Matter of Fernandez v New York City Hous. Auth.

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Matter of Fernandez v New York City Hous. Auth. 2012 NY Slip Op 32578(U) October 3, 2012 Sup Ct, NY County Docket Number: 112834/11 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. [* 1] ~ 1 - Index Number : 112834/2011 FERNANDEZ, FRANCES vs. NYC HOUSING AUTHORITY SEQUENCE NUMBER : 001 INDEX NO. - Replying Affidavits Upon the foregoin A Dated: I CHECK ONE: ..................................................................... . 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ,J.S.C. ~~ ......................... ,MOTION 1st ................................................ ! CASE DISPOSED 9 0GRANTED nDENIED E]SETTLE ORDER 0DO NOT POST IJ NON-FINAL DISPOSITION GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT REFERENCE [* 2] SIJPREME COURT OF T l l E S I A I EOF NY COUNTY OF NEW YOKK: PART 4 In the Matter of the Application of Frances Fcrnandcz, Petitioner, Indcx No.: 11283411 I DECISION, ORDER AND JUDGMENT New York City Ilousing Authority, Rmpnndent. Present: HON. ARLENE P. BLU I B It is ORnEREl3 and AI3JIJLXET) that this Articlc 78 petition is denied and the proceeding is dismissed. Petitioner conimenced this Articlc 78 proceeding challcngiiig respondent Ncw York City I Iousing Authorily s (NYCHA) Jktcrniiiiation of Status dated October 12, 201 1 which uphcld the hearing officer s decision, after a hcariiig, not to sustain petitioner s rcmaining l amily riicnibcr grievance involving apartment 4K at 622 Water Strcct i n Manhattan. NYCHA opposcs the petition on the grounds that petitioner was twicc dcnicd pcrniission to be added to the household because it WLIL overcrowded. Petitioner is the grtlndniother oi one of thc (fc7rmcr) tenants of record, Angel 1 lernandez, Jr.; his wife I anya I Icriirtndcz, was tlic other tenant of record. Petitioiicr seeks lo reverse llic Octobcr 12, 201 1 determination on thc grounds that it was riindc on 1 3 lechnicality that is The petition was admittedly written by Angel Hnnandcz 011 bchalf of Franccs f ct-iianclez (see para. 3). The petition was, liowevcr, vcrificd by Frances Feriiandez and so the Coiirt will considcr the petition, which challcngcs NYCIIA s deriial of Ms. Fcmandez s remaining farnily rncmber grievance, on thc mcrits. The aflidavit in opposition submilhxl by Angel Ilernandcz ( I, Angel IIernandez wish to respond [to NYCI-IA s meniorandum of law]) , but signed by petitioner before a notary, was not considcrcd by this Court as it is noL petitioner s slatcrnent atid she is not lhc 1 rcfcrrccl to throughout the allidavit. Page 1 of 6 [* 3] unfair and because we were led to believe that the process was moving along for [petitioner] to remaiii & were mislead [sic] upon vacating the apartment ... that [petitioner] could proceed with the process (petition, para.3). The lieariiig A licaring was held on June 3 , 201 I (at which time Mr. Hcrnandcz represented liis grmdr-nother) and on Septcimbcr 2 1, 20 1 1 (when petitioner was represented by counsel). The hearing officer heard tcsti tnony from the former tenant, Angel Hernandc7, from NYCHA x Resident Services Associate, Yvonne Imasuaii and N YCHA s Property Manager Juan Bello, from petitioner's daughter, Orchid Cruz, and froni petitioner. The hearing officer also revicwcd various documents, including l cnantData Summary Sheets, two 2008 Occupant s Affidavit of Income, two Notices of Intcnt lo Vacate and NYC I IA s manual relating to occupamcy standards. Mr. 1lt.rnanclc7 testified, in pertinent part, as follows: In June 2008, when he was a tenant olrecord of the subject two-bedroom apartnicnt, lie submitted a pcniianent permission request lor his grandmother to bc added to the 1ioLtsehold (which included himself, his w i k , his son, and his daughter). Icven though he never received a response to his request, petitioner movcd in to the apartment at the cnd of2008. Mr. Hernandc7 and liis h n i l y moved out in August 2009 but did not notify management instead, he did not submit a Noticc of lntciit to Vacate until September 8. 20 10. Mr. 1 Icrnandez also testified that, sometime alter March of 2009 (before lie iiiovcd out), NYCHA s Resident Services Associate Yvonne Imasuan told him that his request 11ad bccn Page 2 of 6 [* 4] denicd hack i n .Iuly of 2008 because it would create 3 1 overcrowded condition in the apartment. 1 I n Octobcr 2009 (afler he actually moved out but bcfore he subinittcd his Noticc of Intent to Vacate), hc sent ;I letter to managcmcnt detailing his efforts to secure the apartment for petitioncr. 11 1 May 201 0 (also after hc actually niovcd out but beforc hc subiiiitted his Notice of Intent to Vacate), lie subniittcd a second permanent permission rcquest for petitioner to bc addcd to the household. That rcqucst was also disapproved in June 20 I O because it would have created an 1 overcrowded condition fbr the grandmother to move into ; two bedroom apartiiicrit with Mr. mid Mrs. Hcriiandcz, tlicir soil and daughter. In her findings and conclusions, the Iicaring officer recouiitcd testimony given by Mr. Heriiaiidcz and Ms. C ruz (Mr. Hernandez s mother and petitioner s daughter), niid found that their condLict was at best misguidcd and at worst dishonest (p, 6). I hehearing officer expressly rejected Mr. I I c r n a n d c ~ and Ms. Cruz s assertions that ( 1 ) managciiicnt should assunic that ; ~ 1 pcrson who has iiot been graiitcd permission to join the liousehold (here, peljtioiicr) is acl~ially rcsiding in that houschold, and (2) il a disapproval was not received, petitioiicr was periiiittcd to rcside in thal apartment. T1 her i six page decision, the hearing olficer did not sustajri the remaining fiiliiily mcrnbcr grievancc hccause it was undisputed that NYC I IA never graiitcd petitioner written permanent permission to rcside in the subject apartment as rcquired by its rulcs. Page 3 of 6 [* 5] Standard of Review I hc [j]udicial review of an administrative dctermiiiation is confined to the facts and v record adduced bcforc the agency . (A4iltter of I ~~buugh Fmncri, 95 NY2d 342, 347 L2.0001, quoting Muller of FmeILi v New York C iiy C onciliution & Appeuls Bourd, 90 AD2d 756 1I st Dept 19821). I hcreviewing court may not subslitute its judgment [or that of the agciicy s detcrniination but inlist decide if the agency s decision is supported on any reasonable basis. (Miiiter of I- lnncy-l, ziLlen Siovagc~I o v Board oflJections o f / h c C ify of NPW York, 98 AD2d 635, 636 11 st I3cpt 19831). Once tlic court finds that a rational basis exists for the agency s determination, thcn the court s rcvicw is ended. (Muller 01Sullivan C ozlnly Hur.ne.ss Racing Asiociation, /nc. v I/IrrsstJv, 30 NY2d 269, 277-278 [ I 9721). The court niay only declare an agency s dctcrmination arbitrary and capricious if the court finds that tlicre is no rational basis fbr tlic agcncy s determination. (Maldw c$ Pel/ v Rourd OJ Educuiion, 34 NY2d 222, 23 1 119741). Gainj tig succession ;IS a remaining fimily ineinbcr rcquires an occupant lo (1) move lawfully hito tlic apartment and (2) qualify as a specifkd rclatjve of Ihe tenant of record and (3) remain continuously i n the apartmcnt for al least one year immediately before the date tlic tcnant of record vacates tlic apartment or dics and (4) be otherwise eligible f or public housing in accordance with NYCHA s rulcs and regulations. Scc NYCHA Occupancy and Rctiiaining Family Mernbcr Policy licvisions General Memorandum (GM) 3692 Section TV (b), ;is revised and amcnded July 1 1, 2003. The requircmcnt that permission is necessary is enforccablc. See ApontC 1 1 NYVIIA, 4X AD3d 229, 850 NYS2ci 427 [lst Dept ZOOS] The denial of petitioner s (remaining family Page 4 of 6 [* 6] inember] gricvaricc on the basis that written permission had not been obtaiiicd for their return to the apartment is ncitlicr arbitrary nor capricious. ,See also NYCHA v Newman, 39 All3d 759 ( 15 Ilcpt 2007); Ih/r.hcrson v NI C HA, I9 AD3d 246 (1 Dept. 2005) (denied remaining family member status because written pertnission to move in was not obtaiiicd). Even though petitioner ncvcr obtained permission and did not reside in the apartment for a year bcforc licr grandsoii arid his family nioved out, she nevertheless asserts that she is entitled to succeed to licr grandson s public housing leasc. In support uf that position, she asserts that starting on May 12, 2009 (after slic had already iiioved in without pcriiiission), NYCNA employccs niisled her and the tenant as to how to apply I or periiiaiicnt permission to bc added to the leasc. Petitioner also alleges that iiiatiagctiictit misled the family j nto believing that management would approve the request to add petitioner to the houschold. 1 o the extent that pctitioiicr claims that NYCHA s employees misinformed her about NYCHA s policics and she rclicd on those statements, it is well settled that an agency cannot be estopped from invoking [its] rcgulations (citation omitted) (Mirhammad v New Yurk C ity Hous A u f h . , 81 A133d 526, 91 7 NYS2d 173 ( I Dept 201 1). As it is undisputed that the tetiant of record never rcccivcd NYCHA s permission for petitioner to pcrinanently reside in tlic apartment and she did not rcside in the apartmcnt for a year beforc tlic tciiants of record vacated 937 NYS2d 189 ( I (SCP Weisman 11 Ncw York C, it+yHrius. Au/h., 91 AD3d 543, Tkpl 201 2)), the Iicaring officer s determiriation dcnyitig petitioiicr remaining family inember status was rational, and not arbitrary or capricious. Accordingly, it is ORDGKHD and ADJUDGED that this Article 78 petitio11 is dcnied and Page 5 of 6 [* 7] the procecding is dismissed. I his is thc Ilccision, Order and Judgment of the Court. /7 Dated: October 3,2012 Ncw York, New York HON. ARLENE 1 . BLUTH, JSC Page 6 of 6

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