Evans v. Franco

• Decision Date: 15 January 1998
• Citation: 246 A.D.2d 377,668 N.Y.S.2d 26
• Parties: , 1998 N.Y. Slip Op. 221 In re Application of Louis EVANS, Petitioner-Respondent, For a Judgment, etc., v. Ruben FRANCO, as Chair of the New York City Housing Authority, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 26

668 N.Y.S.2d 26

246 A.D.2d 377, 1998 N.Y. Slip Op. 221

In re Application of Louis EVANS, Petitioner-Respondent For a Judgment, etc., v. Ruben FRANCO, as Chair of the New York City Housing Authority, Respondent-Appellant.

Supreme Court, Appellate Division,

First Department.

Jan. 15, 1998.

Edward Josephson, for Petitioner-Respondent.

Joan Pannell, for Respondent-Appellant.

Before MILONAS, J.P., and ROSENBERGER, RUBIN, WILLIAMS and COLABELLA, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered July 29, 1996, directing the New York City Housing Authority ("NYCHA") to reinstate petitioner-respondent's Section 8 rent subsidy as of December 11, 1995, unanimously reversed, on the law, without costs, the petition for a writ of mandamus denied, and the matter remanded to respondent agency for a hearing to determine petitioner's eligibility for Section 8 benefits.

For over 20 years, petitioner Louis Evans ("Evans") and Esther Silver ("Silver"), the deceased tenant of record, lived together in Apartment 2C at 1305 East 18 Street in Brooklyn. Though not formally married, they allegedly had an equivalent intimate long-term relationship, held themselves out as a couple and shared expenses. Evans assisted Silver in performing the activities of daily life, with which she had difficulty due to various physical disabilities. He allegedly cared for her throughout her final illness, until her death in March 1995.

In 1978, Silver applied for a Section 8 rent subsidy as a single person and was found eligible. The Section 8 Tenant-Based Assistance Program was established by Federal law under 42 U.S.C. § 1437f, and provides Federal rent subsidies to lower-income families to enable them to obtain decent, safe and sanitary housing in the City of New York's private housing sector. NYCHA administers the Section 8 program for the United States Department of Housing and Urban Development (HUD) in the City of New York (see, 24 C.F.R. 982.151).

NYCHA is authorized to receive applications for housing assistance from eligible persons, approve the applications and issue a "Certificate of Family Participation" or "Voucher" to an approved applicant. The certificate enables the holder to seek rental housing with rental maximums and specified housing quality standards (24 C.F.R. 982.302).

Once an applicant receives a certificate, the applicant bears the responsibility of locating a suitable rental unit in the private sector. The proposed lease between the applicant and the private landlord is reviewed by NYCHA, and if the rental rate and the other aspects of the landlord-tenant relationship are in compliance with Federal regulations, NYCHA enters into a "Housing Assistance Payments Contract" with the landlord and agrees to subsidize the rent in an amount based on the applicant's income (24 C.F.R. 982.305). Thus, the Section 8 Tenant-Based Assistance Program funnels assistance through NYCHA, and NYCHA contracts with private landlords to make rent subsidy payments so long as the tenant family remains eligible and the apartment remains in satisfactory condition.

A "family member" who has lived with a subsidized tenant for a significant period of time is entitled to succeed to the deceased tenant's Section 8 subsidy (if otherwise eligible) instead of starting as a new applicant at the bottom of the several-year waiting list for Section 8 payments. HUD regulations define "family member" for Section 8 eligibility purposes as, inter alia, the "remaining member of a tenant family" (24 CFR 5.403).

Federal law and the implementing regulations promulgated by HUD require NYCHA to periodically examine the income and family composition of the participant families. The participant is also required to supply such information as NYCHA determines necessary, including "submissions required for an annual or interim reexamination of family income and composition" (24 CFR 882.118[a][1]).

However, Silver never listed Evans as an additional family member or household resident on any of the forms she submitted to NYCHA. No additional family members are listed on any of the annual affidavits of income and household composition submitted to NYCHA between 1980 and 1994, despite the fact that Evans lived with her and contributed some income. Her Certificate of Family Participation for the Section 8 program also states that the subsidy covers a one-person family. Furthermore, Silver periodically filled out Federal Privacy Act Statements, which are forms used by NYCHA to supply data to HUD on the family composition of Section 8 households. On these forms as well, she indicated that she had no spouse.

Due to Silver's death in March 1995, NYCHA terminated the Section 8 rent subsidy in June 1995. Since Silver was receiving assistance under a tenant-based program rather than a project-based program, Evans's loss of Section 8 benefits did not affect his legal right to remain in the apartment. However, Evans...