Decision, Order and Judgment In this Article 78 proceeding, petitioner Shlomo Bergman challenges a determination by the respondent New York City Housing Authority (“NYCHA”), which dismissed his grievance to succeed as a remaining family member to the apartment formerly leased to his grandmother, the deceased tenant of record Sarlotta Guttman. NYCHA in their verified answer seeks to deny and dismiss the Article 78 petition. For the reasons stated below, the petition is denied.Petitioner currently resides in the subject apartment, at 325 Roebling Street, Apartment 2C, Brooklyn, New York, an apartment in the Williams Plaza development of the NYCHA. On or about March 13, 2009, respondent’s management office received a “Request for Permanent Permission” on behalf of Ms. Guttman to allow her grandson, the petitioner, to permanently join her household. The reason for the request, as explained on page two of the application, was that petitioner “recently moved in with me to care for me and help me in my old age…He is helping me every day with my companionship from which I suffer lately. Since I live alone I have been experiencing depression and loneliness. He is also helping me administering medications” (petitioner’s exhibit C at 2). It is undisputed that management neither granted nor denied that request in writing. Notably, Ms. Guttman and petitioner did not follow up with management on the permission request. In addition, Ms. Guttman did not list petitioner as an occupant on her affidavits of income in the subsequent years before her death in 2013. Further, the parties agree that previous to the March 2009 request, Ms. Guttman’s granddaughter Esther Bergman (“Esther”) resided with Ms. Guttman in the subject apartment but moved out, leaving Ms. Guttman the sole occupant of the apartment.Following the death of his grandmother on June 25, 2013, petitioner sought to succeed the lease of the subject apartment as a remaining family member.1 On February 26, 2014, petitioner’s application for remaining family member rights to the subject apartment was denied by the property manager Juan Bello. The Project Grievance Summary prepared by Mr. Bello stated in relevant part:“Management found in the records that there was a permanent request submitted [in] March 2009. The request was never approved or disapproved by Management. There is nothing on the interview records regarding any unauthorized person living in the apartment. I informed Mr. Bergman that even though Management did not follow up properly by disproving or approving the request and the case seems to show some reasonable doubt, He will have to pursue the NYCHA Grievance procedure. At the Management Office level we cannot grant a new lease to Mr. Shlomo Bergman” (petitioner’s exhibit E).An administrative grievance hearing was thereafter held on May 4, 2017, before Hearing Officer Desiree Miller-Beauvil. Petitioner was represented by an attorney at this hearing.2 The parties agreed to submit documents into evidence and have the Hearing Officer issue her decision based on those documents without hearing any testimony. At the hearing, the grievant bears the burden of proof to demonstrate that he qualifies for a lease by meeting the Housing Authority’s requirements. To prevail, “the remaining family member claimant must clearly demonstrate that (s)he: [1] meets the standard for ‘Remaining Family Member’ status (per Section XII, A) and [2] meets the criteria for ‘Eligibility for a Lease/Occupancy of a NYCHA Apartment’ (per Sections XII, B) and [3] is paying use and occupancy” (answer exhibit A at XII[D][5][b]).By disposition dated May 30, 2017, the Hearing Officer determined that petitioner was not entitled to remaining family member status, finding:“There exists a Permanent Permission Request (Exhibit 2) that was received by management on March 13, 2009 seeking to add the Grievant to the tenant’s household; the request was not acted upon by management. According to NYCHA regulations, this inaction did not result in the Grievant being authorized to reside in the subject apartment in 2009 or thereafter. Furthermore, NYCHA regulations prohibited (due to “overcrowding”) the addition of an adult male grandchild to the family composition of the tenant since she resided in a 3 ½ room apartment containing only one bedroom.Grievant did not obtain (nor could he have obtained) the written permission of management to join the tenant’s household on a permanent basis and he did not prove that with such authorization, he resided in the apartment for at least one year prior to the tenant’s passing. Grievant is not a remaining family member as defined by NYCHA regulations” (petition exhibit B at 4)The Hearing Officer also noted that Ms. Guttman’s request would not have resulted in petitioner being added to his grandmother’s household as a remaining family member because his addition to the one bedroom apartment was prohibited by NYCHA’s occupancy standards.In a determination of status, Hearing Officer Miller-Beauvil’s ruling was approved by the NYCHA in a decision dated July 5, 2017.On November 5, 2017, petitioner commenced this Article 78 proceeding, challenging the determination denying his remaining family member grievance on the grounds that it is unlawful, arbitrary and capricious, and an abuse of discretion. Petitioner seeks an order annulling and vacating the July 5, 2017 determination and remanding the matter to the NYCHA for a determination that the grievance is sustained and directing the NYCHA to offer him a lease to the subject apartment. In addition, petitioner requests that this matter be set down for the plenary adjudication of petitioner’s additional claim for costs and attorney’s fees pursuant to CPLR §§8600 et seq. (“New York State Equal Access to Justice Act”).ContentionsPetitioner argues that NYCHA’s decision was improper because he was granted de facto permanent permission to reside at the subject apartment, as respondent neither acted upon his grandmother’s request to add him as an occupant, nor took any action to remove him. He cites the decision of the Appellate Division, First Department, in Matter of McFarlane v. New York City Housing Authority, 9 AD3d 289 (1st Dept 2004), for the proposition that this factual scenario establishes a tenant’s right to be treated as a remaining family member despite the absence of written consent from NYCHA. Specifically, petitioner relies upon the dicta in McFarlane and argues that it created an implicit-approval exception to the NYCHA’s remaining family member policy (Matter of McFarlane, 9 AD3d at 291["a showing that the Authority knew of, and took no preventative action against, the occupancy by the tenant's relative, could be an acceptable alternative for compliance with notice and consent requirements"]). Petitioner further argues that basing denial of his tenancy on overcrowding was equally improper because NYCHA had previously allowed the co-occupancy in the subject apartment of his grandmother and Esther. In light of this, petitioner surmises that NYCHA’s policies are therefore discretionary. Petitioner also maintains that the NYCHA’s occupancy standards for one-bedroom apartments violates United States Department of Housing and Urban Development (“HUD”) guidelines, state and local occupancy laws, federal law prohibiting discrimination on the basis of familial statutes, and New York’s Roommate Law.In opposition, NYCHA stresses that petitioner never received written permission to enter the apartment which is a violation of NYCHA policy. NYCHA argues that petitioner has misinterpreted the law and it is not estopped from enforcing its written permission requirement. In any event, respondent argues that if management responded to the 2009 permanent permission request, petitioner could not have received permanent permission pursuant to the Housing Authority’s Occupancy Standards, which state that a one-bedroom apartment by an adult and an adult child is overcrowded (see answer, exhibit I, “Occupancy Standard for Families”). With regard to Esther, respondent counters that the record does not describe when and under what circumstances Esther joined the subject household. Even if management should have denied permanent permission for Esther’s occupancy, that one mistake by management would not render the Housing Authority’s policies discretionary or somehow preclude management from properly following those policies in the future, respondent contends. Respondent also dismisses petitioner’s challenges to the occupancy standards.DiscussionGenerally, judicial review in an Article 78 proceeding is limited to whether the administrative determination Awas made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion@ (CPLR §7803 [3]; see Peckham v. Calogero, 12 NY3d 424, 431 [2009]; Pell v. Board of Educ., 34 NY2d 222, 231 [1974]. AAn action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts@ (Peckham, 12 NY3d at 431; see Pell, 34 NY2d at 231). AIf the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency@ (Peckham, 12 NY3d at 431; see Terrace Ct., LLC v. New York State Div. of Hous. & Community Renewal, 18 NY3d 446, 454 [2012]).Pursuant to regulations promulgated by the Department of Housing and Urban Development (“HUD”), respondent must certify annually that it has admitted persons to public housing in accordance with HUD regulations (see 42 USC §1437 et seq.; 24 CFR §960.201). HUD mandates that respondent promulgate and adhere to certain tenant selection guidelines (see 24 CFR §960.202 and §960.203). Throughout the tenancy, a tenant must (1) request approval from the Housing Authority to add any other family member as an occupant of the unit; and (2) supply any information requested by the Housing Authority or HUD pertaining to family income and composition in accordance with HUD requirements (see 24 CFR §966.4[a][l][v]; 24 CFR §960.259[a][2]). Annually, the Housing Authority must reexamine family income and composition, and make necessary adjustments (see 24 CFR §960.257[a]).The Housing Authority provides exceptions to its tenant-selection procedures, including allowing a non-tenant to become a permanent member to the tenant’s household (answer exhibit A). To permanently add a non-tenant to the household, a tenant in current occupancy must first request and obtain the written consent of the development manager (Id. at XI[B][2]). The NYCHA Manual states that a family member is not entitled to permanent permission if his or her occupancy would render the household overcrowded based on the total number of people in the household and the apartment size (Id. at XI[B][2][a][3][d]). The Manual further states that where management neither grants nor denies a permanent permission request within 60 days, it is deemed denied (Id. at XI[B][2][b][3]; see also answer exhibit C at II [showing management revised its policies in 2002 to remove provision providing permission was automatically granted if no determination was issued in a specified time period]).The Housing Authority also allows a remaining family member to take over the lease of a former tenant that has either died or moved out (answer exhibit A at XII). Such a person acquires status as a remaining family member if they enter the apartment lawfully and are in continuous occupancy for a minimum of one year from the issuance of written permission for permanent occupancy status, subject to eligibility requirements (Id.).The Court finds that the Hearing Officer’s decision was rational. Courts have repeatedly enforced the NYCHA’s written permission requirement, and have upheld as rational, determinations denying remaining family member status based upon the failure of the tenant of record to obtain permanent residency permission for the petitioner (see Matter of Aponte v. Olatoye, 30 NY3d 693, 697 [2018]; Matter of Blas v. Olatoye, 161 AD3d 562, 562 [1st Dept 2018]; Matter of Carmona v. New York City Hous. Auth., 134 AD3d 404, 405 [1st Dept 2015]; Matter of Lieder v. New York City Hous. Auth., 129 AD3d 644, 644 [1st Dept 2015]; Matter of Rahjou v. Rhea, 101 AD3d 422, 422 [1st Dept 2012]). The record shows that petitioner’s grandmother, the tenant of record, never obtained respondent’s written consent for petitioner’s occupancy.Contrary to petitioner’s contention, he was not granted de facto permission to reside in the subject apartment. Even if respondent was aware the petitioner was living in the apartment to care for his grandmother, respondent may not be estopped from denying petitioner’s grievance (see Matter of Ortiz v. Rhea, 127 AD3d 665, 666 [1st Dept 2015]). “A governmental agency cannot be estopped from discharging its statutory duties when a claimant does not meet the eligibility requirements for succession rights to the apartment, even if the managing agent acquiesced in petitioner’s occupancy” (Matter of Perez v. New York City Hous. Auth., 99 AD3D 624, 625 [1st Dept 2012]). Likewise, petitioner’s reliance on McFarlane is without merit as a subsequent Court of Appeals decision abrogated the McFarlane dicta. In Matter of Schorr v. New York City Department of Housing Preservation & Development, 10 NY3d 778, 779 (2008), the Court held that although respondent acquiesced in the petitioner’s occupancy, a governmental agency “is statutorily required to enforce the Mitchell-Lama Law and regulations regardless of any actions or acquiescence by [the management office].” As such, petitioner cannot obtain succession rights via the NYCHA’s implicit approval. Petitioner’s challenges to NYCHA’s occupancy laws are equally unavailing. The standard occupancy for a one-bedroom NYCHA apartment consists of a married couple, two adult domestic partners or a single adult with a child under six years of age. Conversely, an “overcrowded” one-bedroom apartment includes two adults who are not married or domestic partners, or a single adult with a child over six years of age. NYCHA’s determination cannot be considered an error of law, because as NYCHA points out, management would have had to deny the request made by petitioner to permanently join his grandmother’s household under its occupancy standards (see Matter of Chun Po So v. Rhea, 106 AD3d 487, 487 [1st Dept 2013] (“adding petitioner’s daughter as a permanent tenant in the household would create an overcrowding situation in violation of NYCHA’s occupancy standards and would unfairly provide a windfall to her daughter to the detriment of other potential tenants”]; see also Matter of Bashmet v. Hernandez, 87 AD3d 866, 866 [1st Dept 2011] ["NYCHA's determination that petitioner does not qualify for [remaining family member] status has a rational basis and is not affected by an error of law… [E]ven if management had given the tenant the relevant form to request permission for petitioner’s residence, such request would nonetheless have been denied based on the occupancy standards”]). Accordingly, it was rational for the Hearing Officer to conclude that petitioner’s permanent residence request did not meet NYCHA’s occupancy standards.Petitioner’s request for attorney’s fees pursuant to CPLR §8601 is denied. CPLR §8601 provides that “a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such a party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust.” The Court cannot award attorney’s fees for several reasons, the most pertinent being that petitioner is not the prevailing party in this proceeding. Moreover, NYCHA is a city agency, and is not liable for attorney’s fees under CPLR Article 86 (CPLR §§8601, 8602; Hernandez v. Hammons, 98 NY2d 735 [2002]; Knox v. New York City Dept. of Educ., 100 AD3d 486 [1st Dept 2012]).This Court has considered the remaining arguments of petitioner and finds that they are without merit.Based on the foregoing, the Court finds that NYCHA’s denial of petitioner’s grievance was neither arbitrary nor capricious. It is clear that the petitioner did not lawfully enter the household because he did not have written permission to join the household.Accordingly, it isORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed.This constitutes the decision and order of the court.Dated: September 6, 2018
