Petitioner seeks to reverse and annul respondent's September 6, 2006 determination that denied her application for a lease as a remaining family member. The lease petitioner sought is for an apartment previously occupied by Joseph and Chana Weinberger and their daughter Sara Weinberger, an infant. The apartment is in a facility owned by respondent, a public housing authority.

Petitioner claimed remaining family member status because she was Sara Weinberger's court-appointed legal guardian. Joseph and Chana Weinberger vacated the apartment in January, 2002, leaving their daughter, who also subsequently vacated, as a sole occupant.In a February 3, 2002 letter, an attorney representing Sara Weinberger, and petitioner, notified respondent's project manager that Sara Weinberger's parents vacated the apartment and asked that a lease be issued to her. He wrote that:

"Fortunately for Sara Weinberger the Farkas [petitioner's] family has taken her in and made her feel part of their family...However, as Sara Weinberger has insisted on remaining in the familiar surroundings of her apartment for so many years, and as the Farkas' were living in substandard conditions, they have moved in with Sara Weinberger...rather than the other way around. Kindly issue a lease to Sara Weinberger as soon as possible. Sara Farkas will sign it as legal guardian."

Petitioner alleges that Sara Weinberger was eligible for remaining family member status [*2]at that time as she was an original member of the tenant's family, lived in the apartment continuously up to the time her parents left, had a legal guardian and, according to petitioner, "...was otherwise eligible for public housing". However, she was denied remaining family member status.

In 2002, Sara Weinberger requested a grievance proceeding to challenge respondent's denial of her request for remaining family member status. However, in 2005, while the administrative grievance proceeding was pending, she vacated the apartment. Petitioner submitted her claim for remaining family member status after Sara Weinberger's departure. Petitioner asserts that she is entitled to remaining family member status because she "resided in the subject apartment with Sara Weinberger as a family member with [respondent's] actual knowledge, for over three years, and she is otherwise eligible for public housing.

The Project Grievance Summary denying the application noted that the original tenants, Sara Weinberger's parents, vacated the apartment on January 1, 2002, leaving behind Sara Weinberger, petitioner, her husband and three children.

In denying remaining family status, respondent's Project Manager stated:

"Permission denied

Sara Weinberger will turn

18 yrs old on 8/22/04...

Therefore she would be eligible to sign a lease at that time.

Allowing Ms. Weinberger and

the Farkas Family to enter

this apt at this time

would create an overcrowded condition."

Respondent's Borough Director affirmed the Project Manager. He noted that because Sara Weinberger turned eighteen she was now able to sign her own lease. However, she would have to move to a smaller apartment, suitable for a single occupant. If she declined to agree to the move, her grievance would be denied and her tenancy would be terminated.

In his subsequent denial of petitioner's application, the Project Manager noted that Sara Weinberger vacated the apartment on February 20, 2005 and that petitioner asserted that she had the same rights as Sara Weinberger's parents to stay in the apartment. The Project manager disapproved the claim, stating that "Farkas is not an original/authorized family member." The borough Administrator agreed with the Project Manager's decision.

After the denial, petitioner requested a hearing. The hearing was held on July 11, 2006. The hearing officer denied the application.

The hearing officer noted that petitioner asserted that she was not basing her claim as a guardian of the former tenant's daughter, but "as a member of the family who joined the household as of right and therefore is protected by automatic succession rights..."

The hearing officer noted petitioner's argument that had Sara Weinberger's application "been timely and properly decided", she would have been "accorded official permanent household status at the same time, which was before the November 2002 promulgation of [respondent's] GM-3672 (which restricted the category of relatives who may join a household, among other things.)". The hearing officer rejected this argument and held "that there is no such [*3]thing as automatic succession for a guardian." He found that respondent's "...remaining family member regulations never allowed a relative to become part of a household merely by virtue of the relationship; permission had to be obtained. Permission was not sought for the addition of [petitioner] and her family prior to the tenant's departure, and hence Grievant did not obtain authorized residence which might lead to residual tenancy. Nor would mere legal guardianship give rise to succession rights (at the project level, Grievant framed her rights in guardianship terms, when [respondent] did not approve that guardianship. Accordingly, Grievant is not a remaining family member."

Petitioner now seeks review of the denial.

Respondent, in opposing the petition, alleges several affirmative defenses: respondent's decision was rational and supported by substantial evidence, as petitioner was never an authorized member of the authorized tenant's household and did not qualify for remaining family member succession rights as a guardian, particularly as the apartment could not accommodate six persons; petitioner lacks the standing to challenge denial of remaining family member status for Sara Weinberger; and any such challenge is barred by the statute of limitations; respondent's decision is in accord with its federal regulations and its own policies; and, allowing petitioner and her family to have the apartment would violate public policy, as it would allow "one family to skip over all others on the Housing Authority's waiting list for public housing by manipulating the Housing Authority's remaining-family member guidelines..."

Respondent's arguments are correct. Petitioner has not demonstrated that respondent's determination was arbitrary and capricious or contrary to law. Rather, the record shows that respondent's determination was a lawful and rational one that correctly determined that petitioner is not entitled to remaining family member status. Therefore, the petition is denied and the proceeding dismissed.

Respondent, as a public housing authority, is subject to the rules of the United States Department of Housing and Urban Development. Under 24 CFR §966.53(f)(2), a tenant is a person "who resides in the unit, and who is the remaining head of the household of the tenant family residing in the dwelling unit."

Under respondent's regulations, a person may obtain remaining family member status if that person was a member of the original family or became one by birth or adoption; or, if that person received written permission from the project manager. That person also must have been in the apartment continuously and be otherwise eligible for public housing (see Chapter VII, Section IV, Subsection E of the Housing Authority's Management manual and its guidelines GM. 3692).

Respondent's requirement that an applicant receive permission to be added as a remaining family member is consistent with 24 CFR §966.4(a)(v). This regulation states that, "The family must promptly inform the PHA [Public Housing Authority] of the birth, adoption or court-awarded custody of a child. The family must request PHA approval to add any other family member as an occupant of the unit."

In November, 2002, respondent amended its guidelines to restrict the granting and permission, and potential succession rights, to certain close relatives including spouses, children, grandchildren and grandparents. The new regulation excluded other persons including aunts, uncles and cousins. [*4]

Petitioner asserts that the regulation in effect on January, 2002, prior to the amendment, defined a household as two or more unrelated persons living together in a cohesive family group in a sharing relationship. However, respondent argues that the amended guidelines specifically provides that any "pre-existing occupancy rules apply only if a request for permanent occupancy was approved in writing by the Housing Manager prior to November 24, 2002" (GM 3692 Section III, [pages-2-1]).

Respondent argues that a federal judge approved a class action settlement based in part on respondent's implementation of the amended regulation (see Williamsburg Fair Housing Committee v. New York City Housing Authority and the United Organization of Williamsburg, Inc., Case No. 76-Civ 2125 (SDNY)). In that case, the plaintiffs argued that the instant respondent discriminated against non-white persons (in the housing project involved in this matter), by permitting apartments to be passed to new tenants, under the claim of remaining family status, on to the detriment of minority applicants on a waiting list.

Respondent alleges that it settled the lawsuit in order to lessen racial tension in the community. In compliance with the settlement, respondent revised its regulations in order to limit the categories of persons who could obtain remaining family member status.

Respondent also argues that under its rules, permission for an additional person to join a household can be given only when a tenant is "in current occupancy" (New York City Housing Authority Management Manuel Ch IV, subd. IV, F.4.a(1)). However, the tenants, the Weinberger, vacated the apartment.

The standard of review in this matter is whether the administrative determination was arbitrary and capricious; the court must determine if it was rational (see matter of Pell v. Board of Education, 34 NY2d 222, 231). If the administrative determination is rational, the court must defer to the agency's interpretation of its own regulations in making its determination. Also, if the court finds that the agency determination is rational, it may not substitute its judgment for the agency's (see Howard v. Wyman, 28 NY2d 434, 438).

In the instant case, petitioner sought to become part of the household without securing respondent's permission. As she was required to obtain such permission under respondent's rules, her failure to do so mandated respondent's determination denying her remaining family member status (Matter of McFarlane v. New York City Housing Authority, 9 AD3d 289, 290). This denial was mandated by federal regulation (id.; 24 CFR 966.4[f][3]; 254 CFR 966.4[a][1][v]). Rather than enter the apartment lawfully, with respondent's permission, petitioner simply asserted rights to the apartment for herself, husband and three children. This unilateral act on her part does not give her the right to remaining family member status (see Matter of Jamison v. New York City Housing Authority, 25 AD3d 501, 502).

The hearing officer correctly decided that a person, including a relative, did not become part of a household merely because of the familial relationship and that respondent's regulations never permitted that status to exist. Therefore, the hearing officer correctly determined that absent permission, respondent did not became part of the household and was not a remaining respondent's standards governing the proper number of apartment occupants.

Further, even though petitioner was Sara Weinberger's guardian, respondent may reject an unsuitable guardian (see Matter of Swan v. Finkel, 295 AD2d 116, 117). Petitioner was not suitable, as allowing respondent and her family to move in would create overcrowding in an [*5]apartment that, under respondent's occupancy standards, could not accommodate six persons.

There is no merit to petitioner's argument that Sara Weinberger was improperly rejected as a tenant. Petitioner has no standing to challenge any determination against Sara Weinberger and any challenge to respondent's determination about her is time-barred by the four month statute of limitations.

Petitioner does not seek to assert any claim on behalf of Sara Weinberger, whose name does not appear in the caption. There is no indication that Sara Weinberger is even aware of this proceeding. Moreover, the determination regarding Sara Weinberger was made on June 15, 2005, and any challenge beyond four months from that date is time-barred by the four month statute of limitations (CPLR 217). Petitioner did not commence this proceeding until January, 2007.

In any event, the question of whether Sara Weinberger was entitled to remaining family member status is moot. Respondent would have allowed her to remain in its housing facility, albeit in an apartment for a sole occupant. Therefore, she received the benefit she sought: the opportunity to remain in public housing, even if she was not permitted to remain in her parents' apartment (see Matter of Shulman v. Grinker, 184 AD2d 306, 307). Sara Weinberger's request for relief became moot for the additional reason that she vacated the premises.

Even if the court were to examine the merits of Sara Weinberger's application for remaining family member status, the instant petition would fail.

Contrary to petitioner's argument, there is never automatic entitlement to remaining family member status; "a remaining family member' is not the equivalent of a tenant' under the Federal regulations." While such a person seeking remaining family member status is entitled to a determination of that status, at which due process standards are adhered to, an ineligible person may not be accorded that status (see Matter of Faison v. New York City Housing Authority, 283 AD2d 353).

In addition to petitioner being unqualified to succeed to the tenancy because her move into the apartment would create overcrowding, she is ineligible because permitting her and her family to obtain the apartment would be contrary to public policy. Public housing is a scarce resource. Respondent is not obliged to permit a scheme to pass the apartment from one family to another, to the detriment of other eligible persons who must wait their turn for an apartment according to their place on respondent's eligibility list.

Respondent's determination was rational. It was in keeping with respondent's regulations governing who may occupy its housing units. Moreover, it is consistent with the settlement in Williamsburg Fair Housing Committee v. New York City Housing Authority and United Jewish Organization of Williamsburg, Inc., id., whose goal was to encourage racial and ethnic diversity in public housing facilities. Respondent's decision fosters the sound public policy of making public housing available only to those who qualify for it under its eligibility standards, and prevents individual tenants from unilaterally deciding, based solely on their self-interests, who will succeed to their tenancies.

There is no merit to petitioner's argument that she was prejudiced by a delay in acting on Sara Weinberger's application, and that a new regulation went into effect during that period. There is no showing that there was an improper period of time elapsed, nor will this court impose its own time standard in determining whether an agency acted in a timely manner. This would [*6]amount to an improper substitution of its judgment for the agency's. Moreover, the new regulation stated that the pre-existing rule would apply if permission for occupancy had been obtained prior to the rule. Thus, the new rule was in conformity with the federal regulation requiring permission before remaining family member status would b e obtained. There had been no request for permission either when the old rule was in effect, or after the new one became effective.

Accordingly, it isADJUDGED that the petition is denied and the proceeding dismissed.

This constitutes the decision and judgment of the court.

Dated:September 26, 2007

E N T E R

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J.S.C.