Matter of Engram v New York City Hous. Auth.

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Matter of Engram v New York City Hous. Auth. 2013 NY Slip Op 31444(U) July 8, 2013 Supreme Court, New York County Docket Number: 402189/12 Judge: Doris Ling-Cohan 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. SCANNED ON 71912013 [* 1] c SUPREME COURT OF THE S I ATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. Doris Ling-Co lian, Justice Part 36 In the Matter of the Application of DAMIEN A. ENGRAM, INDEX NO. 402189/12 Petitioner, MOTION SEQ. NO. 001 For a judgment pursuant to Artxle 78 of the CPLR -againstNEW YORK CITY HOUSING AUTHORITY, Resnondent. m COUNTY CLERKS OFFICE NEW Y ORK The following papers, numbered &.Iwere considered on this Article 78: PAPERS NUMBERED luse, -Affidavits - Exhibits Notice of Motion/Order to Show C: Answering Affidavits -Exhibits Replying Affidavits Cross-Motion: [ J Yes 1,2 3 [ X J ho Upon the foregoing papers, it is wdered that this Article 78 proceeding is decided as indicated below. Petitioner Damien Engram seeks an order pursuant to Article 78 of the CPLR reversing respondent New York City Housir g Authority s (NYCHA) determination, dated June 13,2012, which denied petitioner s remaining fami iy member grievance. BACKGROUND Petitioner currently resides at 424 Morris Avenue, Apt. 3A, Bronx, New York (Subject Apartment). The Subject Apartme nt is located at Patterson Houses, a public housing development owned and operated by NYCHA. TheUnited States Department of Housing and Urban Development mandated NYCHA to promulgate policies to govern admittance of persons to public housing. See 24 1 [* 2] C.F.R. 5 960.202(a). In December 201 1,the tenant of the Subject Apartment, Sharon Smith (tenant Smith), passed away. Subsequent to tenant Smith s death, NYCHA informed petitioner that he was occupying the Subject Apartment, without a leas):, and might be able to pursue a remaining family member grievance. Petitioner met with the property rr,anager in March 20 12 regarding such grievance. In a Project Grievance Summary, dated March 20, 2012, the project manager denied petitioner s grievance. In a letter to petitioner, dated April 23, 2012, NYCHA informed petitioner that he could request an informal grievance hearing or submit additimal information, by May 7,2012, or NYCHA would review his claim and render a decision. Petitioner tiid not request an informal hearing and did not submit any additional information. Thereafter, the Boro igh Manager upheld the property manager s decision in the District Grievance Summary (Final Deterr tination), dated June 13,2012, and denied petitioner a hearing. On October 11,2012, petit oner commenced this Article 78 proceeding to reverse the Final Determination. DISCUSSION Here, the Final Determination was not arbitrary or capricious, and, thus, the petition must be denied. In deciding whether an agmcy s determination was arbitrary, capricious or an abuse of discretion, courts are limited to an assessment of whether a rational basis exists for the administrative determination and their review ends when a rational basis has been found. See Heintz v Brown,80 NY2d 998, 1001 (1992); Sullivan Izounty Harness Racing Assoc., Inc. v Glusser, 30 NY2d 269,277-278 (1972). Judicial review of an administrative determination is limited to whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion ... CPLF $7803 (3). The Court of Appeals explained the arbitrary and f capricious standard in Mutter of 1 ell v Board o Educ. , 34 NY2d 222,23 1 (1974) as follows: 2 [* 3] C The arbitrary or capricioi IS 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. (I N.Y. Jur., Administrative 1 ,aw, 9 184, p. 609). Arbitrary action is without sound basis in reason and is generally taken witl- m t regard to the facts. Thus, a court may not substitute it!;judgment for that of an administrative agency, if there is a rational basis for the agency s determinatic en. See Matter ofNehovayoffv M l s 95 NY2d 67 1,675 (200 1). The il, court may not overturn the determ nation of an administrative agency merely because it would have f reached a contrary result. See Malter o Sullivan County Harness Racing Assoc., Inc. v Glusser, 30 NY2d 269,278 (1 972); Matter of Xaplan v Bratton, 249 AD2d 199,201 (1 St Dep t 1998). Moreover, it is well settled that the interpretation given a statute by the agency charged with its enforcement will be respected by ihe courts if not irrational or unreasonable. Matter o Fineway f Supermarkets, Inc. v State Liq. Aul h., 48 NY2d 464,468 (1979); Matter of Howard v Wymun, 28 NY2d 434,438 (1971); Matter of Lower Vanhattan Loft Tenants v New York Ct Loft Bd. , 104 AD2d 223, iy 224 (lstDep t 1984), a f d 66 NY:!d 298 (1985). Pursuant to the NYCHA s Management Manual, an occupant may succeed to the lease of a tenant of record, as a remaining fatnily member, if certain conditions are established: A. Conditions to Acqt ire Remaining Family Member Status A person who clain is to have Remaining Family Member [(RMF)] Status...shall acquire RFM status if (s)he lawfully enters the apartment and is in continuous occupancy of the apartment as follovs: 1. Lawful Enti y An RFM cl; imant enters the apartment lawfully if (s)he became part of the household a s one of the following: a. Orig inal Tenant Family member (according to Section XI. A.); or ... C. Obtained Permanent Residency Permission (i.e., written permission) from the 1 lousing Manager (according to Section XI. B. 2); and 2. Continuous Occupancy The RFM c aimant must remain in continuous occupancy in the apartment, ie., be named on a: L affidavits of income from the time (s)he lawfully enters the apartment until all tenants/lessees move out of the apartment or die. Verified Answer, Exh. G, NYCHb. Management Manual, Chapter IV, Occupancy, Sect. XII. A. Further, 3 [* 4] 24 C.F.R. 9 966.4(a)( l)(v) states tl [at tenants must request [NYCHA] approval to add any other family member as an occupant of the unit . Petitioner argues that the S ibject Apartment has been in his family for over 50 years. Petitioner states that he was living with t e n i t Smith, his cousin, since April 2008, and took care of her in 2009, when she was diagnosed with can( er, until she passed away in 20 1 1. In the Final Determination, the Borough Director agreed with the decision of the property manager, and found that tenant Smith left [petitioner] Damien Engram and 1 aham Engram, who are cousins in the apartment without management s knowledge. Verif ed Answer, Exh. P, District Grievance Summary. The Final Determination states that [wlritteri permission to reside in [the Subject Apartment] was never given to [petitioner] or Taham Engram...[, , md that] cousins are not a listed criteria for a family addition to join a household. Id. In further suppor ,NYCHA proffers, inter alia, the Lease Addendum and Rent Notice for 2008,2009, and 2010, all of which list tenant Smith as the sole occupant of the Subject Apartment. See Verified Answer, Exh. F., Lealie Addendum and Rent Notices. It is uncontested that petitit mer is a cousin of tenant Smith, and that he was not on the household composition for the years he claim s to have lived in the Subject Apartment. Rather, petitioner argues that the Final Determination show111 be reversed as he and tenant Smith did not think to add him on the lease, as he was busy taking care c F her in her failing health. However, the plain language of the policies promulgated by NYCHA, and 24 :.F.R. 3 966.4(a)(l)(v), specifically states that, in order to qualify for succession: (1) a family member o F the tenant must have lawfully entered the apartment, requiring written permission from NYCHA, which petitioner here, undisputedly failed to obtain; and (2) must have continuously occupied such apartment, requiring petitioner to be listed on the income affidavits or family compositions, on which pel itioner undisputedly failed to be listed. Notwithstanding petitioner s arguments, as indicated, tenant Sniith affirmatively submitted documents to NYCHA for the relevant 4 [* 5] rn years listing only her as the sole o,;:cupant. Petitioner provides no persuasive arguments or any evidence to support the within petition. Th is, the Final Determination, finding that petitioner is not entitled to succession rights, as he does not n ieet the minimum requirements to succeed, is rational, and not arbitrary and capricious. Moreover, the Court of Appeals has held that, under these circumstances, an administrative hearing is not requi red, and, thus, the petition must be denied. See Matter of Evans v Franco,93 NY2d 823, 825 (1999:t(a hearing is unnecessary to confirm petitioner s status where the record is clear that petitioner was never certified by the NYCHA as a family member [and gJiven the 13 unequivocal annual statements by the deceased that she lived in the apartment alone ). Accordingly, it is ORDERED that thl.:petition is denied and this proceeding dismissed; and it is further ORDERED that wi ihin 30 days of entry of this order respondent NYCHA shall serve a copy upon all parties with notice c f entry. This constitutes the decisim of this Court. 7 1 4 D ~ I LING-COHAN, J.S.C. S Check one: [ X ] FINAL DISP OSITION Check if Appropriate: [ ] DO NOT POST [ J NON-FINAL DISPOSITION G:\Art. 78\Engram v NYCHA - succession ri!ihts.wpd FILED JUL O 0 G3 1 COUNTY CLERK S 0 F FICE NEW YORK 5

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