IN RE: Alonzo CRAWFORD (2020)

Order and judgment (one paper), Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about June 28, 2019, denying the petition to annul the determination of New York City Housing Authority (N.Y.CHA), dated July 23, 2018, which denied, after a hearing, petitioner's remaining family member (RFM) grievance following the death of his grandmother, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously vacated, the petition treated as one transferred to this Court for de novo review, and, upon such review, the determination, unanimously confirmed, the petition denied, and the proceeding dismissed, without costs.

The petition “raised an issue of substantial evidence” and “should have been transferred to this Court pursuant to CPLR 7804(g).” As such, “we will ‘treat the substantial evidence issues de novo and decide all issues as if the proceeding had been properly transferred’ ” (Matter of Roberts v. Rhea, 114 A.D.3d 504, 504, 979 N.Y.S.2d 816 [1st Dept. 2014], quoting Matter of Jimenez v. Popolizio, 180 A.D.2d 590, 591, 580 N.Y.S.2d 302 [1st Dept. 1992]).

There is substantial evidence in the record to support NYCHA's determination denying the RFM grievance, because NYCHA never gave written permission for petitioner to live in the subject apartment. Moreover, petitioner's grandmother lived in a one-bedroom unit, and petitioner's (and his two children's) residence would have caused an impermissible overcrowded living situation. For this reason and “[u]nder its rules, NYCHA could not have granted [petitioner] permanent permission to reside in his [grand]mother's apartment, and thus could not have granted his request for RFM status” (See Matter of Aponte v. Olatoye, 30 N.Y.3d 693, 698, 70 N.Y.S.3d 904, 94 N.E.3d 466 [2018]).

The Hearing Officer rationally found that NYCHA, “in effect, afforded temporary residency status,” to petitioner because he tacitly was allowed to live in the unit to care for his grandmother, who suffered from dementia (Matter of Aponte, 30 N.Y.3d at 698, 70 N.Y.S.3d 904, 94 N.E.3d 466). This temporary residency status was “effectively ․ the accommodation to which [ ]he would have been entitled ․ had NYCHA formally engaged in an interactive dialogue aimed at reaching a reasonable accommodation” (Matter of Blas v. Olatoye, 161 A.D.3d 562, 563, 78 N.Y.S.3d 15 [1st Dept. 2018]).

Further, petitioner's challenges to the validity of NYCHA's policies concerning overcrowding, permanent permission, and RFM applications are waived because they were not raised below. In any event, the challenged policies merely accommodate federal law and are not formal rules and regulations of NYCHA (see Matter of Abdil v. Martinez, 307 A.D.2d 238, 241, 763 N.Y.S.2d 262 [1st Dept. 2003][Deeming a permanent permission request denied after 60 days is part of “the ‘written consent’ requirement[,] ․ a policy that only accommodates federal law, ․ not a formal ‘rule or regulation’ ”]; see also Matter of Daniels v. New York City Hous. Auth., 66 A.D.3d 579, 580, 888 N.Y.S.2d 11 [1st Dept. 2009]; 24 CFR 960.202[a], 960.203[c], 966.4[a][1][v]; 24 CFR 960.257[d]; 24 CFR 966.4[d][3]).