New York Family Law Blog
A New York Family Lawyer said that, pro se petitioner brings this Article 78 proceeding and seeks a judgment reversing respondent New York City Housing Authority’s (“respondent” or “Housing Authority”) denial of her application to open her default for failing to appear at her remaining family-member grievance hearing. Petitioner claims she has succession rights for Apartment 2D at 1149 229th Drive North, Bronx, New York (Premises), which was previously leased to her deceased mother. Petitioner defaulted in appearing for her remaining-family-member grievance hearing and, following an inquest, the Housing Authority determined that petitioner did not qualify as a remaining family member. The Housing Authority denied petitioner’s application to open her default because she failed to explain her delay in making the application and due to her delinquency in use and occupancy rental payments. Petitioner challenges this determination. Respondent opposes.
The Housing Authority is a corporate governmental entity created to build and operate low-income housing in New York City. Since the federal government funds and regulates public housing, the Housing Authority must annually certify to the Department of Housing and Urban Development (HUD) that it has admitted individuals and families in accordance with HUD regulations. HUD mandates that the Housing Authority regularly monitor the composition and income of each family that has been admitted into public housing. Tenant families also have corresponding obligations to request respondent’s approval before adding any family members as occupants of a unit, and to supply any information necessary when the Housing Authority conducts examinations of family income and composition.
A New York Custody Lawyer said that pursuant to Housing Authority regulations, there are two exceptions to its formal tenant selection process where a tenant of record can lawfully add “authorized family members” to live in their unit. The first is where the Housing Authority allows another individual to become a permanent member of the tenant’s household. To add a person to the household, the tenant of record must obtain the written consent of the building development manager. The second exception allows a remaining- family -member to take over a lease if the tenant of record either moves or dies. To qualify under this exception, the remaining-family-member must have moved into the apartment lawfully, remained in the apartment continuously, and be eligible for public housing. Lawful members of a tenant’s household include the original tenant family, a person born to the tenant of record or to an authorized permanent family member, a person legally adopted by or judicially declared to be the ward of the tenant of record or an authorized family member, or a person who receives written permission to reside in the apartment permanently. In each instance, the person claiming remaining- family -member status must have become an authorized family member of the tenant household and must have remained in the apartment continuously from their date of entry.
A Nassau County Family Lawyer said that, on July 11, 2003, the Housing Authority revised its remaining-family-member policy regarding any requests for permanent occupancy that were either pending or made on or before November 24, 2002. The revised policy provides that certain relatives of the tenant of record “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 [and they] thereafter remain in continuous occupancy, i.e., on all [of an] Occupant’s Affidavits of Income from the date of the 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 from the Housing Manager.”
The Housing Authority provides a grievance procedure to determine if an occupant qualifies as a remaining-family-member. First, the grievant must meet with the development manager to discuss the claim. If the development manager does not offer the grievant a lease, he must submit the grievant’s file to the District Office for further review. If, after review, the District Office denies the grievant’s request, but determines the grievant has made some showing that she could qualify for relief, the grievant is given the opportunity to request a formal hearing. The Housing Authority will then notify the grievant of a hearing date before an impartial hearing officer. The notice also informs the grievant of her right to appear in person, have witness testimony and be represented by counsel. After the hearing, the presiding officer determines whether the grievant should be granted a lease to the apartment as a remaining- family-member.
Finally, a Staten Island Family Lawyer said members of the Housing Authority’s Board review the hearing officer’s decision and make a final determination. The deceased mother began living in the Premises in or around August 18, 1961. During this time, she lived with her husband and their five children, including petitioner. Over time, her husband passed away and all of the children moved out. Petitioner moved out in 1977. Moreover, the NYCHA Affidavits of Income for the Premises from July 15, 1999 through June 7, 2005 list Ms. Campbell as the sole occupant. Respondent’s Exhibit D. When Ms. Campbell passed away on November 23, 2005, she was still listed as the Premises’ only occupant. As of February 16, 2006, one of petitioner’s brothers was living in the Premises with his nieces. He informed the Housing Authority that he would be moving out by the end of the month. In or around March 3, 2006, petitioner wrote the Housing Authority stating that since she and her two children had been living at the Premises for some time, she wanted a new lease on the ground that she qualified as a remaining- family -member.
Pursuant to Housing Authority regulations, on March 15, 2006, petitioner met with the Housing Manager. Petitioner claimed she qualified as a remaining-family-member because she was an original member of the tenant family who moved back in when her mother got sick. The Housing Manager denied petitioner’s remaining family member request both because the deceased mother was the only listed tenant of record for the Premises and had never made a formal request to add petitioner to the household. Id. On March 21, 2006, the Housing Authority sent petitioner a letter explaining that she was entitled to an informal grievance hearing with the Bronx Borough Management Office and that she may submit any further documentation to that office in support of her remaining family member claim.
In a letter dated September 28, 2006, respondent notified petitioner that her formal hearing would take place on October 31, 2006 at 11:00 a.m. In this letter, the Housing Authority notified petitioner that she “may appear in person with witnesses and be represented by counsel or other representative of your choice. If you desire legal representation and cannot afford a lawyer, it is suggested that you contact one of the agencies which provide free legal services.” Respondent also served petitioner with a copy of its affirmative defenses and counterclaims as well as copies of the procedures which govern the hearing.
A Bronx Order of Protection Lawyer said that, in September 2007, the Housing Authority commenced a summary holdover proceeding against petitioner in Bronx County Civil Court. Petitioner failed to appear for a hearing in September 2007, and an inquest was held before Civil Court Judge. In a decision dated December 5, 2007, Judge granted a final judgment of possession of the Premises in favor of the Housing Authority. Respondent’s Exhibit BB. On April 17, 2008, the court issued a warrant of eviction. Respondent’s Exhibit AA. On May 20, June 5 and June 12, 2008, petitioner moved by Order to Show Cause, for an extension of time to stay the eviction. Each request was denied. On July 2, 2008, petitioner again moved, by Order to Show Cause, for an extension of time to stay the eviction. Once again, the Judge denied the motion after petitioner failed to appear. On July 28, 2008, the Marshal executed the warrant of eviction and petitioner was evicted from the Premises. Respondent’s Exhibit DD. On August 1, 2008, petitioner again moved, by Order to Show Cause, to restore to her possession of the Premises. In a decision dated August 4, 2008, the Judge denied the motion.
The issue in this case is whether the judgment of NYCHA reversing respondent’s denial of her application to open her default for failing to appear at her remaining family-member grievance hearing.
A court reviewing an Article 78 proceeding must judge the propriety of an administrative action solely on the reasons cited by the administration. Such an action must be upheld unless it “shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law.” CPLR section 7803 states that the following questions may be raised in an Article 78 proceeding: “Whether a determination was made in violation of lawful procedure, was effected by error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.”
In order to vacate a default in an Article 78 proceeding, a petitioner must demonstrate both a reasonable excuse for the default and a meritorious claim. Here, petitioner has neither demonstrated a reasonable excuse for failing to appear at her hearing nor a meritorious remaining-family-member claim. Petitioner contends that she did not appear for her formal grievance hearing because she was at OLM Hospital due to difficulty breathing. To date, petitioner has not offered any documentary evidence to support this assertion. Petitioner further claims that she called “250 Broadway” to alert respondent of her predicament. However, petitioner once again fails to offer any evidence in terms of when she made the call and/or who she spoke with to back up this assertion.
Moreover, petitioner also has not presented any proof evidencing a meritorious remaining-family-member claim. Both prior to and following her mother’s death, petitioner failed to get permission from the Housing Manager to reside in the Premises. She was not listed as a tenant on any of the Premises Affidavits of Income filed between 1999 and 2005. Therefore, the decision by Hearing Officer Pannell to deny petitioner’s request to vacate her default was neither arbitrary nor capricious. (denial of remaining family member claim affirmed where, although petitioner was a member of the original tenant family no affidavits of income for four years leading up to her parents vacator of premises listed her as an occupant); (where petitioner not in compliance with one-year rule, no basis to hold that NYCHA’s decision to deny remaining family member claim was arbitrary or capricious); (Housing Authority’s determination that petitioner was not remaining family member entitled to succession rights of subject apartment neither arbitrary nor capricious where record showed, inter alia, that deceased tenant’s affidavits of income showed that she was sole occupant of apartment): (Housing Authority’s denial of petitioner’s application for remaining family member status affirmed and held as neither arbitrary nor capricious where, inter alia: respondent did not give tenant of record permission to add petitioner to household; petitioner never obtained written permission from housing manager to join household; affidavits of income for years petitioner allegedly lived in apartment listed tenant as sole occupant; Housing Assistant testified that prior to tenant’s death he never requested for anyone else to join household).
Accordingly, it is ordered and adjudged that the petition is denied and the proceeding is dismissed. This constitutes the decision and judgment of the Court
If you have grievance with the NYCHA, seek the assistance of a Bronx Family Attorney and Bronx Order of Protection Attorney at Stephen Bilkis and Associates.