In this Article 78 proceeding, petitioner Relly Adler challenges the determination of respondent New York City Housing Authority ("NYCHA") denying her succession rights as a remaining family member to a public-housing apartment after her husband, the tenant of record, died. Respondent has interposed an answer asserting that NYCHA's denial of petitioner's grievance is rational and not arbitrary and capricious.

In 1987, petitioner Relly Adler began renting an apartment from NYCHA at 70 Clymer Street in Brooklyn. She lived alone in the one-bedroom apartment.

Ms. Adler entered into a pre-nuptial agreement dated July 2, 1991 with Isak Seidenfeld, who was a widower. Seidenfeld was the tenant of record of a three-bedroom apartment in NYCHA's Taylor-Wythe housing development at 51 Ross Street in Brooklyn. His grandchildren resided with him in the apartment.

Petitioner and Seidenfeld got married in a religious wedding ceremony on July 24, 1991. After the wedding, petitioner stopped residing in the Clymer Street apartment and began residing in the Ross Street apartment with Seidenfeld. However, neither petitioner nor Seidenfeld ever notified NYCHA in writing that petitioner had moved into the Ross Street apartment, nor did they approach NYCHA to ask for petitioner's name to be added as a co-lessee on the lease agreement. Seidenfeld submitted an Occupant's Affidavit of Income to NYCHA every year listing himself and his grandchildren as occupants of the apartment, but he never put petitioner's name on the affidavits.

It is undisputed that from 1991 onward, petitioner stopped residing in the Clymer Street apartment. In addition, it is undisputed that petitioner continued paying rent for the vacant apartment for several years. [*2]

Isak Seidenfeld died on August 2, 2002. Petitioner finally notified NYCHA in 2003 that the Clymer Street apartment was no longer her residence, and she formally surrendered possession of the premises.

On May 11, 2009, respondent served a predicate notice for a summary proceeding seeking to evict petitioner from the Ross Street apartment. Thereafter, petitioner sought a lease as a remaining family member of the deceased tenant of record. Petitioner's grievance was denied on May 22, 2009.

The grievance advanced to a hearing, which was held on January 19 and February 23, 2010.

Petitioner was represented by counsel at the hearing. Respondent was represented by Howard Brookman and Joseph Benjamin, a Housing Assistant for Taylor-Wythe Houses (Transcript of Administrative Hearing, p. 44).

Petitioner Relly Adler testified in her direct examination that she did not give up her apartment on Clymer Street when she got married because she was worried that the marriage might not work out (Tr., p. 63). After moving into the Ross Street apartment in 1991, she never returned to visit, live, or do anything at Clymer Street. Joseph Benjamin, the NYCHA Housing Assistant, came to the Ross Street apartment annually to inspect it. Petitioner identified Mr. Benjamin, who was present in the hearing room, and said that he came to offer his condolences when she was sitting Shivah after Seidenfeld died.

Petitioner testified that it was clear to the Housing Assistant not only that she was living there, but also that she was Mr. Seidenfeld's wife. Adler stated that Mr. Benjamin never told her that she had to fill out any type of forms, never told her that she was not allowed to live there, and never suggested in any way that there was any problem with her living there. She also testified on direct that Seidenfeld's grandchildren lived at the premises and that Seidenfeld was not aware of any problem with her living there.

On cross-examination, petitioner acknowledged that the pre-nuptial agreement signed in 1991 stated that she lived at 1435 46th Street in Brooklyn. Adler stated that the address is the house of a relative. She did not give up the Clymer Street apartment after her marriage because Seidenfeld was an old man who was "nervous." Adler feared that if Seidenfeld got angry, he might force her to leave the Ross Street apartment, so she hung onto the Clymer Street apartment for peace of mind.

Adler testified that Seidenfeld had applied for permission and filed papers for his grandchildren to reside with them in the apartment. However, she did not know where the papers were submitted because Seidenfeld "managed everything." He paid the rent and took care of all financial matters. After his death, she took over paying the rent and sent the rent check to NYCHA every month. In 2003, she stopped paying rent for the Clymer Street apartment and surrendered possession to NYCHA.

Adler insisted that management knew that she lived in the Ross Street apartment and that Mr. Benjamin, the NYCHA Housing Assistant, saw her in the apartment and asked how she was feeling. She said that she did not help Seidenfeld submit or fill out papers for the apartment. With regard to the Clymer Street apartment, she did not remember filling out any papers and just paid her rent.

Petitioner called her daughter Michelle Kohn as a witness. Kohn testified that petitioner [*3]was a Holocaust survivor. Her mother kept the Clymer Street apartment even after she got married to Seidenfeld because she was not sure that the marriage "would really last." When Kohn went to the Ross Street apartment to visit, petitioner "was a housewife ... cooking and cleaning, baking." Kohn stated that she never helped petitioner fill out any paperwork for the Clymer Street apartment, such as a lease or Affidavit of Income.

Susan Wertzberger, also a daughter of petitioner, was petitioner's next witness. Wertzberger testified that petitioner mentioned to her that "she is not so secure with Mr. Seidenfeld," so she kept the Clymer Street apartment in case Seidenfeld ever made her leave.

On cross-examination, she described Seidenfeld as "a tense type of a person" who, like her mother, was also a Holocaust survivor.

Respondent called no witnesses to testify.

At the conclusion of the hearing, the record was kept open for the submission of post-hearing briefs. Both parties submitted briefs on March 18, 2010.

The hearing officer issued a decision on April 16, 2010, denying petitioner a lease as a remaining family member.

On May 5, 2010, respondent approved the hearing officer's decision, denying petitioner a lease.

Upon notification that her grievance had been denied, petitioner commenced the instant Article 78 proceeding.

Discussion

The role of a court in reviewing a decision of an administrative agency, such as NYCHA, is limited, with the standard of review being whether the administrative determination was in violation of a lawful procedure or was affected by an error of law or was arbitrary and capricious and without a rational basis in the administrative record (see, CPLR 7803; Matter of Pell v. Board of Educ., 34 NY2d 222, 231 [1974]). The court cannot conduct a de novo review of the facts and circumstances or substitute the court's judgment for that of the agency's determination (see, Greystone Management Corp. v. Conciliation and Appeals Bd., 94 AD2d 614, 616 [1st Dept. 1983], affd. 62 NY2d 763 [1994]). Instead, the court reviews the record as a whole to discern whether a rational basis exists to support the findings of the administrative agency (Nelson v. Roberts, 304 A.D.2 20 [1st Dept. 2003]). Where an administrative determination necessitates an evaluation of the facts within an administrative entity's area of expertise, the determination must be accorded great weight and judicial deference (Nelson v. Roberts, 304 AD2d 20, 23 [1st Dep't 2003]; Flacke v. Onondaga Landfill Systems, Inc., 69 NY2d 335, 363 [1987]). An administrative determination is arbitrary or capricious if made "without sound basis in reason" and "taken without regard to the facts." (Pell v. Board of Education, supra). While judicial review must be meaningful, it is not the role of the courts to weigh the desirability of any action or to choose among alternatives (6 NY Jur.2d Article 78 sec. 13). "The judicial function is at an end once it has been determined that an agency's conclusion has a sound basis in reason" (6 NY Jur.2d Article 78 sec. 15).

The findings and conclusions of the hearing officer in the instant matter were as follows:

The testimony and evidence presented show that although the grievant may have married the tenant in 1991and resided in the subject apartment since that time, she simultaneously maintained her own NYCHA apartment on Clymer Street. The grievant paid rent for the Clymer [*4]Street apartment from 1991-2003 and did not give up her claims to that apartment until more than one year after the tenant's death.

The grievant stated that she did not give up the Clymer Street apartment, out of a fear that her marriage would not last and that she would be forced to move out of the subject apartment. The grievant's fear of the future and retention of the Clymer Street apartment, may have provided the grievant with a sense of security, but her conduct in relation to NYCHA was improper and unjustified. NYCHA apartments may not be used for purposes of "security" no matter how extenuating and sympathetic those claims. The twelve year period during which the grievant maintained, but did not reside, in her Clymer Street apartment, is a lengthy period of time during which a needy family on the waiting list for a NYCHA apartment could have enjoyed the benefits of a home.

The tenant took no affirmative action to add the grievant to his household and did not include the grievant's name on the family compositions, although he did include the names of his grandson and the grandson's family members. The NYCHA interview record, dated July 13, 2001 (Exhibit 4), which references a repair complaint and entry that the Housing Assistant "spoke to a woman who is believed to be the tenant's common law wife," is insufficient to impart notice to NYCHA that the grievant was residing in the subject apartment and to create residual tenancy rights under the facts and circumstances of this case.

(Verified Answer, exhibit DD, pp. 3-4).

Respondent exhibits a copy of the NYCHA Management Manual, which states:

The tenant(s) and other persons(s) listed on the authorized original family composition who remain in continuous occupancy comprise the tenant household and may occupy the tenant's apartment. Except for person(s) added by birth or legal adoption, no person may join a tenant's household, unless the tenant requests their inclusion in writing and project management approves the request in writing.

(Answer, exhibit A, p. 4, para. F(1)).

"According to the [one-year] rule, only where a remaining family member has lived in an original tenant's apartment for one year after having been granted written permission to do so may that remaining family member succeed to the apartment" (Torres v. New York City Housing Authority, 40 AD3d 328, 329 [1st Dept. 2007]. "Housing Authority policy requires a tenant to make a written request to the manager to have a relative or other family member become either a legally authorized permanent household member or a co-tenant, a policy consistently enforced by this Court" (Hawthorne v. New York City Housing Authority, 916 N.Y.S.2d 55, 57 [1st Dept. 2011]).

It is undisputed that Isak Seidenfeld, the tenant of record for the apartment in issue, failed to request or obtain written permission to add petitioner to the household. He neglected to list petitioner's name anywhere on any written document.

Notwithstanding the fact that Seidenfeld never gave written notice to NYCHA, petitioner [*5]argues that respondent was aware that she had taken up residence in the apartment.

In McFarlane v. New York City Housing Authority, 9 AD3d 289 [1st Dept. 2004]), the Appellate Division wrote:

One type of circumstance that could be of critical importance in establishing a right to be treated as a remaining family member despite the absence of notice or written consent, would be a showing that the Authority was aware of petitioner having taken up residence in the unit, and implicitly approved it.... [A] showing that the Authority knew of, and took no preventive action against, the occupancy by the tenant's relative, could be an acceptable alternative for compliance with the notice and consent requirements."

(McFarlane, 9 AD3d at 291) (emphasis in original).

The Housing Assistant's Shiva call shows that, after the tenant's death, the Housing Assistant knew that the petitioner and the tenant were related. However, it is a non sequitur to say that the Housing Assistant must have known for years prior to the death that the petitioner and tenant were related simply because he extended his condolences after the tenant had died.

Petitioner submitted into evidence an interview record dated July 13, 2001, which states, "HA spoke to woman who is believed to be tenant's common law wife and advised her that the tenant must get their own plumber to fix sink stoppage" (Verified Answer, exhibit X).

In short, the court cannot say that the hearing officer acted irrationally in determining that such anecdotal evidence of a single incident that happened more than nine years ago was insufficient to impart notice to NYCHA that petitioner was residing in the subject apartment.

Petitioner points out that respondent did not call a single witness to testify, including the Housing Assistant. Petitioner asserts that the failure of the Housing Assistant to testify permits the trier of fact to draw the strongest inference against him that the opposing evidence in the record permits. The Court notes, however, that the petitioner also failed to call the Housing Assistant as a witness.

The decision reflects that the hearing officer fully considered both the testimony and documentary evidence that the agency was aware of petitioner's residence. However, the decision sets forth unambiguously the hearing officer's finding that the evidence was insufficient to impart notice to NYCHA.

The court has read the transcript of the administrative hearing and compared it carefully with the hearing officer's summary of the sworn testimony and documentary evidence. It is clear to the court that petitioner had a full and fair opportunity to present her case at the hearing. Furthermore, the court finds that the hearing officer's written opinion reflects that the hearing officer listened to the testimony carefully, considered all of the relevant evidence, and applied the rules, regulations and policy properly to the specific facts of this matter.

Accordingly, the court finds that the hearing officer's determination that petitioner failed to meet the criteria for status as a remaining family member is rational and not arbitrary and capricious (see, for example, Ruiz v. New York City Housing Authority, 81 AD3d 465 [1st Dept. 2011] (holding that "the hearing officer did not act arbitrarily in concluding that petitioner failed to establish that respondent waived its right to insist on strict compliance with its policies" ).

For the above reasons, it is adjudged that the petition seeking to reverse and annul [*6]NYCHA's determination is denied, and the proceeding is dismissed.

The foregoing constitutes the decision and order of the court.

Date:March 21, 2011______________________________

New York, New YorkAnil C. Singh