Pursuant to CPLR Article 78, petitioner Ali Ammar seeks annulment of NYCHA's final decision of February 11, 2014, denying him succession rights to the apartment of his grandmother, Azucena Acuna, a tenant at 229 West 62nd St. Apt. 4C, NY, NY, who died on September 30, 2011; or in the alternative, remand to NYCHA for further proceedings so that Mr. Ammar may have an opportunity to present witnesses.

NYCHA's hearing officer found that Mr. Ammar failed to establish that he had written permission from NYCHA to live in the apartment for a least one year prior to the death of his grandmother. Mr. Ammar does not dispute that he lacks written permission, but argues that his grandmother, who spoke little English, timely applied for permission —three times: June 2010, April 2011 and August 2011. She included him in the family composition annual form she submitted July 7, 2011. NYCHA issued a July 26, 2011 notice accusing Ms. Acuna of harboring an unauthorized occupant and threatening to terminate her lease. On September 27, 2011, NYCHA denied the August 2011 request explaining that Mr. Ammar was already residing in the apartment which constitutes misrepresentation.

Mr. Ammar, who appeared pro se and suffers from a speech disability, asked to present as a witness Ms. Hernandez, an elderly neighbor who would testify that she accompanied Mr. Ammar's grandmother when she reapplied in April 2011 following her initial timely request for permission for Mr. Ammar to join the household in the summer of 2010. Mr. Ammar offered an August 13, 2010 letter of Mr. Ammar's employment to corroborate his testimony that in June 2010, NYCHA requested his employment records which he secured and gave it to his grandmother who gave it to NYCHA

Mr. Ammar requested NYCHA log books to show that his grandmother had indeed [*2]visited local management office and could corroborate that she applied for permission on particular dates. The reason for visits is recorded in log books. Counsel explained the log books were destroyed by Hurricane Sandy, but there was no actual evidence of the destruction nor an assessment of the impact of the spoliation. See Kirkland v NYCHA, 236 AD2d 170 (1st Dept 1997)(NYCHA's destruction of a stove so prejudiced the stove manufacturer that an impleader claim was dismissed even though the destruction was not intentional).

There is no dispute that on the date of the hearing, Ms. Hernandez was barred from the building on grounds that her photo ID had expired, and the hearing concluded without her testimony. Mr. Ammar was told by the hearing officer that he could submit a written statement from Ms. Hernandez, which he did. Nor is it disputed that Mr. Wilson, the NYCHA representative purportedly present at the meeting with petitioner's tenant grandmother, did not testify despite Mr. Ammar's request that he do so. Mr. Wilson could have testified about what he did when he met with Ms. Acuna. Specifically, did he search for the 2010 application before completing the April 2011 application. Another relevant inquiry of Mr. Wilson is whether in April 2011 he saw the August 2010 employment letter. As the transcript of the hearing reveals that Mr. Ammar did not waive the testimony of either proposed witness and as the issue was clearly raised at the hearing, it is properly raised here.

NYCHA argues that this proceeding should be transferred to the Appellate Division for a review of the substantial evidence. However, this objection is premature, as CPLR 7804(g) requires that where an issue of substantial evidence is raised, the court shall first dispose of such objections as "could terminate the proceeding."

Judicial review is confined to the record adduced before the agency. Featherstone v Franco, 95 NY2d 550, 554 (2000). A determination is considered arbitrary when it is "taken without regard to the facts." Pell v Bd. of Educ., 34 NY2d 222, 231 (1974). Here, the agency's trial record is not complete. For this reason, Mr. Ammar should have an opportunity to present witnesses and make a record as to whether his tenant grandmother timely sought written permission for him to be added to the household composition.

Accordingly, it is

ORDERED that the matter is remanded to NYCHA for a new hearing consistent with the foregoing.

Andrea Masley, JSC