Opinion
6585 Index 100984/16
05-17-2018
In re Norma BLAS, Petitioner–Appellant, v. Shola OLATOYE, etc., et al., Respondents–Respondents.
Urban Justice Center, New York (Michael Grinthal of counsel), for appellant. Kelly D. MacNeal, New York (Seth E. Kramer of counsel), for respondents.
Urban Justice Center, New York (Michael Grinthal of counsel), for appellant.
Kelly D. MacNeal, New York (Seth E. Kramer of counsel), for respondents.
Friedman, J.P., Sweeny, Kapnick, Kahn, Oing, JJ.
Judgment (denominated an order), Supreme Court, New York County (Arthur F. Engoron, J.), entered January 17, 2017, denying the petition seeking to annul a determination of respondent New York City Housing Authority (N.Y.CHA), dated March 22, 2016, which denied petitoner's remaining family member (RFM) grievance on the ground that she did not qualify as an RFM, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
NYCHA's denial of petitioner's grievance has a rational basis, as the evidence adduced at the administrative hearing shows that NYCHA never granted written permission for petitioner to reside in the tenant of record's apartment (see Matter of Aponte v. Olatoye , 30 N.Y.3d 693, 697, 70 N.Y.S.3d 904, 94 N.E.3d 466 [2018] ; Matter of Ortiz v. Rhea , 127 A.D.3d 665, 666, 8 N.Y.S.3d 188 [1st Dept. 2015] ). Petitioner's absence from any of the affidavits of income provides a further rational basis for denial of RFM status (see Matter of Carmona v. New York City Hous. Auth. , 134 A.D.3d 404, 405, 20 N.Y.S.3d 69 [1st Dept. 2015], lv denied 26 N.Y.3d 1114, 26 N.Y.S.3d 512, 46 N.E.3d 1065 [2016] ; Matter of Dancil v. New York City Hous. Auth. , 123 A.D.3d 442, 998 N.Y.S.2d 328 [1st Dept. 2014] ).
Petitioner waived her disability discrimination claims (under a theory of failure to reasonably accommodate) by failing to raise them at the administrative hearing (see Aponte, 30 N.Y.3d at 698, 70 N.Y.S.3d 904, 94 N.E.3d 466 ; Matter of Jenkins v. New York City Hous. Auth., Amsterdam Houses , 129 A.D.3d 432, 432, 11 N.Y.S.3d 40 [1st Dept. 2015] ). Setting aside the lack of preservation, petitioner further lacks standing to challenge the denial of the request for reasonable accommodation made by her late mother, the tenant of record (see Rosello v. Rhea, 89 A.D.3d 466, 467, 931 N.Y.S.2d 873 [1st Dept. 2011] ).
Moreover, were we to consider petitioner's claim for associational discrimination, we would find that the record shows that she effectively received the accommodation to which she would have been entitled had there been an effective request for reasonable accommodation, or had NYCHA formally engaged in an interactive dialogue aimed at reaching a reasonable accommodation (see Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 836, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014] ; see also Aponte, 30 N.Y.3d at 702, 70 N.Y.S.3d 904, 94 N.E.3d 466 [Rivera, J., concurring); that is, she received temporary residency status, which is the most she would have been entitled to as a live-in caregiver, given that her mother lived in a one-bedroom apartment (see Aponte, 30 N.Y.3d at 698, 70 N.Y.S.3d 904, 94 N.E.3d 466 ; Matter of Chun Po So v. Rhea , 106 A.D.3d 487, 488, 965 N.Y.S.2d 98 [1st Dept. 2013] ).
We have considered petitioner's remaining contentions and find them unavailing.