Porter v. New York City Hous. Auth.

• Decision Date: 14 February 2019
• Docket Number: 6049,Index 100546/16
• Citation: 169 A.D.3d 455,95 N.Y.S.3d 2
• Parties: In re Yvonne PORTER, et al., Petitioners, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 455

95 N.Y.S.3d 2

In re Yvonne PORTER, et al., Petitioners,

v.NEW YORK CITY HOUSING AUTHORITY, Respondent.

6049

Index 100546/16

Supreme Court, Appellate Division, First Department, New York.

ENTERED: FEBRUARY 14, 2019

Yvonne Porter, petitioner pro se.

David I. Farber, New York City Housing Authority, New York, (Seth E. Kramer of counsel), for respondent.

Friedman, J.P., Richter, Mazzarelli, Kapnick, Gesmer, JJ.

Petitioner Yvonne Porter seeks succession rights to the apartment of her late mother, who lived in the Borinquen Plaza Houses, owned by respondent, New York City Housing Authority (N.Y.CHA). She can qualify for succession rights by showing, in addition to meeting the financial requirements, that she resided with her mother in the apartment continuously for a year or more before her mother's death, either with NYCHA's written permission or by showing that circumstances exist that relieve her of the written permission requirement (see Matter of Russo v. New York City Hous. Auth., 128 A.D.3d 570, 571, 10 N.Y.S.3d 49 [1st Dept. 2015] ; Matter of Gutierrez v. Rhea, 105 A.D.3d 481, 485–486, 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] ; Matter of Detres v. New York City Hous. Auth., 65 A.D.3d 442, 443, 884 N.Y.S.2d 716 [1st Dept. 2009] ). In reaching her determination adverse to Porter, the Hearing Officer failed to consider Porter's argument that she had met her burden by showing that she had lived in the apartment for the required period with the knowledge of the NYCHA project manager. Accordingly, we remand to respondent for a determination of this issue.

Factual and Procedural History

On January 31, 2014, Porter's request for succession rights was denied after an informal hearing before the Borough Manager. Porter then requested and was granted a formal hearing. On November 19, 2015, Hearing Officer Arlene Ambert took testimony from Porter, her son, a family friend, and Terry Gray, a NYCHA employee who had worked in Borinquen Plaza since about 2013.¹

It is undisputed that Porter's mother, Hattie Speights, moved into an apartment in Borinquen Plaza II in or about 1976, with her family, including Porter. Porter testified that she moved out in or about 1989 and that she resided in the apartment again from about 2006 until 2008, with the knowledge of NYCHA management. Porter further testified that, in or about 2010, when Speights began to show signs of dementia, Porter moved back into the apartment to care for her mother full-time. Her mother's descent into dementia

took place over time. Porter testified that she cooked for her mother, made sure she ate, and assisted with all of her mother's hygiene, hardly leaving the apartment for the next three years. She testified that her mother advised NYCHA Housing Manager Ferdinand Rios that Porter had moved back in and that Porter herself had several conversations with him, to the same effect, between November 2010 and July 2011. Documents admitted into evidence show that, as of 2010, Porter used her mother's address for her tax returns, her New York State identification and her pension plan, and that she placed the cable account for the apartment in her own name.

Porter testified that, at a meeting in or about July 2011 among herself, her mother, and Rios, in his office, she handed Rios her mother's completed "Permanent Permission Request" form. In the form, which was admitted into evidence, Speights requested that Porter be added to the household, and stated, "I am disabled and no longer able to live alone. I need my daughter to help me day and night." Porter also testified as follows about the meeting. At the time, her mother "had a lot of lucid moments," her dementia "wasn't so bad," and she knew what she was doing when she asked to add Porter to her household² . Porter gave Rios her pension paystub to document her financial eligibility. Rios handed the documents back to Porter and said that Porter "can't go on the lease .... but I know that you're there, you know, everything is fine the way it is." Rios also advised Porter and her mother not to add Porter's information to the annual income affidavits.

There is no dispute that Rios did not give Porter and her mother a written decision with respect to the request³ . This is not consistent with the requirements of the NYCHA Management Manual (the NYCHA Manual) and the form itself, which require that the project manager approve or deny a Permanent Permission Request in writing (see also Public Housing Law § 402–c [effective December 28, 2016, NYCHA is required to provide written denials of all requests entitling tenants to grievance hearings, including requests to add family members to the lease] ).⁴

Counsel for NYCHA had the opportunity to have Rios testify, but chose not to do so. Accordingly, there is no testimonial evidence contradicting Porter's testimony about the July 2011 meeting and any of her other contacts with Rios.

On December 16, 2011, Porter's mother executed a power of attorney giving Porter authority to act on her behalf, including with regard to real estate transactions, government assistance, legal actions, and personal and family care.

NYCHA records admitted into evidence establish that, on April 2, 2013, Terry Gray, a NYCHA employee, called the apartment and spoke with Porter about moving Porter's mother to a smaller apartment. Porter advised Gray that moving could be detrimental to her mother, and again asked that she be added to the household. Gray scheduled a meeting between Porter and Rios the next day. On April 3, 2013, a different NYCHA employee, Ayodeji Festus, met with Porter, instead of Rios. Porter told Festus that her mother should not be moved because of her age and health issues, and again stated that she would like to be added to the household as a permanent resident. Porter also told Festus that she had already obtained the Permanent Permission Request form, and Festus advised Porter to submit proof of her income and previous address.

Porter's mother died on September 9, 2013. Porter testified that, a few days later, Rios came to the apartment and told Porter that, if she was not going to move out, she needed to write him a letter stating why she should succeed to her mother's tenancy. Porter's letter to Rios dated December 11, 2013 was admitted into evidence. In it, Porter stated that she moved back to the apartment in 2010 to care for her mother, and that, in relevant part, "I would appreciate that you acknowledge your permission and awareness of us living with my mom."

At the end of the hearing, Porter's attorney argued that, under prevailing case law, remaining family members may be granted succession rights, based on a showing that they lived in the building with the knowledge and implicit approval of the project manager, citing " McFarlan[e] " (v.New York City Hous. Auth., 9 A.D.3d 289, 291, 780 N.Y.S.2d 135 [1st Dept. 2004] ).

In her decision, the Hearing Officer denied petitioner's remaining family member grievance because a "tenant who wishes to have an additional person join or re-join the household on a permanent basis must submit a written request to the development manager and receive written approval." The Hearing Officer found that Porter's testimony

"reveals that the Property Manager did not grant permission for the Grievant to reside in the subject apartment. According to the Grievant, this disapproval was not challenged. The Grievant's explanation that because Mr. Rios did not state that she could not stay in the apartment and that the Grievant did not wish to interfere in the conversation between Mr. Rios and the Tenant to ask Mr. Rios to clarify or explain the disapproval is incredible in light of the evidence presented that the Tenant was suffering from dementia and that the Grievant was named as the Tenant's Attorney-in-fact by Power of Attorney."⁵

The Hearing Officer further found that, even if Porter had submitted a second Permanent Permission Request at her meeting with Festus on April 3, 2013 and it had been immediately approved, that would have been insufficient to meet NYCHA's requirement that a remaining family member reside with the tenant for one year before the tenant's departure, since Porter's mother passed away approximately five months later. However, the Hearing Officer failed to make a determination on Porter's argument that she is excused from the written consent requirement because she resided with her mother in the apartment with the project manager's knowledge and/or tacit approval.

Acting pro se, Porter filed an article 78 petition challenging the Hearing Officer's determination. She argued that the determination was not supported by substantial evidence because, inter alia, the Hearing Officer found that Porter had a power of attorney to act on her mother's behalf in July 2011 despite the fact that her mother did not execute the power of attorney until December 2011. Porter also argued that NYCHA should have given her succession rights based on NYCHA's "verbal and implicit approval."

The article 78 court transferred the matter to this Court pursuant to CPLR 7804(g).⁶

Analysis

The Hearing Officer's finding as to Porter's explanation for why she did not seek clarification from Rios in July 2011 was based on her mistaken belief that Speights was unable to understand or speak for herself and that Porter had a power of attorney to act on her mother's behalf at that time. However, Porter did not have the power of attorney until December 2011, five months after the July 2011 meeting with Rios, and she testified that her mother was not totally debilitated, was lucid at the July 2011 meeting, and understood what she was doing when she asked that Porter be added to the household. Contrary to the dissent's claim, our scrutiny of the basis for the Hearing Officer's finding is entirely consistent with our obligation under Matter of Haug v. State Univ. of N.Y. at Potsdam, 32 N.Y.3d 1044, 87...