IN RE: Manuel BECERRIL (2019)

Determination of respondent (N.Y.CHA), dated July 31, 2015, which denied petitioner's Remaining Family Member (RFM) grievance, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court pursuant to CPLR 7803[4] and 7804[g] by order of Supreme Court, New York County [Barbara Jaffe, J.], entered July 12, 2017) dismissed, without costs.

NYCHA's denial of petitioner's RFM grievance is supported by substantial evidence (see Matter of Peterson v. Olatoye, 138 A.D.3d 521, 522, 28 N.Y.S.3d 317 [1st Dept. 2016] ).  Contemporaneous entries in the tenant data summaries and interview records show that petitioner left his mother's (the tenant of record) household in September 1979 and never received written permission to return (see Matter of Vereen v. New York City Hous. Auth., 123 A.D.3d 478, 998 N.Y.S.2d 354 [1st Dept. 2014] ).  The hearing officer, who was not bound by the strict rules of evidence observed in the courts, properly received and relied upon those records (see Matter of Seeley v. City of New York, 269 A.D.2d 205, 702 N.Y.S.2d 299 [1st Dept. 2000];  Matter of Blanco v. Popolizio, 190 A.D.2d 554, 555, 593 N.Y.S.2d 504 [1st Dept. 1993] ).  Moreover, petitioner is not listed on any of his mother's affidavits of income (see Matter of Blas v. Olatoye, 161 A.D.3d 562, 78 N.Y.S.3d 15 [1st Dept. 2018], citing Matter of Carmona v. New York City Hous. Auth., 134 A.D.3d 404, 405, 20 N.Y.S.3d 69 [1st Dept. 2015], lv denied 26 N.Y.3d 1114, 26 N.Y.S.3d 512, 46 N.E.3d 1065 [2016] ).

NYCHA's alleged knowledge of petitioner's unauthorized occupancy does not estop it to deny petitioner RFM status (Matter of Adler v. New York City Hous. Auth., 95 A.D.3d 694, 943 N.Y.S.2d 892 [1st Dept. 2012], lv dismissed 20 N.Y.3d 1053, 961 N.Y.S.2d 828, 985 N.E.2d 423 [2013];  see also Matter of McBride v. New York City Hous. Auth., 140 A.D.3d 415, 31 N.Y.S.3d 505 [1st Dept. 2016] ).

Petitioner contends that NYCHA deprived him of due process by failing to appoint a guardian ad litem (GAL) for him before the administrative hearing, at Steps I or II of the grievance process.  On the record before us, this contention is unavailing.  Petitioner made no request for a reasonable accommodation for his disability, i.e., the early appointment of a GAL (see e.g. Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014] ).  The record does not establish that petitioner's intellectual and mental health disabilities were so debilitating as to have been apparent to NYCHA staff members who interacted with him during the grievance process (see e.g. Administrative Code of City of N.Y. [New York City Human Rights Law] § 1–807[15] ).

Petitioner failed to show that the earlier appointment of a GAL would have affected the outcome of the proceedings.  Despite the GAL's zealous representation at the administrative hearing, petitioner was unable to offer testimony or documentation sufficient to overcome the deficiencies in his case, in particular, his mother's failure to list him as a household member in years' worth of annual income affidavits.  Nor did petitioner's disabilities entitle him to bypass NYCHA succession rules and the hundreds of thousands of persons, including numerous disabled persons, ahead of him on the waiting list to succeed to his mother's apartment (see Rosello v. Rhea, 89 A.D.3d 466, 467, 931 N.Y.S.2d 873 [1st Dept. 2011];  see also Felix v. New York City Tr. Auth., 324 F.3d 102, 107 [2d Cir. 2003] [Americans with Disabilities Act does not authorize preference for disabled persons] ).

The record belies petitioner's additional argument that he was deprived of due process by the hearing officer's failure to scrutinize the evidence sufficiently and issuance of a perfunctory determination devoid of analysis.

We have considered petitioner's remaining contentions and find them unavailing.