Petitioner brings this Article 78 proceeding to reverse New York City Housing Authority's ("NYCHA") determination denying petitioner succession rights as a remaining family member to an apartment leased to petitioner's grandmother. Petitioner asserts that the determination was arbitrary and capricious because it was based upon unreasonable occupancy rules authored by NYCHA. NYCHA submits an answer and memorandum of law in opposition to the petition. Petitioner submits a reply and memorandum of law.

Petitioner's ailing grandmother lived alone in a one-bedroom apartment. Petitioner allegedly

moved into the apartment in February or March of 2009 to assist her grandmother. Petitioner's mother, the grandmother's NYCHA representative, alleged that she verbally requested approval [*2]to add petitioner as an occupant of the apartment,^[FN1] but the building manager instructed her to make the request at the time of the annual recertification process.

Petitioner's grandmother's June 2009 annual income affidavit indicated she lived alone. On July 17, 2009, petitioner's grandmother made a written request for that the development manager to grant permission to permanently allow petitioner to join her household. The development manager denied the request on October 28, 2009 because approval would have created an overcrowded apartment. See Order to Show Cause, Exhibit B. NYCHA's occupancy standards prohibit two adults who are neither married nor registered as domestic partners from living in a one-bedroom apartment. See Verified Petition, Exhibit A. However, a single adult with a child less than six years old may live in a one bedroom apartment. See id.

The record is silent on whether NYCHA informed petitioner's grandmother of the development manager's decision. Petitioner became aware of the denial on April 14, 2010, shortly after her grandmother died. Thereafter, NYCHA commenced a holdover proceeding against the petitioner. On March 1, 2011, the parties stipulated to provide petitioner with an opportunity to challenge the 2009 denial. Petitioner filed a remaining family member grievance on March 16, 2011. The grievance was denied by the project manager on March 18, 2011 because petitioner was not an authorized member of the household and she did not reside in the apartment at least one (1) year prior to her grandmother's death. See Verified Answer, Exhibit N. The borough director agreed with the disposition of the Project Manager, stating:

Grievant Jessica Figueroa, is not part of the original family composition, tenant of record did request permanent permission for her to join the household 7/14/09 but was denied because the approval would have created an overcrowded situation. I concur with the manager's decision.

Verified Answer, Exhibit P. Thereafter, a formal hearing was held before an Impartial Hearing Officer. The hearing officer determined that:

Even if the request for Grievant's residence had been properly submitted and

processed in 2/09, management could not, in view of NYCHA's occupancy standards, have approved an additional person in the subject one-bedroom apartment. Whether NYCHA's rules in this regard are inappropriate is not reviewable in this forum.

Order to Show Cause, Exhibit B, Decision from Impartial Hearing Officer, dated March 22,

2012.

The present Article 78 proceeding followed. Petitioner argues that NYCHA's occupancy standards, as they pertain to one-bedroom apartments, are arbitrary and capricious because they distinguish between two adults relatedby marriage or domestic partnership and two adults otherwise related. Petitioner also argues that strict adherence to the written permission requirement for remaining family member status is arbitrary and capricious. NYCHA argues that petitioner's claim is barred by the statute of limitations and petitioner lacks standing because only a tenant of record may challenge a determination denying permanent occupancy. NYCHA also argues that it did not violate petitioner's rights under the New York State Human Rights [*3]Law because the Court of Appeals has ruled that this law only precludes distinctions between married and single status. See Respondent's Memorandum of Law in Support of its Verified Answer, pg. 2.

The four-month statute of limitations has not expired. In order for the statute of limitations to be triggered, an agency's determination must be final and binding, giving notice to the petitioner that all administrative remedies have been exhausted, thereby aggrieving the petitioner. See Carter v. State, 95 NY2d 267, 716 N.Y.S.2d 364 (2000); Edmead v. McGuire, 67 NY2d 714, 499 N.Y.S.2d 934 (1986); Clinton v. Bayview Houses/NYCHA, 25 Misc 3d 1222(A), 906 N.Y.S.2d 771 (Sup. Ct., Kings County 2009); Williams v. NYC Hous. Auth., 8 Misc 3d 1009(A), 801 N.Y.S.2d 782 (Sup. Ct., Kings County 2005). But if the agency created an impression that the decision was not conclusive then the limitations period does not commence running. See id.

Petitioner's grandmother's July 2009 written request, entitled "permanent permission request for a family member/additional person to live with a development tenant," included the following: "NOTE TO TENANT . . . [i]f permanent permission is not granted (disapproved), you may request a grievance hearing to review the Development Manager's decision . . . ." Though the request was disapproved and executed by a housing assistant in July 2009 and by a manager in October 2009, NYCHA did not establish that it notified petitioner's grandmother that the request was disapproved. Moreover, the request form gave the impression that it was not conclusive and there were further administrative remedies to be had, namely a grievance hearing. As a result, the statute of limitations was not triggered. See Stephens v. NYC Hous. Auth., 293 AD2d 318, 739 N.Y.S.2d 719 (1st Dept. 2002); Mays-Watt v. Hernandez, 196 Misc 2d 56, 763 N.Y.S.2d 707 (Sup. Ct., Bronx County 2003) (The tenant did not feel an unambiguously final impact from the 1998 administrative decision until the 2002 denial of her application for succession rights. It is at such time that the statute of limitations began to run.).

With respect to the hearing officer's determination, it is well established law that judicial review of an agency's determination is limited to whether the determination was arbitrary and capricious or an abuse of discretion or made in violation of a lawful procedure or was affected by an error of law. See CPLR § 7803; McLeon v. NYCHA Hope Gardens, 48 AD3d 686, 852 N.Y.S.2d 323 (2d Dept. 2008). This Court is not permitted to substitute its judgment for that of the administrative agency as due deference must be rendered to the agency as long as a rational basis exists for the agency's finding. See Pell v. Board of Educ., 34 NY2d 222, 356 N.Y.S.2d 833 (1974).

Petitioner claims that permission to reside in her grandmother's apartment was approved [*4]implicitly without written authorization because NYCHA knew about her residency from February 2009 or March 2009. Petitioner only offers her testimony to support the preceding assertion, but it is contradicted by her grandmother's 2009 income affidavit, which indicates that her grandmother was the sole occupant of the premises. Notwithstanding the foregoing, permission to reside in a NYCHA apartment cannot be implied. See Matter of Schorr v. NYC Dept. of Hous. Preserv. & Dev., 10 NY3d 776, 857 N.Y.S.2d 1 (2008); Matter of Miney v. Donovan, 68 AD3d 876, 890 N.Y.S.2d 616 (2d Dept. 2009); Matter of Perez v. NYC Hous. Auth., 99 AD3d 624, 952 N.Y.S.2d 876 (1st Dept. 2012).

It is axiomatic that NYCHA has the authority to promulgate rules regarding occupancy. See Pub. Hous. Law § 37. Limiting occupancy to certain familial relationship with the tenant does not on its face amount to discrimination based upon marital status. See Levin v. Yeshiva Univ., 96 NY2d 484, 730 N.Y.S.2d 15 (2001); Hudson View Prop. v. Weiss, 59 NY2d 733, 463 N.Y.S.2d 428 (1983); Latoni v. Sherman Square Realty Corp., 2005 WL 6737666 (Sup. Ct., New York County 2005). Here, petitioner's relationship to her grandmother was the key to NYCHA's determination, not petitioner's marital status. If petitioner was married the same result would have ensued. Thus, NYCHA's determination was rationale.

Accordingly it is, ADJUDGED that the petition is denied and the proceeding is

dismissed.

This constitutes the decision, order, and judgment of this Court.

ENTER,

_______________________

Genine D. Edwards

A.J.S.C.