In re App. Ealey v. N.Y.C. Hous. Auth.

Full title: IN THE MATTER OF THE APPLICATION OF MONICA EALEY, Petitioner, v. NEW YORK…

Court: Supreme Court of the State of New York, New York County

Date published: Nov 5, 2010

2010 N.Y. Slip Op. 33177 (N.Y. Sup. Ct. 2010)

Opinion

401091/10.

November 5, 2010.

Praise, for Petitioner.

Sonya M. Kaloyanides, General Counsel, NYCHA, By Carol Polis, New York NY, for Respondent.

DECISION, ORDER JUDGMENT

HON SALIANN SCARPULLA, J.:

Papers considered in review of this Article 78 Petition:

Papers Numbered

Notice of Petition and Affidavits Annexed 1 Verified Answer, Brief 2, 3

In this Article 78 petition, petitioner Monica Ealey seeks to review an administrative determination made by respondent New York City Housing Authority ("NYCHA") on March 19, 2010. NYCHA denied Monica Ealey's request to receive a lease as a remaining family member to the apartment of her late mother, Mary Ealey, the former tenant of record, who passed away on October 24, 2006. After holding a hearing on March 16, 2010, NYCHA denied Monica Ealey's claim because of her failure to maintain continuous residence in the mother's apartment and the failure to obtain written permission from NYCHA when Monica Ealey moved back in to help her ailing mother a month before her death.

At the grievance hearing, petitioner testified that she and her mother were tenants, at the subject apartment since 1998. At some time in 2004, Monica Ealey moved out and rented a separate apartment at 2080 Lafontaine Ave., Bronx, New York. In August of 2006, Mary Ealey was diagnosed with cancer, prompting Monica Ealey to move back in to care for the mother. During the one-and-a-half months, Monica Ealey lived in the apartment before Mary Ealey's death, neither notified the building's development manager in writing of Monica Ealey's return. On December 1, 2006, Monica Ealey inquired about obtaining the status of a surviving family member and a lease in her name, but was rejected.

At the hearing, Monica Ealey argued that she was not able to inform NYCHA of her return because the building management maintained very short office hours from 9 a.m. to 11 a.m., and in the midst of efforts to tend to Mary Ealye's medical needs, she did not have any opportunity to formally update the family's composition before Mary Ealye's passing. Monica Ealey further argued that she was never formally notified that her name was taken off the lease in 2004, and that NYCHA's housing file contained the most recent lease, executed in 2001, which contained Ealey's name. NYCHA's hearing officer, however, determined that despite Monica Ealey's regrettable circumstances, NYCHA's rules did not provide for her continued occupancy as a remaining family member.

Discussion

It is a well-settled rule that judicial review of administrative determinations is limited to the grounds invoked by the agency. Matter of Aronsky v Board of Educ., 75 NY2d 997 (1990). The court may not substitute its judgment for that of the agency's determination but shall decide if the determination can be supported on any reasonable basis. See Matter of Clancy-Cullen Storage Co. v Board of Elections of the City of New York, 98 AD2d 635, 636 (1^st Dept. 1983). The test of whether a decision is arbitrary or capricious is "`determined largely by whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.'" Matter of Pell v Board of Educ., 34 N.Y.2d 222, 232 (1974). An arbitrary action is without sound basis in reason and is generally taken without regard to the facts. Matter of Pell, 34 N.Y.2d at 232. The burden is "squarely on the petitioner" to demonstrate entitlement to Article 78 relief. See Matter of Che Lin Tsao v Kelly, 28 A.D.3d 320, 321 (1^st Dept. 2006); see also Miggins v City of N.Y., 286 AD2d 258 (1^st Dept. 2001).

Under NYCHA's administrative rules, specifically Ch. 4 (F)(4) and the remaining-family-member policy, reduced to writing in GM-3692(Amended) (III)(C)(3) and (IV), which are incorporated by reference into every lease, original family members who move out of the household do not automatically obtain permission for permanent occupancy by virtue of their former occupancy. They may only obtain permission for permanent occupancy if requested in writing by the tenant of record and granted by the housing manager. Further, even if a relative or a registered domestic partner is properly added to the tenant's household and is included on all affidavits of income, the relative is entitled to succession rights only if the relative joins/rejoins the tenant at least one year prior to the tenant's vacating the apartment or dying. See Daniels v New York City Housing Authority, 66 A.d.3d 579, 580 (1^st Dep't 2009); see also Pelaez v New York City Housing Authority, 56 A.D.3d 325, 325 (1^st Dep't 2008).

Here, the evidence is undisputed that Ealey moved out of her mother's household sometime in 2004 and never properly rejoined it. The fact that NYCHA did not issue an updated lease with Monica Ealey's name removed does not vitiate the fact of separate residence that Monica Ealey admittedly established at 2080 Lafontaine Avenue, Bronx, New York. Also, even if NYCHA were to overlook the requirement of written notice and approval, Monica Ealey would still not be entitled to succession rights, because she came back to live with her mother one-and-a-half months prior to the mother's death, falling short of the one-year continuous residence requirement by no fewer than ten months.¹ Therefore, NYCHA's administrative hearing determination that Monica Ealey was ineligible to succeed to Mary Ealey's apartment was made in accordance with NYCHA's administrative regulations and policy and was not arbitrary or capricious.

1 Monica Ealey's argument that Mark Popper of NYCHA's Bronx Borough Office orally assured her that she could stay in the subject apartment as long as she paid rent is not dispositive, because the doctrine of equitable estoppel is inapplicable to local and state governmental agencies, including NYCHA. See Schorr v New York City Dept. of Hous. Preserv. andDev., 10 N.Y.3d 776, 779 (2008).

In accordance with the foregoing, it is

ORDERED and ADJUDGED that the application of Monica Ealey to set aside the administrative determination issued by respondent New York City Housing Authority, dated March 19, 2010, is denied in its entirety, and this Article 78 petition is dismissed.

This constitutes the decision, order, and judgment of the Court.