Opinion
Index No.: 403131/11
05-09-2012
In the Matter of the Application of Herbert Lofton, Petitioner, v. New York City Housing Authority, Respondent.
DECISION, ORDER
AND JUDGMENT
Present: HON. ARLENE P. BLUTH
Upon the foregoing papers, it is ORDERED and ADJUDGED that this Article 78 petition is denied and the proceeding is dismissed.
Petitioner, who is representing himself, commenced this Article 78 proceeding challenging respondent New York City Housing Authority's (NYCHA) determination of status dated August 3, 2011 which approved the hearing officer's July 1 8, 2011 decision denying petitioner's remaining family member claim to apartment 911 at 60 Avenue D in Manhattan. Petitioner's mother, Dorothy Lofton, was the tenant of record of the subject apartment until her death on November 23, 2009. Respondent opposes the petition.
Under NYCHA regulations, an individual who seeks succession rights to a NYCHA tenancy as a remaining family member must lawfully enter the apartment by obtaining the written permission of NYCHA and must reside in the apartment for not less than one year after the lawful date of entry and prior to the date the tenant of record vacates the apartment or dies.
Here, petitioner admits that (1) he was a former household member who moved out of the household many years ago and never received permission from NYCHA to return, and (2) his mother, the tenant of record, never requested or received N YCHA's permission for petitioner to join her household. "It is true that 1 lacked written permission to join the houschold" (petitioner's aff. in reply, sworn to March 21, 2012, para. 2). Nevertheless, petitioner asserts that he is entitled to succeed to his mother's public housing lease due to mitigating circumstances, specifically, her "declining health and mental impairment compromised her ability to follow through with NYCHA to add me to the lease". He further claims that the hearing officer's failure to "take into account [his] mother's condition was arbitrary and capricious" (Petition, para, 3),
In reviewing an administrative agency's determination as to whether it is arbitrary and capricious under CPLR Article 78, the test is whether the determination "is without sound basis in reason and... without regard to the facts" (Matter of Pell v Board of Education, 34 NY2d 222, 23 1 [1974]), Moreover, the determination of an administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record" (Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of New York Div. of Hons. & Community Renewal, 46 A.D3d 425, 429 [1st Dept 2007], aff'd 11 NY3d 859 [2008]).
The hearing officer's determination that petitioner is not a remaining family member was amply supported by the testimony and evidence presented at the hearing, and set forth in her July 18, 2011 decision. At the hearing, NYCHA introduced, inter alia, Ms. Lofton's annual income affidavits for 2000 through 2008 wherein she affirmatively stated that she was the sole occupant of the apartment for each of those years. Petitioner testified, on cross-examination, that he assisted his mother in completing those annual affidavits.
Petitioner further testified that his mother asked her home health care attendant to submit documentation to Management so that he could be added to his mother's household, that his mother did not retain copies of this documentation, and that neither he nor his mother received any response from Management, After considering all the testimony, the hearing officer specifically found that petitioner tailed to establish that either he or his mother requested or received written permission for him to join his mother's household.
Despite petitioner's testimony that he returned to the apartment in 2002, the hearing officer found that petitioner never informed Management that he had returned to live in the subject apartment. The hearing officer rejected petitioner's assertion that petitioner's presence in the apartment during maintenance repairs should have put. Management on notice that he was residing in the subject apartment with his mother. To the extent that petitioner now suggests that he is entitled to remaining family member status because NYCHA knew of and implicitly approved petitioner's occupancy, that assertion lacks merit; a government agency cannot be estopped from complying with its legal obligations when a claimant, '"does not meet the eligibility requirements for succession rights to the apartment" even if the managing agent "acquiesced in petitioner's occupancy"(see Schorr v New York State Div. of Hons. Pres. & Dev., 10 NY3d 776, 857 NYS2d 1 [2008]).
Finally, this Court lacks the authority to consider mitigating circumstances, such as Ms. Lofton's mental or physical health before she died, or potential hardship to petitioner, such as that petitioner would be homeless without this apartment (reply aff., sworn to March 21, 2012), as a basis for annulling N YCHA's determination (see Guzman v NYCHA, 85 AD3d 514, 925 NYS2d 59 (1st Dept 201 1).
Based on the evidence presented at the hearing, it is undisputed that petitioner did not lawfully enter the apartment by obtaining the written permission of NYCHA and that Ms. Lofton did not even list petitioner as an occupant of the apartment on her 2000 through 2008 income affidavits. Accordingly, NYCHA's determination denying petitioner remaining family member status was.supported by a rational basis, and not arbitrary or capricious, (Aponte v New York City Hons. Auth., 48 Al)3d 229, 850 NYS2d 427 (1st Dept 2008) [denial of grievance because written permission had not been given for petitioner to return to apartment not arbitrary; evidence included income affidavits indicating deceased was sole occupant]),
Accordingly, it is ORDERED and ADJUDGED that this Article 78 petition is denied and the proceeding is dismissed.
This is the Decision, Order and Judgment of the Court.
Dated: May 9, 2012
New York, New York
______________________
HON. AREENE P . BLUTH , JSC