Petitioner seeks to vacate the determination dated January 27, 2010, by respondent's hearing officer that petitioner is not a surviving family member permitted to remain in her deceased family member's apartment where petitioner currently resides: 190 Marcy Avenue, Apartment 18C, Brooklyn, New York 11211, a public housing unit in the Williams Plaza development managed by respondent. C.P.L.R. § 7803. Petitioner claims to have moved into the apartment in 1997 or early 1998, when an elderly relative whom petitioner characterizes as a cousin or great great aunt was the tenant, and to have applied to respondent's project manager February 2, 1998, for permanent residency. The parties do not dispute that respondent's applicable rule in 1998 provided that, if respondent did not grant or deny a request for permanent residency within 90 days, the request was considered granted. Petition, Ex. C (New York City Housing Authority Management Manual), ch. IV, subdiv. IV, § 4(b)(6). Because the rule in effect in 1998 does not require any particular relationship between the current tenant and the party requesting permanent residency for the request to be considered granted absent an express rejection, the ambiguity regarding petitioner's precise relationship with the prior tenant is of no consequence.

After petitioner's elderly relative died, petitioner submitted a remaining family member grievance to respondent's project manager, which the manager denied December 27, 2007. On [*2]January 29, 2008, respondent's borough director affirmed the project manager's denial. Petitioner then requested a formal grievance proceeding, resulting in a final determination denying her permanent occupancy as a remaining family member, which she now seeks to vacate. After oral argument, for the reasons explained below, the court grants the petition to the extent of vacating respondent's determination and remanding the proceeding to respondent for a new hearing before a new hearing officer. C.P.L.R. §§ 7803(3), 7806.

II.VACATUR OF RESPONDENT'S DETERMINATION

The court may vacate a determination based on an administrative hearing if that "determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion." C.P.L.R. § 7803(3). Under respondent's Grievance Procedures petitioner was entitled to a hearing of her grievance. Answer, Ex. G ¶ 6. At the hearing, petitioner had "the right to present evidence and arguments in support of the complaint, to controvert evidence relied on by the Authority," id. ¶ 10(c)(4), and to "a decision based solely and exclusively on the facts presented at the hearing." Id. ¶ 10(c)(5).

The hearing officer at petitioner's hearing repeatedly instructed on the record that she was not considering any allegations of fraud: e.g., "Forget the fraud issue we did not get to the fraud issue." Answer, Ex. R at 69. "If somebody is going to come in and tell me Sosy did not commit fraud, you know I don't want to hear it. It is so irrelevant." Id. at 83. In response to the hearing officer's instructions, petitioner dismissed a witness.

Despite emphatically delineating that she was not considering fraud and was refusing to hear evidence on fraud, the hearing officer concluded that petitioner "failed to obtain permission for occupancy" based on a finding that her request for permission "is not authentic": falsified—the very issue of fraudulent conduct the hearing officer would not consider or hear evidence on. Petition, Ex. A at 3. By denying petitioner the opportunity to present and controvert evidence on this determinative issue, the hearing officer failed to follow lawful procedure and denied petitioner the hearing to which she was entitled. C.P.L.R. § 7803(3); Simpson v. Wolansky, 38 NY2d 391, 395-96 (1975); McCarter v. Franco, 227 AD2d 358 (1st Dep't 1996); Poster v. Strough, 299 AD2d 127, 139 (2d Dep't 2002). See Mays-Watt v. Hernandez, 196 Misc 2d 56, 60 (Sup. Ct. Bronx Co. 2003).

Respondent attempts to support its determination nonetheless, by relying on evidence suggesting petitioner did not in fact reside with the former elderly tenant. Respondent points to evidence that petitioner's parents claimed petitioner in their family composition in a separate public housing unit and that her sister, who also lived in unit 18C at the 190 Marcy Avenue building, did not claim petitioner in unit 18C's family composition. The hearing officer, however, did not rely on any of that evidence and specifically excluded consideration of the sister's conduct as well as fraudulent conduct. E.g., 72A Realty Assoc. v. New York City Envtl. Control Bd., 275 AD2d 284, 286 (1st Dep't 2000).

As to the further evidentiary issues petitioner raises, because the hearing officer's determination is fundamentally flawed in relying on the excluded fraudulent conduct, the court need not decide whether the determination is affected by other evidentiary errors. Likewise, because the hearing officer's fundamental error requires vacatur of her determination, the court need not reach either the question whether substantive evidence supports the determination or the question whether that issue requires transfer to the Appellate Division. C.P.L.R. §§ 7803(3), 7804(g).

III.CONCLUSION

For the foregoing reasons, the court vacates the hearing officer's determination of January 27, 2010, and remands the proceeding to respondent for a new hearing before a new hearing officer. This decision constitutes the court's order and judgment on the petition. C.P.L.R. §§ [*3]7803(3), 7806. The court will mail copies to the parties' attorneys.

DATED: May 12, 2011

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LUCY BILLINGS, J.S.C.