Opinion
2003-905 KC.
Decided July 9, 2004.
Appeal by occupant from an order of the Civil Court, Kings County (B. Scheckowitz, J.), entered April 29, 2003, granting petitioner's motion for summary judgment and denying occupant's cross motion for summary judgment dismissing the petition, deemed an appeal from the final judgment entered on April 1, 2004 awarding petitioner possession (see CPLR 5501 [c]).
Final judgment unanimously affirmed without costs.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
In response to this licensee proceeding to remove occupant from a premises formerly tenanted by his deceased mother, occupant interposed the defense that he is entitled to succeed to that tenancy as a remaining family member. Granting petitioner's motion for an order striking the defense and awarding petitioner summary judgment and a final judgment of possession, and denying occupant's cross motion for summary judgment, the court below concluded that it had no authority to consider de novo the New York City Housing Authority's project grievance determination, following a hearing, that occupant did not qualify for remaining family member status ( see New York City Hous. Auth. v. Winkler, 175 Misc 2d 1018 [App Term, 2d 11th Jud Dists 1998]). We agree and affirm.
On appeal, occupant contends that, notwithstanding the adverse determination of the project grievance, he is entitled to de novo review of his remaining family member claim based on the language of 24 CFR 966.57 (c), which provides that the determination "shall not constitute a waiver of, nor affect in any manner whatever, any rights the complainant may have to a trial de novo or judicial review in any judicial proceedings" ( see also New York City Housing Authority Management Manual ch VII, § IV [A] [6]). We need not here decide whether the federal regulation creates a right to a trial de novo where none is elsewhere granted ( see e.g. Jones v. Chester Hous. Auth., US Dist Ct, ED Pa, Newcomer, J., 93 Civ 3597, 1993 WL 332068, affd 30 F3d 1486 [3d Cir 1994]; Housing Auth. of St. Louis County v. Lovejoy, 762 SW2d 843 [Mo App 1988]) or merely preserves such rights if elsewhere granted ( see Housing Auth. of the County of King v. Saylors, 19 Wash App 871, 578 P2d 76, 79) since we find the regulation to be inapplicable to the case at bar. The regulation upon which occupant relies, 24 CFR 966.57 (c), applies only to a "complainant," defined as "any tenant whose grievance is presented to the PHA" ( 24 CFR 966.53 [b]; see also 24 CFR 966.53 [f] [defining "tenant" as an "adult person . . . (1) [w]ho resides in the unit, and who executed the lease with the PHA . . . or, if no such person . . . resides in the unit, (2) [w]ho resides in the unit, and who is the remaining head of household of the tenant family"]). An occupant seeking remaining family member status is neither a complainant nor a tenant ( Matter of Faison v. New York City Hous. Auth., 283 AD2d 353, 355-356) but a mere licensee ( Matter of Abdil v. Martinez, 307 AD2d 238, 242) whose non-tenant status is reflected in the Management Manual's provisions referring to remaining family member grievants as "claimants" rather than "complainants." Thus, the doctrine of res judicata, "applicable to quasi-judicial determinations of administrative agencies" ( New York City Hous. Auth. v. Winkler, 175 Misc 2d at 1020; see also New York City Hous. Auth. v. Velazquez, 191 Misc 2d 15, 16 [App Term, 2d 11th Jud Dists]) precludes further review of occupant's remaining family member claim ( Ryan v. New York Tel. Co., 62 NY2d 494, 500) in light of occupant's failure to demonstrate the non-identity of issues or parties or that he was denied a full and fair opportunity to contest the issue at the administrative hearing ( Jeffreys v. Griffin, 1 NY3d 34, 39).