Matter of Brown v New York City Hous. Auth.

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Matter of Brown v New York City Hous. Auth. 2013 NY Slip Op 31988(U) August 20, 2013 Sup Ct, New York County Docket Number: 400406/13 Judge: Tanya R. Kennedy 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 812712013 [* 1] exNumber 40 NYC 14OUSING AUTHORITY SEQUENCE NUMBER 001 [* 2] SLJPKEME COUK'I' OF TFfE STATE OF NEW YORK - NEW YOIIK COUNTY PIIESENT: TANYA K. KENNEDY JUSLlUC In thc Matter of the Application of The following papers, numbered 1 to were read on this petition to/for Art. 78 PAPERS NUMBERED Notice of Motion/ Order to Show Cause Answering Affidavits - Exhibits - Affidavits - Exhibits cross motion Replying Affidavits ... 1 - X Yes Cross-Motion: 2 - .- __ 3 No Petitioner, who is self-represented, commenced this Article 78 proceeding to rcvcrse Lhc November 8, 20 12 deteniiination of respondent, New York City Housing Authority (NYCl In), which dismissed his remaining-~imily-iiieIiil~er grievance. Respondent cross-nioves to dismiss tlic petition. For the reasons sct forth below, the cross-motion is granted, the petition is cicnicd and the proceeding is disiiiisscd. Petitioner's mother, I I a A Brown, was the tenant of record at the Aiiistcrdani I Iouscs, 240 West 62nd Street, apartment 2E. Petitioner was a me~nber his mother's houschold and of subsequently vacated the apartment on October 28, 2006. Petitioner allcgcs that tic rctwicd to the apartment in 2009 and acknowledges that his mother did not obtain wriltcn permission for him to re-join the liouscliold. From 2006 until 2009, petitioner was not listcd on M s . Brown's affidavits of income as an occupant of the household. After Ms. Brown's death on August 4, 2010, her daughter, Elimbetli Bronn. r ~ ~ ~ ~ i c ' s t e d and W;E grantccl a rei~iaiiii g- h i i i I y- tiienibcr gri evaiice . EI izabct h Brown eve111ti ally scttl cd thc n gricvancc on August 25, 201 1 by signing a stipulation wherc she agreed to wcate the a1 hy Dcceniher 3 1, 201 1 Once Elizabeth Brown failed to vacate the aparlment by the agrcod upon I date, respondent coi~i~iiciiccd a holdover proceeding against her, "Jam Doc" a i d "John Doe." [* 3] Petitioner appeared in Housing Court in response to the holdover proceechg on August 13, 2012 and signed a stipulation where he agreed, among other things. to bc substituted for arrears Jo11tl Doe and that I-espoiident s records sct forth outstanding usc atid o c c u p a i ~ y totaling S4,962.88. Respondent informed petitioner on September 27, 201 2 that he was occupying his mother s apartment without a lease and that he may pursue a rcrnaiiiin~-l ~~iiii ly- iiieinbcr grievance. Pctitioiier requested a remaining-~~tiiily-member gricvalicc and on October 1 7, 201 2, he inet with the Project Manager who denied the grievance because pctitioncr s moihcr ticvcr requested arid rcceivcd maiiayemcnt s written permission for petitioner to re-join tlie hctusellolci. Petitioner thcn met with the Borough Director \\rho issued a dccisioti, dated N o ~ w i i b c rS. 20 12 decision, dismissing the remaiiiii~~-~~mily-iiieiiiber grievance since petitioiicr did not receive written permission froin inanagement to reside in tlie apartment at tlte time of his mother s death and owed 54,905.05 in use and occupancy arrears. Petitioner argnes in suppofl of his petition that respondent hiled to provide him with a ftill aiid fair opportunity to challenge the Projcct Manager s advcrsc deteriiiiiiation wlieri hc appeared before the Borough Director because lie did not receive a copy of lhe I rojccl Managcr s decision. He also maintains that respondent was aware of his residency at the apartmcut. In support of its cross-motion to dismiss, respondent inaintains that pcti tioner ackiiowledgcs that he was not current with his iisc and occupancy payiicnts, which is a prerequisite to pursuing a remaining- family-member grievance. Respondent also itrgires, among other things, that a I i c x i n ~ would be futile evcn if petilioiier was current with use and occupancy paynicnts since petitioner coiicccies that his mother did not rcquest or obtain Inanagcmcnt s writkni permission to re-join the household. Whcn reviewing an administrative determination in an Article 73 procecding, the Court IS limited to considering whether the determination was made in violation of Ianful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discrction, including abuse of tiiscrction as to the tneasLire or mode of pcnaity or discipline iniposcd (C PLR 7 8 0 3 [ 3 ] ) .A4n administrative decision will withstand judicial scrutiny if it has a rational basis anti 2 [* 4] is not arbitrary and capricious (sec~ kfurtm-ofPd1 v Uomcl oJE(11rc.ojUjlion Fret. Sc*lloolOisr. No. I of Tuui/uaf Scurscktlc c Muinaroncd, PVc~srcltester! Colrilt~), NY2cl 222, 23 1 [ 19741). 34 Petitioner acknowledges that he ~mnot currcnt i n his iisc and occl Therefore, he was not entitled to a remaining-~~iiiily-member grievance hearing ~ C C ~ L I ScLltrcllt I: use and occupancy paymenis is a prercyuisite to pursuing such grievance (XP i\k/fLrtier. uf lianlthorric 1) New York C ir), Hozrs. Aiitli., S1 AD 3d 420, 430-421 llst Dept 201 11; Martcl. (?j ( r p p w 1 hrc>ii ( if!, tlous. AH^, Sup Ct, NY County, Octobcr 4, 201 I . McndcL, .I.,i n c h York . No. 30 I030/ 1 I at * 3 ) . Petitioner also acknowledges that his inothcr never requested atid reecivcd \vrittcn periiiission for him to re-joiii her household. I licrefore,respondcnt properly dismisscd petitioner s grievatice since petitioner did not obtain the required pcmiissioti to IiLre in his mother s apartment (see Mrtto, o Coil~tzo New York c i(i,Hulls Airtlt., 93 AD3d 475 11st Dcpt f v 201 21; Mlltter o f ./dtit.soiI v ~VCIV YO^ Ci[y ~ ! O U S .A ~ t , 50 .4D;d 438 [ 1st Dcpt 2008 1). h Contrary to petitioner s contentions, lie \vas not entitled to rcccivc a written copy of tiit Projcct Manager s decision dcnying his rcrnaiiiiiig-faIiiily-IiieIiiber grievancc. Rcspondcnt s Maiiagement Maiiiial provides thaL where the Project Maiiager dcteriiiincs that the claimant docs iiot qualily for reiiiaiiiing-fariiily-member status, thc Manager sliail lorward his/licr ivrittcti conclusions to the hlanagemcnt Department for automatic review arid shall @ notify thc claimant of thc adverse decision (see Exhibit E3, NYCHA Mantigemcnt h4anuai. Chaptcr IV, MI [ I ) ] [ 3 J [b][3]). The Project Manager forwarded to the Borough Director his dcnial of petitioner s grievance for automatic review i n accordance with the respoiidcrit s rules. Oncc tlic Borough Director dctcrniined that petitioner failed to establish his cntitlcment to remaining- family-meniber status, petitioner s claim was properly dismissed and tfierc \vas no liii-thcr rigliL of appeal to the Hearing Officer (see Exhibit ¬3, NYCHA Managemcnt Wlanual, Chapter IV, SI1 [I11 [4][b][3]). The Court need iiot address the parlies remaining arguments siiicc the disiiiissal o f petitioner s rcmaiiiii~~-fjiiiily-iiicinber grievance was neilher arbitraty nor capricious. r . lhcl-efore, i t is ORDERED and ADJUDGED that the cross-niotioii is granted, thc petition is dcnied aiid the procccding is dismissed, without costs or disbursements to respondcnt. 3 [* 5] REFERENCE 4

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