Opinion
111665/07.
January 13, 2010.
DECISION, ORDER and JUDGMENT
Pursuant to Article 78 of the Civil Practice Law and Rules, Petitioner Vernall Degraffenreid challenges the determination of the New York City Housing Authority (NYCHA) that he does not qualify to succeed to his mother's public housing lease as a remaining family member. The NYCHA found Petitioner ineligible as a remaining family member due to his refusal to relocate to a smaller apartment as required by NYCHA policy.
Petitioner's mother, Annie Degraffenreid, was the tenant of record at 277 West 127th Street, Apartment 4H, in the St. Nicholas Houses in Manhattan. The apartment has five rooms and three bedrooms. The lease provides that the tenant agrees to abide by the applicable laws, regulations, and to transfer to an appropriately sized apartment consistent with NYCHA regulations based on family composition (Answer, Ex. E).
Petitioner joined the household as an authorized occupant of Apartment 4H on September 4, 2001. Annie Degraffenreid died on August 11, 2008, leaving Petitioner as the only authorized occupant of the apartment.
On September 15, 2008, Petitioner requested remaining family member status, which would permit him to receive a lease in his own name. On November 24, 2008, Petitioner met with the development Housing Manager, and was told he would be required to transfer to a smaller apartment to be eligible for a lease. Petitioner refused a transfer, and his request for a lease was denied.
In October 2008, Petitioner submitted a Permanent Permission Request form seeking permission for his adult son Jamar to reside in the apartment as a family member; permission was denied in December 2008. In January 2009, Petitioner submitted a Permanent Permission Request form seeking permission for his adult son Kamal to reside in the apartment as a family member; permission was denied in March 2009. In both cases, permission was denied because Petitioner was not the named tenant on the lease.
Petitioner appealed NYCHA's denial of his request for a lease as a surviving family member to the Manhattan Borough Management Office, which affirmed the Housing Manager's denial. Petitioner appealed this determination to the NYCHA Office of the Impartial Hearings, which denied his grievance after a hearing, finding that Petitioner failed to satisfy the requirements to show his entitlement to a lease as a remaining family member, including the requirement that he move to an appropriate sized apartment (Answer, Ex. T). This Article 78 petitioner ensued.
The standard of review for an Article 78 proceeding is whether the agency determination was arbitrary or capricious or affected by an error of law (Matter of Colton v. Berman, 21 NY2d 322). The NYCHA has adopted occupancy standards as required by federal regulation ( 24 C.F.R. §§ 960.257 [a] [c]). The Department of Housing Applications Manual lists the appropriate size apartments for families in the Public Housing Program (Chapter V[B][1]). Three-bedroom apartments are appropriate only for five person families and some four person families. An appropriate size apartment for a single person family is either a "zero" bedroom (studio) apartment or a one-bedroom apartment. NYCHA's Management Manual states that "if a remaining family member is determined eligible for an Authority lease, (s)he must transfer to an apartment of an appropriate size" (Chapter IV-Occupancy, Subdivision IV-Changes In Family Composition, J[1]).
Here, Petitioner was the sole occupant of record in Apartment 4H when his mother died. Petitioner may have been entitled to a lease for a NYCHA apartment as a remaining family member, but he was not entitled to the three bedroom apartment occupied by his mother, and he did not become entitled to the apartment by inviting other family members to fill the empty bedrooms. NYCHA's determination was rational and in accordance with applicable policies and regulations. Therefore, it hereby is
ORDERED and ADJUDGED that the petition is denied, and the proceeding is dismissed.