Opinion
402678/10.
Decided March 11, 2011.
Attorney for petitioner: pro se.
Attorney for respondent: New York City Housing Authority.
In this Article 78 proceeding, petitioner Steve Durante challenges the determination of respondent New York City Housing Authority ("NYCHA") denying him succession rights as a remaining family member to the public housing apartment formerly leased to his mother. Respondent has interposed an answer asserting that NYCHA's denial of petitioner's grievance is rational, supported by substantial evidence in the administrative record, and not arbitrary and capricious.
Petitioner's mother Susan Durante was the tenant of record for apartment 1C at 2-06 Astoria Boulevard in the Astoria Houses development in Long Island City. On April 30, 2009, she signed and submitted a form requesting that Development Management grant permission for petitioner to join the household permanently. The form stated in part:
No person granted permanent permission to join the household may succeed to the lease as a remaining family member unless (s)he remains in continuous occupancy for at least one year after permanent permission is granted in writing and before all tenants (lessees) vacate the apartment or die. A remaining family member must also be otherwise eligible for public housing in accordance with NYCHA's rules and regulations to succeed to a lease. If permanent permission is not granted (disapproved), you may request a grievance hearing to review the Development Manager's decision. All documents submitted and representations made in connection with permanent permission requests are subject to NYCHA's independent verification.
(Answer, exhibit C, p. 1) (boldface in original).
Susan Durante died on May 22, 2009.
On June 1, 2009, petitioner submitted a death certificate to the manager of the development (Answer, exhibit K). Petitioner was advised that he was not eligible for remaining family member status.
A grievance meeting (second step) was conducted by Office Manager Elaine Peters on May 5, 2010. Ms. Peters' summary of the meeting states:
Mr. Steve Durante was present today for RFM grievance Meeting (2nd Step). He stated that he has been in the apt since 2001. It was explained to Mr. Durante that NYCHA had no knowledge of his presence in the apartment until just prior to his mother passing. He stated that he was never added to the family composition by his parents because they feared the rent would be too high.
After careful consideration and review of the residency folder, it is the decision of this office to agree with the Development Manager and deny the Occupant's request for a NYCHA lease.
(Answer, exhibit Q).
Subsequently, petitioner requested a formal hearing before an Impartial Hearing Officer.
A hearing was held on the record before Ester Tomicic Hines, Chief Hearing Officer, on July 22, 2010. Petitioner was self-represented. David Schacher appeared as counsel for respondent NYCHA. A transcript of the hearing is attached to respondent's answer as exhibit S.
Mr. Durante testified that his parents lived in the apartment together. After graduating from college in 1997, he lived in Brooklyn for awhile. Durante stated that he started coming to the apartment frequently in 1998 and that he moved into the apartment shortly thereafter to care for his ailing parents. His father suffered a stroke and died in 2002. Petitioner remained in the apartment and cared for his mother, who had cancer, until her death in 2009.
Durante testified that he had held two jobs. He worked for the Department of Education as a substitute teacher, and he also worked for the Department of Parks and Recreation from 1997 to 2007. Durante said that he was planning to enroll in Hansville College or Brooklyn College to complete a Master's degree in physical education.
Petitioner testified that he is a very quiet tenant. He goes to church and does not take drugs. Durante submitted a letter written by City Councilman Peter Vallone on his behalf, as well as tax records to show that he was head of household.
Petitioner rested. Counsel for respondent declined to cross-examine petitioner.
Counsel for respondent called Paramjit Kaur, a housing assistant at the Astoria Houses Development, as its sole witness. A copy of the lease signed by Susan Durante, an Occupant's Affidavit of Income signed by Susan Durante, and the Tenant Data Summary showing that Susan Durante was the Head of the Household and Leaseholder were introduced into evidence. Ms. Kaur testified that petitioner was not listed anywhere on the documents as a member of the "family composition." A Lease Addendum and Rent Notice dated January 22, 2008, was entered into evidence as exhibit D. Ms. Kaur testified that the document lists all family members, but petitioner was not among them.
Ms. Kaur testified that a Permanent Permission Request for petitioner to enter the household was submitted on April 30, 2009. However, it was never approved.
Thereafter, the hearing officer issued a written decision dated August 17, 2010, finding that petitioner was not a "remaining family member" as defined by NYCHA regulations. On August 31, 2010, NYCHA approved the hearing officer's decision and disposition denying petitioner's grievance.
Upon notification that his grievance had been denied, petitioner commenced the instant Article 78 proceeding.
Discussion
"The law is well settled that the courts may not overturn the decision of an administrative agency which has a rational basis and was not arbitrary and capricious. A rational basis exists where the administrative determination is supported by substantial evidence. Substantial evidence is defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ( Goldstein v. Lewis, 90 AD2d 748, 749 [1st Dep't 1982]). Moreover, "the determination of an agency, acting pursuant to its authority and in its area of expertise, is entitled to deference" ( Nelson v. Roberts, 304 AD2d 20, 23 [1st Dep't 2003]).
The hearing officer in the underlying administrative proceeding issued the following findings and conclusions:
The testimony and evidence presented demonstrate that although the grievant may have resided in the subject apartment for an extended period in order to care for his terminally ill mother he did not have permission to reside in the household. The tenant belatedly sought permission to add the grievant [to] her household on April 30, 2009 and she passed away shortly thereafter on May 22, 2009.
The grievant is not a remaining family member as defined by NYCHA regulations. A tenant who wishes to have an additional person join the household on a permanent basis must submit a written request for permanent permission to the development Manager and receive written approval for the additional occupant(s); and the occupant(s) must reside in the subject apartment for at least one year after receiving the written permission and prior to the Tenant's death (or the tenant otherwise vacating the subject apartment). Although the Manager did not approve or disapprove the Permanent Permission form, even if the request was approved immediately on April 30, 2009, the grievant would still not succeed in his claim to residual tenancy. The tenant passed away less than one month later and less than the one year occupancy required under NYCHA's regulations.
(Answer, exhibit X, pp. 2 and 3).
Respondent exhibits a copy of the NYCHA Management Manual and an amendment thereto. The manual states:
The tenant(s) and other persons(s) listed on the authorized original family composition who remain in continuous occupancy comprise the tenant household and may occupy the tenant's apartment. Except for person(s) added by birth or legal adoption, no person may join a tenant's household, unless the tenant requests their inclusion in writing and project management approves the request in writing.
(Answer, exhibit A, p. 4, para. F(1)).
NYCHA amended its remaining family member policy in 2003. Chapter VII, Section IV. E. 1.a. was revised to limit the category of persons who may be deemed to have Remaining Family Member status (Answer, exhibit B, p. 1). The rule states in pertinent part:
Additional Persons ("One Year Rule")
Persons in the following categories may have Remaining Family Member rights if they receive the Housing Manager's permission for permanent occupancy in writing on or after November 24, 2002:
The following relatives of a tenant of record only: Husband, wife, son. . . . . . and who thereafter remain in continuous occupancy, i.e., on all Occupant's Affidavit of Income from the date of issuance of written permission for permanent occupancy from the Housing Manager for not less than one year immediately prior to the date the tenant of record vacates the apartment or dies, subject to independent verification by the Housing Manager. . . .
NOTE: Occupants who meet the preceding standards, whose initial occupancy was authorized by NYCHA and remain in continuous occupancy as required, shall be deemed "Remaining Family Members." They may be entitled to a NYCHA lease or permanent occupancy status if they and are [sic.] otherwise eligible for public housing in accordance with the admission standards for applicants contained in the Department of Housing Applications Manual.
(Answer, exhibit B, p. 5) (boldface in original).
"Housing Authority policy requires a tenant to make a written request to the manager to have a relative or other family member become either a legally authorized permanent household member or a co-tenant, a policy consistently enforced by this Court" ( Hawthorne v. New York City Housing Authority, 916 N.Y.S.2d 55, 57 [1st Dept. 2011]).
The court has read the transcript of the administrative hearing (Answer, exhibit S) and compared it carefully with the hearing officer's summary of the sworn testimony and documentary evidence (Answer, exhibit X). It is clear to the court that petitioner had a full and fair opportunity to present his case and to cross-examine NYCHA's witness at the hearing. Furthermore, the court finds that the hearing officer's written opinion reflects that the hearing officer listened to the testimony carefully, considered all of the relevant evidence, and applied the rules, regulations and policy properly to the specific facts of this matter.
Accordingly, the court finds that the hearing officer's determination that petitioner failed to meet the criteria for status as a remaining family member is rational, supported by substantial evidence in the administrative record, and not arbitrary and capricious ( Torres v. New York City Housing Authority, 40 AD3d 328, 330 [1st Dept. 2007] ("since the petitioner was not in compliance with the one-year rule, there is no basis whatsoever for holding the agency decision to be arbitrary and capricious'"); see also Abreu v. New York City Housing Authority East River Houses, 52 AD3d 432 [1st Dept. 2008]; Pelaez v. New York City Housing Authority, 56 AD3d 325 [1st Dept. 2008]).
For the above reasons, the court hereby denies petitioner's request for relief under Article 78 of the CPLR and dismisses the proceeding in its entirety.
The foregoing constitutes the decision and order of the court.