Matter of Andux v New York City Hous. Auth.

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Matter of Andux v New York City Hous. Auth. 2012 NY Slip Op 32999(U) December 14, 2012 Supreme Court, New York County Docket Number: 401451/2012 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] I index Number : 401451/2012 NYC HOUSING AUTHORITY n w I Y K w I. CHECK ONE: ..................................................................... V ........................... MOTION IS: 0GRANTED 3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER 2. CHECK AS APPROPRIATE: NON-FINAL DISPOSITION CASE DISPOSED / DO NOT POST DENIED 0GRANTED IN PART 0OTHER SUBMIT ORDER FIDUCIARY APP MENT 0REFERENCE . - - [* 2] SUPREMIC COURT OF THE STATE OF NY COUNTY OF NEW YORK: PART 4 In the Matter of the Application of Jaden Andux, Petitionfir, Index No.: 401451/12 DECISION, ORDER AND JUDGMENT -againstNew York City Housing Authority, Kespon dent. Prcscnt: HON. ARLENE Y. BLUTH It is ORDERED and ADJUDGED that this Ai-ticlc 78 petition is denied and the proceeding is dismissed. Petitioner, who is self-rcpreseiited, coiiiincnccd this Article 78 proceeding cliallcnging respondent Ncw York City Housing Authority s ( N Y C I I A ) Determination of Status datcd March 28, 20 12 which uplicld thc hcaring officer s decision to deny pctitioner s remaining l aniily nieinhcr claim to apartinelit #51) at 60 Amsterdam Avenue in Manhattan. Petitioner s grandmother, Caridad Aiidux, was the tenant of record of the subject apartinelit until her death on July 27, 20 10. NYCHA opposes the pctition. Hcaring A nine session hearing was held from July 201 1 tlirough February 201 2 W o r e a hearing ollicer, who hcarcl testimony from pctitioncr, his father and his aunt, and N Y C H h s Kcsidcnt Scrvices Associatc, Anthony Aron, and Housing Assistant Kathy Washington. The hearing officer also revicwcd various documents which were admitted into evidence by both sides. In licr findings and conclusions, thc hearing officer found that petitioncr did not establish Page 1 of 5 [* 3] hat he was ;m original fiimily nicniber in continuous occupancy of the sub-jectapartment until Ms. Andux died on .luly 27, 201 0, or that hc resided in the apartment with the written permission of management for at least otic year prior to Ms. Andux s death. Although thc liearing officer noted that Ms. Andux submitted a written request for permanent permission for petitioner to join her household, NYCHA disapproved that rcqucst on llecenibcr 1 0,201 0, indicating that petitioner was living with his mothcr and attending liigh school in Pouglikccpsic N Y , and ineligible to reside with Ms. Andux. The hearing olficer further indicated that even if that requcst liad becn approvcd by imanagcniciit on t1w day it was submitted, petitioner still would not have bccn cntitlcd to rcmainiiig family inember status because petitioner would not have had one year of authorized occupancy. Based on the cvidciice, the hearing officer dcnicd petitioner s grievance. Article 78 Standard I lic U ludicial review of an administrative deterniinatioii is conhied to the [acts and record itdduccd before the agency . (Mutier of Ywhough v h ranco,95 NY2d 342, 347 [ZOOO], quoting Mutter qf Funelli v New York City (- onciliationce Appeuls Buwd, 90 AD2d 756 [I st Ilcpt 19821). The reviewing court may not substitute its judgment for that of thc agency s determinatjon but must decide if the agency s dccisioii is supported o n any rcasonable basis. (Matter qf C,Yirncy-I irllcnStoragc (- (I. v Roarcl of l<leciiunsofthe C, ity of New York, 98 AD2d 635, 636 [ 1 st Dcpt 19831). Once the court finds that a rational basis exists for the agency s dctcrinination, then the court s review is ended. (Mutter qfLSztffivan C uunty Hrrness Racing Associntion,Innc. 17 (&issrr, 30 NY2d 269, 277-278 [ 19721). Thc court may only declare an agency s determination arbitrary and capricious if thc court finds that therc is no rational basis for the agcncy s delenninatioii. (Mutter of Pcll v Board qf Lducirfion,34 NY2d 222, 23 1 [ 1974 I). Page 2 of 5 [* 4] Gaining succession as a remaining f mily member requires an occupant to (1) move lawlillly into the apai-tnicnt aiid (2) qualify as a specified relative of tlic tcnant of record and (3) remain continuously in the apartnicnt for at least one year iminediately before the date the tenant of record vacates the apartment or dies and (4) be otherwise eligible for public housing i n accordancc with NYCHA s rules and regulations. See NYCHA Occupancy and Keinainiiig Family Member Policy I<cvisions Gcncral Mcmoranduni (GM) 3692 Section T (b), as revised V and amended July 1 1, 2003 (exh A). At issue here are requirements (1)obtainiiig the permission, and (3) living in the apatnicnt for oiic year alier getting the periiiission. I h c requirement that pcrmission is ncccssary is enforceable. See Aponte u N Y ( X A , 48 h D 3 d 229, 850 NYS2d 427 I 1 st I k p t 2008 I The denial olpetitioncr s [rcmaining family member I grievance 011 thc basis that writtcn permission had not been obtaiiicd for tlicir rctum to thc apartment i s neither arbitrary nor capricious. See also NYC HA v Newman, 39 AI33d 759 (1 Dept 2007); Ihichc1~,~on v NYC HA, 19 AD3d 246 (1 Dept 2005) (dciiicd rcmaining family menibcr status because written perniission to move in was not obtaincd). I hatone-year requircniciit has also been upheld (SLY 7 i m w v NYUIA, 40 AD3d 328, 330 I 1st Dept 20071 holding that wheii petitioner scckiiig to succeed to tcnant of record s lease had not complied with the otic year requirement, that thcrc [was] no basis whatsocvcr for Iiolding the agciicy decision to bc arbitrary and capricious ). Petitioner s Claims In short, pctitioner slates (petition, para. 3) that he fully understmd[s] the onc year rule and Lis] loolting to get an exception because his hmily is in need. Page 3 of 5 [* 5] Petitioner was never part of Ms. Andux s houscliold, and hc was never listed as an occupant of her apartment on the afiidavits of incomc shc submittcd to management, or any tenant suiiiiiiary form. Pctitioncr admitted that while he spent time on weckcnds, holidays and during the suimner in the sub.ject apartment, he lived upstate and attcndcd high scliool there, which is documented hy his drivcr s license and high school diploma, introduced into evidence at the hearing. Although petitioner states that this apartment has been important to him, and that 1ic and his father are model tenants and will be homeless without it, this Court lacks the authority to consider mitigating circumstances or potential hardship as a basis for annulling NYCHA s determination (ser C;zmnun v NYC IIA, 85 AD3d 514, 925 NYS2d 59 [lst Dept2011]. To the cxtcnt that pctitioncr suggests that his grandinothcr intcndcd to lcave thc apartment to him, public housing apartmcnts arc not private properly and thus cannot be bequeathed o r transkrred. See Ht.u.nandez v NW York Ci/y IIous. Auth., Index No. 402278/08 at 6 (n.0.r.) (Sup Ct, N Y County 2009). Petitioner also claims that he is entitled to ;L lease to the apartment bccause he has paid rent (USC and occupancy). First, petitioner waived this claim by not raising it at the adininislrative hcaring. Moreovcr, the alleged payment of use and occupancy cannot change an unauthorized occupant s status arid cannot be deemed a substitute for written permission. Mtrhammad v NPMI York C i/y IIoiis. Auth., 81 AD3d 526, 527 (1 Dept 201 1). Therefore, N Y C1 IA s dctcriiiiriation dciiying pctitjoiier remaining h n i l y member status was rational, m d not arbitraiy or capricious. Pctitioncr did not demonstrate that hc residcd in the apartment with the writtcn pcrlnissiori of inanagement for at least onc ycar prior to Ms. Andux s death. Page 4 of 5 [* 6] Accordingly, it is ORDERED and ADJUDGED that this Articlc 78 petition is denied and the proceeding is dismissed. 'I'his is thc Ilecision, Ordcr and Judgment of the Court. I ? Datcd: Ucccmbcr)f, 2012 New York, New York HUN. ARLENE P. BLUTH, ,JSC Page 5 of 5

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