Opinion
100873/2016
11-16-2016
In the Matter of the Application of Oswald Sealy, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. New York City Housing Authority, Respondent.
Petitioner: Oswald Sealy pro se For Defendant: NYC Housing Authority 250 Broadway, 9th FL New York, NY 10007
Petitioner: Oswald Sealy pro se For Defendant: NYC Housing Authority 250 Broadway, 9th FL New York, NY 10007 Arlene P. Bluth, J.
Petitioner's request that this Court overturn respondent's determination that denied him succession rights as a remaining family member to an apartment formerly leased to his deceased wife is hereby transferred to the Appellate Division, First Department.
Background
This proceeding arises out of pro se petitioner's claim that he is entitled to succession rights to his late wife's apartment located in public housing operated by respondent.
Petitioner claims that he has been living at 269 Central Avenue, Apt. 2B, Brooklyn, NY (the "Premises") for 20 years. When his wife Brenda passed away in 2015, petitioner asserts that he asked respondent that he be added to her lease or if he could file a grievance to enable him to continue living at the Premises. Petitioner also claims that his daughter was named on the lease at one point in the last 20 years, but eventually had her named removed. Petitioner claims that at the hearing his daughter explained that she was removed from the hearing because she had a misdemeanor conviction and was concerned that her presence on the lease might hinder petitioner's chances of retaining the lease. Petitioner contends that he is unable to afford rent at a new place if he were forced to move. Petitioner also requests that he be moved to a smaller apartment.
Respondent asserts that a person can be added to the lease with written permission and that tenants are reminded of this policy on an annual basis. In the absence of this permission, no other person is permitted to live in the apartment. Respondent also requires tenants to fill out an affidavit of income annually in order to comply with the regulations promulgated by the United States Department of Housing and Urban Development ("HUD"). Respondent also maintains a remaining family member policy, which provides that in certain circumstances, a remaining family member may take over the former tenant's lease when the original tenant moves or passes away. Part of this policy requires the occupant to be listed on the housing application or to be granted management's written permission to permanently move in. Further, at the time the occupant seeks to take over the lease, he or she must have lived in the apartment for one year after the date of lawful entry and have lived there for at least a year before the date the tenant vacates the apartment.
Respondent argues that while petitioner's daughter, Cynthia, was given written permission to live in the apartment early in Brenda's tenancy, she vacated the Premises in 2005. Respondent also asserts that petitioner was not listed in Brenda's income affidavits submitted in 2014 and 2015 although Cynthia was listed and crossed off in 2014.
After Brenda passed away, respondent claims that petitioner approached the property manager at the Premises, who concluded that petitioner did not qualify as a remaining family member because he had not obtained the required permission to join the household. Respondent then claims that petitioner attended another meeting on October 26, 2015 where the borough manager upheld the decision of the property manager denying petitioner's request. Respondent claims that an independent hearing officer conducted a hearing on petitioner's request on April 5, 2016 (after Cynthia had acknowledged she would not seek to succeed Brenda's tenancy via letter dated January 21, 2016).
At the hearing, respondent claims that petitioner asserted that he had lived with Brenda since she moved into the apartment in 1995 and was always told by Brenda to not worry about his inclusion on her lease. Petitioner claimed that Brenda had a meeting with management about adding his name to the lease, but that he was not present at this meeting and did not know the result of this meeting. Respondent claims that petitioner admitted he knew he was not on the lease, but stressed that he paid rent on time. After the hearing, the hearing officer rejected petitioner's claim and found that there was insufficient evidence of Brenda's alleged attempt to add petitioner's name to the lease in 1996.
Discussion
In an article 78 proceeding, "the issue is whether the action taken had a rational basis and was not arbitrary and capricious" (Ward v City of Long Beach, 20 NY3d 1042, 1043, 962 NYS2d 587 [2013] [internal quotations and citation omitted]). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (id.). "If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable" (id.). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231, 356 NYS2d 833 [1974]).
"Where an Article 78 petition raises an issue respecting whether an administrative hearing determination is supported by substantial evidence, the court in which the action is commenced must transfer the proceeding to the Appellate Division" (Johnson v Ward, 124 AD2d 466, 467, 507 NYS2d 852 [1st Dept 1986], citing CPLR 7804[g]).
"As a pro se litigant, the court must construe petitioner's pleadings liberally" ( Ward v NYC Human Resources Admin., 2011 WL 6297967, 2011 NY Slip Op 33162 (U) (Trial Order) [Sup Ct, NY County 2011] citing Pezhman v City of New York, 29 AD3d 164, 168, 812 NYS2d 14 [1st Dept 2006]).
Respondent claims that transfer to the Appellate Division is not required because petitioner does not dispute that his name was never listed on the lease and, therefore, there is no substantial evidence issue. However, that does not end the Court's inquiry. Petitioner claims that he moved in with his wife at the inception of the lease and has lived continuously at the Premises for over 20 years and provided, at oral argument without objection from respondent, a copy of his marriage certificate which indicates that he married Brenda in 1973. Respondent's management manual provides that "the tenant . . . and other persons listed on the Housing Application and authorized to reside in the apartment at initial move-in, comprise the original tenant family and may occupy the apartment, provided, among other things they remain in continuous occupancy" (affirmation of respondent, exh A). Brenda's lease provides that the Premises were to be her "only residence and shall be used solely as a residence for the Tenant and the members of the Tenant's household (i.e., those named in the signed application . . ." (id. exh C, ¶ 5).
Critically, the hearing officer's findings failed to address whether respondent was listed on Brenda's housing application and respondent failed to submit a copy of the application in this proceeding. At the time Brenda filled out the housing application, she had been married to petitioner for two decades and may or may not have listed his name on the housing application. Because respondent's manual and Brenda's lease refer to this initial housing application, there is a question whether the hearing officer's decision was supported by substantial evidence. If petitioner's name was on the application, then he would have been a part of the original tenant family and would have been authorized to occupy the apartment for the last 20 years; he would not have had to "add' his name to the lease because he would have already been authorized to live there.
Further, the Court of Appeals has held that the failure to file an income affidavit is not dispositive when considering a succession claim (see Murphy v New York State Div. of Hous. and Community Renewal, 21 NY3d 649, 654, 977 NYS2d 161 [2013]). The Murphy court noted that succession's "goal is to facilitate the availability of affordable housing for low-income residents and to temper the harsh consequences of the death or departure of a tenant for their traditional and non-traditional family members" (id. at 653). "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 v New York City Hous. Auth., 9 AD3d 289, 291, 780 NYS2d 135 [1st Dept 2004]). "[A] showing that the Authority knew of, and took no preventive action against, the occupancy by tenant's relative, could be an acceptable alternative for compliance with the notice and consent requirements" (id.).
Considering the principles describe above, the failure to inquire about or to consult Brenda's housing application, which could shed light on respondent's knowledge of petitioner's presence in the Premises, raises a question regarding whether the hearing officer's decision was supported by substantial evidence.
Accordingly, it is hereby
ORDERED that, pursuant to CPLR 7804(g), the application by petitioner seeking to vacate and annul a determination by respondent is respectfully transferred to the Appellate Division, First Department for disposition pursuant to CPLR 7804(g); and it is further
ORDERED that respondent is directed to serve a copy of this order with notice of entry upon the County Clerk, who is respectfully directed to transfer the file to the Appellate Division, First Department.
This is the Decision and Order of the Court. Dated: November 16, 2016 New York, New York ARLENE P. BLUTH, JSC