Cruz v. N.Y.C. Hous. Auth. (In re Figueroa)
| Decision Date | 21 July 2016 |
| Citation | 2016 N.Y. Slip Op. 05619,35 N.Y.S.3d 338,141 A.D.3d 468 |
| Parties | In re Arielle FIGUEROA, Petitioner–Respondent, Aeromyz A. Cruz, Petitioner, v. NEW YORK CITY HOUSING AUTHORITY, Respondent–Appellant. |
| Court | New York Supreme Court — Appellate Division |
141 A.D.3d 468
35 N.Y.S.3d 338
2016 N.Y. Slip Op. 05619
In re Arielle FIGUEROA, Petitioner–Respondent,
Aeromyz A. Cruz, Petitioner,
v.
NEW YORK CITY HOUSING AUTHORITY, Respondent–Appellant.
Supreme Court, Appellate Division, First Department, New York.
July 21, 2016.
David I. Farber, New York (Seth E. Kramer of counsel), for appellant.
Arielle Figueroa, respondent pro se.
TOM, J.P., ACOSTA, RICHTER, MANZANET–DANIELS, GESMER, JJ.
Judgment, Supreme Court, New York County (Peter H. Moulton, J.), entered May 20, 2015, granting the petition to annul respondent's determination, dated September 10, 2013, which dismissed petitioner's
remaining family member grievance for failure to pay use and occupancy, and directing respondent New York City Housing Authority (NYCHA) to process petitioner's grievance, affirmed, without costs.
The article 78 court and this Court may review NYCHA's actions in this case to determine whether the agency failed to perform a legal duty, or whether its determination was 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[1], [3] ). An agency action is arbitrary and capricious “when it is taken without sound basis in reason or regard to the facts” (Matter of Peckham v. Calogero, 12 N.Y.3d 424, 431, 883 N.Y.S.2d 751, 911 N.E.2d 813 [2009] ). In reviewing an agency's application of its own regulations, courts “ ‘must scrutinize administrative rules for genuine reasonableness and rationality in the specific context presented by a case’ ” (Matter of Murphy v. New York State Div. of Hous. & Community Renewal, 21 N.Y.3d 649, 654–655, 977 N.Y.S.2d 161, 999 N.E.2d 524 [2013] quoting Kuppersmith v. Dowling, 93 N.Y.2d 90, 96, 688 N.Y.S.2d 96, 710 N.E.2d 660 [1999] ).
The NYCHA Management Manual requires that a remaining family member grievant must remain current in use and occupancy to pursue the grievance (NYCHA Management Manual, ch. 1, subd XII[D][2][b] ). This Court has upheld that requirement (Matter of Garcia v. Franco, 248 A.D.2d 263, 265, 670 N.Y.S.2d 436 [1st Dept.1998], lv. denied 92 N.Y.2d 813, 680 N.Y.S.2d 906, 703 N.E.2d 764 [1998] ). However, in this case, NYCHA's application of that rule to petitioner, and its resulting dismissal of her remaining family member grievance, was arbitrary and capricious. NYCHA failed and refused to recalculate use and occupancy based on petitioner's income, notwithstanding that the NYCHA Management Manual requires that it do so, during the pendency of a remaining family member grievance, in order for it to determine use and occupancy as the lower of the tenant of record's rent or the rent rate based on the income of the remaining occupant (Manual, at ch. 1, subd XII[D][2][b] ).1 NYCHA also failed and refused to provide petitioner with information and documents necessary for her to apply for funds to pay the arrears in use and occupancy. As a result, it was impossible for petitioner to meet the condition precedent to a hearing.
This case is distinguishable from our decision in Garcia, since, there, NYCHA staff had offered to, and did, assist a remaining family member grievant in preparing an application to the Department of Social Services for financial assistance to
pay use and occupancy arrears (248 A.D.2d at 264, 670 N.Y.S.2d 436 ). In contrast, here, there is no evidence that NYCHA ever offered to or did assist petitioner in her efforts to obtain financial assistance to pay use and occupancy arrears. NYCHA and the dissent assert that, at the proceedings before the NYCHA Hearing Officer, petitioner did not submit documentation of her claims that NYCHA staff: (1) declined to recalculate the use and occupancy based on her income, as the NYCHA Manual requires; (2) refused to provide her with documentation necessary for her to obtain financial assistance (including the exact sum due); and (3) refused to accept partial
payment. However, NYCHA did not dispute those claims before the Hearing Officer, who included these facts in her decision, but then overlooked them in dismissing petitioner's grievance. Accordingly, NYCHA's actions in this case placed petitioner in a “ ‘Catch–22’ situation” (Garcia, 248 A.D.2d at 264, 670 N.Y.S.2d 436 ; see also Matter of Aponte v. Olatoye, 138 A.D.3d 440, 443, 30 N.Y.S.3d 29 [1st Dept.2016] ), such that she could not proceed with her grievance hearing without paying use and occupancy, but she could not pay use and occupancy without information and documentation from NYCHA, and could not obtain a recalculation of use and occupancy based on her income, even though the NYCHA Management Manual requires this. The Hearing Officer's failure to consider these facts made the dismissal of petitioner's grievance arbitrary and capricious.
This Court appreciates NYCHA's efforts to fulfill its important mandate to provide decent, safe, and sanitary housing for low-income families in New York City, and its authority to promulgate and carry out standards and processes in keeping with federal law for determining eligibility for such housing (Public Housing Law § 2 ; 24 CFR § 960.202 [a] ). However, here, the result of NYCHA's rigid application of one rule while failing to follow others had the result of denying a hearing to a young single parent who alleges she lived much of her life in the subject apartment and whose child has allegedly always lived there. Assuming she proves her claims at the hearing, and meets income and other reasonable criteria, this result would do little to fulfill the agency's mandate. As the Court of Appeals has recently recognized, succession rules serve the statutory purpose of subsidized housing by “facilitat[ing] the availability of affordable housing for low-income residents and ... temper[ing] the harsh consequences of the death or departure of a tenant for their ... family members” (Matter of
Murphy v. New York State Div. Of Hous. & Community Renewal, 21 N.Y.3d at 653, 977 N.Y.S.2d 161, 999 N.E.2d 524 ).2
The article 78 court need not have reached the due process issue, since NYCHA had already determined that petitioner was entitled to a hearing on her grievance, but denied it solely because she failed to pay use and occupancy.
Although the merits are not before us, we will address them because the dissent has done so. From the record on this appeal, it appears that petitioner has made a prima facie “reasonable showing” that she resided in the subject apartment with NYCHA's knowledge, and may, therefore, qualify for remaining family member status (Matter of Henderson v. Popolizio, 76 N.Y.2d 972, 974, 563 N.Y.S.2d 733, 565 N.E.2d 482 [1990] ). As this Court has previously held, “While estoppel is not available against a government agency engaging in the exercise of its governmental functions ... NYCHA's knowledge that a tenant was living in an apartment for a substantial period of time can be an important component of the determination of a subsequent [remaining family member] application” (Matter of Gutierrez v. Rhea, 105 A.D.3d 481, 485, 964 N.Y.S.2d 1 [1st Dept.2013], lv. denied 21 N.Y.3d 861, 971 N.Y.S.2d 751, 994 N.E.2d 842 [2013] ; see also Henderson, 76 N.Y.2d at 974, 563 N.Y.S.2d 733, 565 N.E.2d 482 ; Matter of
McFarlane v. New York City Hous. Auth., 9 A.D.3d 289, 291, 780 N.Y.S.2d 135 [1st Dept.2004] ). The Court of Appeals, citing the NYCHA Management Manual, has held that a person who makes a “reasonable showing” of residency in a NYCHA unit with a family member for a substantial period of time with NYCHA's knowledge or permission is entitled to a hearing on remaining family member status (Henderson v. Popolizio, 76 N.Y.2d at 974, 563 N.Y.S.2d 733, 565 N.E.2d 482 citing NYCHA Management Manual, ch. VII, subd E[1][a]; see also Matter of Russo v. New York City Hous. Auth., 128 A.D.3d 570, 571, 10 N.Y.S.3d 49 [1st Dept.2015] [noting that certain circumstances may relieve a remaining family member claimant of the requirement of written consent to occupancy]; Matter of McFarlane, 9 A.D.3d at 291, 780 N.Y.S.2d 135 [NYCHA's knowledge that a remaining family member claimant has lived in the unit for a substantial period of time without written permission is an important component of determination of remaining family member status] ). Indeed, the Manual specifically cites “ ‘[e]ntries in the tenant folder that permission to reside in the household was requested ...’ ” as
an example of a “reasonable showing” that a person is residing in NYCHA housing with NYCHA's knowledge or permission (Henderson, 76 N.Y.2d at 974, 563 N.Y.S.2d 733, 565 N.E.2d 482 quoting NYCHA Management Manual, ch. VII, subd E[1][b][1] ).
Petitioner's claim in this matter is virtually identical to that of the petitioner...
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