Opinion
January 3, 2006.
Petitioner Valerie Barnes seeks to annul the NYC Housing Authority's ("NYCHA") administrative decision, dated January 19, 2005, which denied her request to be recognized as a remaining family-member and to provide her with a lease agreement.
Mr. Beverly Barnes became a tenant at 1191 Park Place, Apartment 3K, Brooklyn, NY (the "Apartment") in 1972 with his wife, son and daughter. Petitioner alleges that in 1990, when she was ten years old, she moved into the apartment with her Mother, Marion Barnes, in 1990. Marion and Beverly are siblings. At that time, Mr. Barnes resided with his daughter and grand-daughter, both of whom eventually moved out in July 1993. Mr. Barnes died in 1998.
Valerie, a 25 year old woman, currently resides in the Apartment with her one year-old daughter.
Following Beverly's death, Marion paid the rent. She requested by letter dated February 8, 1999 permission for herself and Valerie to remain in residence. Marion sent additional requests to the NYCHA on February 1, 2000 and January 3, 2001. The request was denied on January 14, 2001 for the stated reason that Marion did not provide Beverly's death certificate or evidence of her residence in the Apartment. However, the NYCHA's records reveal that a death certificate was in fact provided and documents were submitted showing Valerie's local public school attendance and permanent residence at the Apartment. On July 2, 2001, the NYCHA confirmed the disposition for a different reason; Beverly had never requested permission for Marion and Valerie to reside in the Apartment.
A grievance hearing was held on September 10, 2002, February 27, 2003, March 12, 2003, July 24, 2003, January 21, 2004, February 11, 2004, March 11, 2004 and November 23, 2004. A delay in the hearing occurred to allow Adult Protective Services to examine Marion, who suffers from mental illness, and determine whether she was competent to testify. She was. However, Marion withdrew her claim when she relocated to Virginia. Valerie's action proceeded. On February 9, 2005, the NYCHA's Hearing Officer denied Valerie's request. While the hearing officer acknowledged Beverly's multiple illnesses, she found that "there was no testimony that the tenant could not have telephoned or written to management requesting a home visit to discuss his relative's presence." The NYCHA rejected petitioner's argument that Beverly was incapacitated by illness and unable to request permission for her to be a resident. Indeed, petitioner's testimony was that Beverly paid his rent in person and regularly left the apartment to do errands. The NYCHA submitted into evidence Beverly's annual affidavits of income from 1989 to 1997, none of which listed Marion or Valerie as an occupant. While Beverly advised respondent that his daughter and grand-daughter moved out, he never reported that Marion and Valerie moved into the Apartment. Marion admitted to the project manager that Beverly had never requested permission for them to reside in the apartment because he feared that it would affect the amount of rent he paid.
Petitioner's complaint sets forth three causes of action: (1) that the decision is arbitrary and capricious; (2) that the decision is not supported by substantial evidence and (3) that penalty of termination is shockingly disproportionate.
The NYCHA's determination that petitioner is not a remaining family member entitled to reside in the Apartment is supported by substantial evidence. Silberfarb v Bd of Coop Edu Servs., 60 NY2d 979, 981 (1983). It also has a rational basis. Pell v Bd of Educ., 34 NY2d 222, 231 (1974).
Under the NYCHA's Management Manual, a person who wishes to succeed to an apartment as a remaining family member after the tenant of records moves out or dies must (1) have moved into the apartment lawfully; (2) have remained in the apartment continuously; and (3) be otherwise eligible for public housing in accordance with the Standards for Admission for applicants in the Housing Applications manual. NYCHA maintains that petitioner cannot qualify as a remaining family member because she did not move into Beverly's apartment lawfully.
In order to enter an apartment lawfully, a person must: (1) be a member of the original family composition of the apartment; (2) receive written permission from the project management to live in the apartment; or (3) have been born or legally adopted by the tenant family.
Neither Valerie nor Marion were ever disclosed as members of the household. Beverly never requested permission for them to reside in the Apartment. There is no evidence that he was incapable of doing so. Indeed, based on Marion's testimony, he consciously declined to do so for fear that it would increase the rent. Even if the Court accepts that Beverly was incapacitated, and Valerie was too young, Marion never requested permission to reside in the Apartment. Having never received a request, the NYCHA never granted permission for her to reside in the household. Even if the Court agrees that Marion and Valerie were obviously residing in the Apartment, the Court has no choice but to uphold this legitimate contract provision to which Beverly agreed in the February 1993 lease which he signed and to which he annually affirmed in the income statement. McFarlane v New York City Hous. Auth., 2004 NY App Lexis 9412 (1st Dept 2004).
The Court agrees that Valerie's eviction after living in the Apartment for 15 years is a harsh result particularly in these times of limited affordable housing. However, with regard to getting NYCHA permission, the Court is precluded from considering mitigating factors such as Valerie's youth when she moved into the Apartment and the length of her occupancy. McFarlane v New York City Hous. Auth, 9 AD3d 289 (1st Dept 2004). Therefore, the petition must be denied as to NYCHA's actual consent.
However, the First Department in McFarlane also allowed for implicit NYCHA consent. It stated that
One type of circumstance that could be of critical importance in establishing a right to be treated as a remaining family member despite the absence of notice or written consent, would be a showing that the Authority was aware of the petitioner having taken up residence in the unit, and implicitly approved it.
McFarlane appears to contravene the doctrine that waiver and estoppel cannot be applied to the NYCHA, a government agency. New York City Hous. Auth. v Sykes, 117 Misc 2d 293, 296 (Civ. Ct, Kings County 1982). However, this incongruence is easily explained.
This is so because the controlling statute and regulations express an overriding policy that the Public Housing Authority administering the program should have the untrammeled authority to monitor and approve who lives in its buildings, in order to ensure the overall purpose of providing decent and safe housing to low income families (see 42 USC 1437[a][1][C]). Therefore, a showing that the Authority knew of, and took no preventive action against, the occupancy by the tenant's relative, could be an acceptable alternative for compliance with the notice and consent requirements.
While petitioner's monthly payments to the NYCHA after Beverly's death do not change her status as an unauthorized occupant under the notice and consent requirement, Kolarick v Franco, 240 AD2d 204 (1st Dept 1997), they may satisfy the alternative in McFarlane when considered with other factors. In addition, there was Valerie's unchallenged testimony that on numerous occasions, maintenance workers saw her occupying the Apartment. The NYCCHA's witness testified that maintenance workers would not know who are authorized tenants and thus would not be required to report if they saw petitioner in the Apartment. Finally, there was testimony that Valerie attended school in the neighborhood, using the Apartment as her permanent address. Likewise, there was unchallenged testimony that mail, including bills, were delivered to petitioner at the Apartment.
The Court cannot predict what the NYCHA would have held had it considered this McFarlane alternative. As McFarlane was issued in July 2004 while the hearing was continuing and only six months before the February 9, 2005 decision was rendered here, the Court finds the more prudent course is to grant the petition to the extent of directing the NYCHA to consider whether the NYCHA "was aware of the petitioner having taken up residence in the unit, and implicitly approved it." Vague testimony by a NYCHA manager cannot substitute for evidence concerning what the actual maintenance workers knew or saw. Moreover, after McFarlane, the NYCHA clearly cannot hide its head in the sand regarding who resides in the Apartment when it has the authority to monitor and approve who resides in the Apartment. Accordingly, it would seem that McFarlane requires the NYCHA to demonstrate the steps it took to monitor who resided in the Apartment.
Accordingly, it is
ADJUDGED, that the petition is granted and the NYCHA is directed to proceed consistent with this decision. This constitutes the decision and judgment of this Court.