In this Article 78 proceeding, self-represented petitioner Carol Johnson seeks a judgment vacating the decision and order of respondent the New York City Housing Authority (hereinafter Housing Authority), dated October 6, 2010, which approved the determination by the hearing officer to dismiss petitioner's claim and that of her minor children, for succession rights as a remaining family member.

In 1972, Woodrow Johnson and his wife Julia Johnson filed an application with the Housing Authority to obtain an apartment for themselves and their four children, including petitioner. Woodrow and Julia Johnson thereafter became the tenants of record of apartment 5E located at 4-03 Astoria Boulevard, Long Island City, New York. The subject apartment is located in a Housing Authority project known as the Astoria Houses.

On November 8, 1995, petitioner was arrested and charged with the criminal sale of a controlled substance in the third degree. While these charges were pending, Woodrow and Julia Johnson entered into a so-ordered stipulation of settlement dated July 9, 1996 with the Housing Authority and District Attorney of Queens County, in which they agreed, among other things, to permanently exclude petitioner from their apartment, so as to avoid the commencement of any [*2]eviction proceeding against them.

In May 2003, Julia Johnson requested that the Housing Authority permanently permit her grandchildren LaCorey, Danzel, Diamond, Dashawn and Darryl Johnson, to live with her and her husband in the subject apartment. On June 8, 2003, the Housing Authority denied this request, stating that "they are foster children and can be given temporary permission only." Accordingly, on June 16, 2003, Julia Johnson filed an application with the Housing Authority to permit said grandchildren to temporarily reside with her in the subject apartment. The Housing Authority approved that request on June 24, 2003, for a period of one year, then set to expire on June 24, 2004.

On April 6, 2004, April 10, 2005, and April 11, 2006, Woodrow and Julia Johnson executed Housing Authority forms entitled "Occupant's Affidavit of Income," which required them to list all occupants in the subject apartment, for the corresponding preceding year. Only Woodrow and Julia Johnson's names appear on these forms, although, according to petitioner, the above named grandchildren continued to reside in the subject apartment.

Julia Johnson died on January 27, 2008. On April 29, 2009, petitioner filed an application for permanent permission to live with her father, which listed the additional family members as herself and her six children. The reason given for the request was "because my father is terminally ill." Woodrow Johnson died on April 29, 2009. Said request was disapproved on May 6, 2009, on the grounds of "criminal background check ineligible."

Petitioner and her children have continued to reside in said apartment. Following a meeting with the housing manager, petitioner filed a grievance with the Housing Authority requesting that she be granted remaining family member status. The project manager denied this request on January 13, 2010, as the children were never given permanent permission to live in the household.

A grievance hearing was held on June 3, July 14, July 27, and August 27, 2010, at which time petitioner appeared along with her representative. Witnesses also appeared on behalf of the Housing Authority and on petitioner's behalf. The Hearing Officer, in her decision of October 6, 2010, denied petitioner's grievance, and stated that:

"Greivant failed to establish that any of her six children were original family members of or born into the household of Co-Tenants Woodrow Johnson and Julia Johnson or the household of Tenant Woodrow Johnson, and failed to establish that the children continuously resided in the apartment until the death of the Co-Tenant or Tenant. Additionally, Greivant failed to establish that her six children had resided in the household of the Co-Tenant or that of Tenant Woodrow Johnson, for at least one year with the written permission of the development manager, which is essential to establishing a remaining family member claim. The Tenant Data Summary (Exhibit A), Temporary Permission Request dated June 16, 2003(Exhibit B) and NYCHA Interview Records entry dated June 24, 2003, reveal that five of Greivant's six minor children . . . were [*3]granted temporary permission to reside in the apartment on June 24, 2003. That permission was then set to expire on June 24, 2004.

"In determining whether permanent permission was granted for the children to reside in the household of the Co-tenants or Tenant by any other written requests, the evidence revealed that at Permanent Permission Request by Co-Tenants dated May 15, 2003(Exhibit C) to add five of the Greivant's children was denied by management on June 8, 2003, because the children are foster children. This denial was in accordance with NYCHA regulations, which provide that foster children cannot be granted permanent permission to reside in a NYCHA household during the duration of the foster care relationship. A Temporary Permission Request dated June 16, 2003 (Exhibit B) to add these same children to Co-tenants' household was submitted and in the field that states: Explain you reason for requesting admission to the project apartment' the response indicated is: foster grand kids.' The length of stay requested was one year. This Temporary Permission Request was granted by management, but did not grant the children permanent occupancy required in order to qualify as remaining family members. As such, Greivant's claim on the children's behalf cannot be sustained.

"The third request, specifically a Permanent Permission Request dated April 29, 2009 (Exhibit 4), to add Greivant and her six children to the household of Tenant Woodrow Johnson (by this time Co-tenant Julia Johnson had passed away) could not have resulted in Greivant or any of her six children obtaining the requisite one year of authorized residency required to become a remaining family member. The request is dated the same day that Tenant Woodrow Johnson passed away(Hearing Officer's Exhibit 3).

"Greivant and witness Theresa Hicks provided uncontroverted testimony that the minors are Greivant's children and that Greivant was the daughter of the Co-Tenants. In analyzing the claim of Greivant as mother on behalf of her children and as grandchildren of Co-tenants, there was no evidence that Tenant or Co-Tenant had obtained legal custody or guardianship over Greivant's children and as such, Greivant's children could not have been added permanently to the household according to the NYCHA's Minor Rule (NYCHA Manual, Chapter IV, Occupancy). Greivant's children did not obtain the permanent authorized occupancy required to qualify as remaining family members.

"Greivant testified that NYCHA accepted money on behalf of Greivant's children and screenshots from a public assistance data base(Exhibit 6) were submitted in support of this testimony, indicating that shelter payments were issued between December 2007 and March 2008. However public assistance shelter payments can be made to NYCHA on behalf of children even in those circumstances where children are not permanent members of a particular household (Social Services Law). Such payments did not result in their authorized permanent occupancy in the apartment required to qualify as remaining family members. The grievance on behalf of Greivant's children is not sustained . . .

"Greivant's claim on her own behalf is not sustained. Greivant failed to establish that her [*4]occupancy in the apartment commencing approximately 2007 was with the written permission of development management. The only Permanent Permission Request in evidence to add her is dated April 29, 2009 the same day that Tenant Woodrow Johnson died, and page 2 of a document indicating Permanent Residency Request' (purportedly page 2 of Exhibit 4) reflecting a disapproval date of May 6, 2009, is a date after Tenant Woodrow Johnson died. The dates on these two documents reveal that Tenant's passing on April 29, 2009, precluded the possibility that Greivant could have resided in his household for the one year required to be deemed a remaining family member."

The Housing Authority approved the Hearing Officer's decision and disposition on October 6, 2010.

Thereafter, petitioner timely commenced the within Article 78 proceeding and seeks a judgment vacating and annulling the Housing Authority's determination, on the grounds that it is arbitrary and capricious. Petitioner states that her children lived with her parents under foster care; that she was raised in the subject apartment and moved in with her parents when her mother became ill; that all of her children are under the age of 18; that she and her family do not have alternative housing; and that she does not wish to move to a shelter, as she is able to pay the rent on time.

Respondent Housing Authority asserts, in opposition, that its determination is neither arbitrary nor capricious, and is supported by substantial evidence in the law and the record. Respondent asserts that neither the children nor petitioner qualified as remaining family members; that neither the children nor petitioner obtained written consent to permanently join the household; that petitioner has not resided in the apartment with the management's consent for a period of one year prior to her father's death; that the Housing Authority did not implicitly approve of permanent occupancy by either petitioner or her children; that the alleged mitigating circumstances do not justify exempting petitioner or her children from the remaining family member eligibility requirements; and that there is no right to bequeath public housing benefits.

Petitioner, in her reply, asserts that the children had permission to reside in the apartment as early as 2000 and, therefore, the one year residency requirement has been met; that Woodrow and Julia Johnson followed the procedures to add the children to the lease and that the local management of the Housing Authority did not proceed diligently with the request to add the children; that Woodrow and Julia Johnson's request was misunderstood; that Astoria Houses knew that the children resided in the subject apartment; and that petitioner and her children remain in residence. Petitioner further asserts that, at the time her parents entered into the so-ordered stipulation barring her from the subject apartment, they were not represented by counsel and were afraid of losing their apartment.

It is well settled that the court's power to review an administrative action is limited to whether the determination was warranted in the record, has a reasonable basis in law and is neither arbitrary nor capricious (see Matter of Jennings v Commissioner, N.Y.S. Dept. of Social [*5]Servs., 71 AD3d 98 [2010]; McLeon v NYCHA Hope Gardens, 48 AD3d 686 [2008]). The court finds that the Housing Authority's determination is neither arbitrary nor capricious and has a reasonable basis in the law and the record.

The Housing Authority's guidelines permit a qualified "remaining family member" of a tenant of record's household to succeed to a tenant's apartment, after the tenant of record either moves or dies, provided the person meets the following criteria: The Housing Authority's own regulation defines a "remaining family member" as:

"occupants of all projects who were a member(s) of the original tenant family, or became a permanent member(s) of the tenant family subsequent to move-in with the written approval of the project management, or subsequent to move-in, were born or legally adopted into the tenant family and thereafter, remained in continuous occupancy up to and including the time the tenant of record moves or dies. Any occupant who meets the standards defined above shall be deemed a remaining family member.' Remaining family members' shall be offered an Authority lease if they are otherwise eligible for public housing in accordance with the admission standards for applicants contained in the Housing Application Manual" (see New York City Housing Authority Management Manual — Chapter IV — Occupancy, Subdivision IV — Changes in Family Composition).

Petitioner was unable to establish at the grievance hearing that she had obtained the project management's written approval to become a permanent member of the tenant household, one year prior to her mother's death, or one year prior to her father's death, which is a necessary condition to the recognition of the petitioner as a remaining family member. Rather, the evidence presented at the hearing establishes that although petitioner resided with her parents and siblings in the subject apartment when she was a child, she had moved out of the apartment by 1995, and did not return until late 2007. Further, she was not included in the tenants' annual income reports.

The evidence presented at the hearing also establishes that petitioner was not authorized to reside with her parents in the subject apartment after the July 6, 1996 so-ordered stipulation was executed. There is nothing improper, or per se unreasonable about asking a tenant of public housing, in the interests of protecting his or her neighbors, to agree that a family member who is a proven danger to others not be permitted to reside in or visit the apartment. Notably, the courts have previously upheld enforcement of such stipulations, although tenants of record have not necessarily had their tenancy terminated for violating such stipulations (see Matter of Robinson v Martinez, 308 AD2d 355, 356 [2003]; Matter of Johnson v New York City Hous. Auth., 266 AD2d 102 [1999]; Matter of Williams v Franco, 262 AD2d 45 [1999]).

Petitioner's application to become a permanent member of her father's household was made on the same day that her father died. Therefore, even if the Housing Authority was willing to disregard the 1996 stipulation, petitioner would still be ineligible for remaining family member status as her father died less than a year after her request was submitted (see Matter of [*6]McNeal v Hernandez, 58 AD3d 417, 418 [2009]). In other words, petitioner did not demonstrate that she was continuously living in the subject apartment with written permission from management for at least one year after the date of entry.

Petitioner was not relieved of the obligation of obtaining written permission even if respondent was aware of her and the children's occupancy, yet failed to act (see Schorr v New York City Dept. of Hous. Preserv. & Dev., 10 NY3d 776, 779 [2008]; Edwards v New York City Hous. Auth., 10 NY3d 776[2009]; McLeon, 48 AD3d at 686 [Supreme Court should have dismissed the petition when: (1) evidence was adduced at the administrative hearing that petitioner failed to obtained the project management's written permission to reside in the apartment while the tenant was still alive; and (2) there was no indication that the Housing Authority was "actually aware" of petitioner's residency thereat]).

Finally, while the court recognizes the hardship to petitioner and her family, the fact that petitioner is a single parent with six children, and that, if she were to lose the subject apartment, she may have to go into a shelter, the hearing officer was not required to consider such hardships and mitigating factors, in determining petitioner's remaining family member grievance (see Matter of Fermin v New York City Hous. Auth., 67 AD3d 433 [2009]).

With respect to petitioner's children LaCorey, Danzel, Diamond, Dashawn and Darryl, the Hearing Officer's determination that they were not permanent members of the tenant's household, and were not entitled to remaining member status, was neither arbitrary nor capricious. These five children were not original members of the household, nor are they persons born to, adopted by, or judicially declared to be the ward of the tenant of record or an authorized permanent family member. The Housing Authority regarded these children as foster children of their grandparents, and pursuant to their guidelines, disapproved a written application to permanently add the children to the tenants' household on June 8, 2003, and thereafter approved a written application to temporary add said children to the tenants' household, for a period of one year, which expired on June 24, 2004. Although the children continued to reside in the subject apartment, their grandparents did not continue to seek written permission to add the children to the household after June 24, 2004. The grandchildren's names were not listed on the tenants' income affidavits, and their continued occupancy of the apartment after June 24, 2004, was without the Housing Authority's consent. The only other written application which includes the minor children is dated April 29, 2009, the same day the tenant Woodrow Johnson died. The grandchildren, however, cannot be considered remaining family members, as they were not living with Mr. Johnson for a year after the application for permanent occupancy was made. The grandchildren thus, do not qualify as remaining family members (see Matter of McFarlane v New York City Hous. Auth., 9 AD3d 289, 290, [2004]).

Therefore, the court finds that the Housing Authority's determination — that neither petitioner, nor her minor children do not qualify as a remaining family member — is neither arbitrary nor capricious (see Matter of Guzman v New York City Hous. Auth., __AD3d__, 2011 NY Slip Op 05129 [2011]; Matter of Fermin v New York City Hous. Auth., supra; Matter of [*7]Aponte v New York City Hous. Auth., 48 AD3d 229 [2008]; Matter of Jamison v New York City Hous. Auth., 25 AD3d 501 [2006]; Matter of Hutcherson v New York City Hous. Auth., 19 AD3d 246 [2005]; Matter of Abdil v Martinez, 307 AD2d 238, 242 [2003]).

Accordingly, in view of the foregoing, is it hereby

ORDERED and ADJUDGED that petitioner's request to vacate the Housing Authority's determination of October 6, 2010 is denied, and the petition is hereby dismissed.

Dated: June 29, 2011

J.S.C.