Matter of McFarlane v. New York City Housing Authority, 3240.

• Decision Date: 08 July 2004
• Docket Number: 3240.
• Parties: In the Matter of MARCO McFARLANE, Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Appellant. In the Matter of VIVIAN HAYES, Respondent, v. TINO HERNANDEZ, as Chairman of the New York City Housing Authority, Appellant.
• Court: New York Supreme Court — Appellate Division

9 A.D.3d 289

780 N.Y.S.2d 135

2004 NY Slip Op 05850

In the Matter of MARCO McFARLANE, Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Appellant.

In the Matter of VIVIAN HAYES, Respondent, v. TINO HERNANDEZ, as Chairman of the New York City Housing Authority, Appellant.

3240.

Appellate Division of the Supreme Court of the State of New York, First Department.

July 8, 2004.

Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered October 24, 2003, granting the petitions to annul respondent's determinations dated May 8, 2002 (McFarlane) and August 19, 2002 (Hayes), which dismissed petitioners' grievances seeking to be deemed remaining family members and to succeed to the tenancies of their deceased relatives' apartments, unanimously reversed, on the law, without costs, the petitions denied, and respondent's determinations dismissing petitioners' grievances reinstated.

Both petitioners are grandchildren of deceased tenants of apartments in federally funded public housing developments administered by respondent Housing Authority; both sought and were denied remaining family status from the Housing Authority after their grandparents died, each having failed to apply for and obtain the written consent of management to became a permanent member of the tenant family during the grandparent's tenancy.

Petitioners argue that since respondent's written consent requirement has been held to amount to merely a policy that accommodates federal law, rather than a formal rule or regulation (see Matter of Abdil v Martinez, 307 AD2d 238, 241-242 [2003]), and that a policy or procedure which has not been formally filed as a rule with the Department of State "may not be applied as a rigid, invariable standard or procedure completely conclusive of the rights and remedies of the affected party" (see generally Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 66 NY2d 948, 951 [1985]), the Hearing Officer erred by applying this written consent policy in a rigid, invariable manner without considering the particular circumstances of petitioners' cases. However, neither Abdil nor any other case law requires respondent Housing Authority to rule on these matters differently.

The discussion in Abdil, stating that the Housing Authority's written consent requirement is a policy rather than a rule, can have no effect on applicable federal regulations, which respondent was bound to observe. Among those regulations is the requirement of the United States Department of Housing and Urban Development that residence in federally funded, low income housing units is strictly limited to family members who are identified in the lease (24 CFR 966.4 [f] [3]), and the directive that "[t]he family must request [Housing Authority] approval to add any other family member as an occupant of the unit" (24 CFR 966.4 [a] [1] [v]). So, regardless of whether the Authority's written consent was obtained, petitioners' claims are precluded by the absence of any showing that any request was made during the tenancies for the approval of the Housing Authority to add petitioners as occupants. Application of 24 CFR 966.4 (a) (1) (v) precluded the Housing Authority from permitting petitioners to be treated as...