPOSITION . J.s.c. DO NOT POST 0 REFERENCE ' Fl LED DEC 30 2010 OQUNTY CLERK'S OFFIC~ • NEWYORI(~ CQUNTY CLERK'S OFFIC~ . NEWYORI(~ ...
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