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In Re Carlos Gutierrez v. John B. Rhea

April 11, 2013


Matter of Gutierrez v Rhea

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 11, 2013

Gonzalez, P.J., Acosta, Saxe, Gische, JJ.

In this proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Paul Wooten, J.], entered July 11, 2011), to annul the determination of respondent New York City Housing Authority (NYCHA), dated June 2, 2010, which approved the decision of the Hearing Officer denying petitioner's remaining-family-member grievance, the petition is unanimously granted, without costs, the determination is annulled, and the matter is remanded for further proceedings in accordance with this decision.

Petitioner Carlos Gutierrez (Carlos) seeks to succeed to the tenancy of his late mother, Amparo Gutierrez (Amparo), as a remaining family member (RFM) in an NYCHA apartment. At the time of her death, Amparo was the tenant of record at 911 FDR Drive, apartment 5A, in the Jacob Riis Houses, a public housing complex owned and operated by NYCHA. Amparo had lived in the subject apartment for approximately 50 years, and throughout her tenancy, paid her rent on time and was in good standing with her landlord. She and her husband raised her four children, including Carlos, in the apartment. Carlos moved out in January 1975, when he was approximately 21.

On September 13, 2004, the then 74-year-old Amparo, who was widowed in 2001, wrote to NYCHA, requesting that Carlos be permitted to move back in with her to take care of her. Her letter request described her "poor health and various medical needs which include[d] congenital heart failure, diabetes, remission from cancer and the need for an oxygen tank 24 hours a day . . . requir[ing] that she depend upon others to assist her in the simplest tasks." It continued, "If my son were able to stay in my house this would be a great help and a tremendous relief and comfort to me."

Amparo then completed the required NYCHA form request to add a tenant to a lease (see 24 CFR 966.4[a][1][v]). The form was dated September 23, 2004, and signed by both mother and son. That year, Carlos was 50 years old, psychiatrically disabled, and receiving Supplemental Security Income as his sole source of income. He provided NYCHA with a birth certificate, a copy of his social security card, proof of income, and proof of his prior address.

NYCHA did not act on Amparo's application within 90 days, as required by its internal rules (see NYCHA Management Manual, ch IV, Occupancy, subdivision IV, Changes in Family Composition). However, Amparo informed the management office that Carlos had moved in with her, and she listed Carlos and his income on her 2003, 2004, 2005, and 2006 income affidavits for the apartment. She also named him in the section of the affidavit of income requiring a description of "family composition" as a person living with her in her apartment. NYCHA's notes indicate that Amparo went to the management office on September 16, 2005 regarding an "unauthorized occupancy," but that "NYCHA told [Amparo] in 2004 that everything was ok."

On July 13, 2006, NYCHA conducted a criminal background check on Carlos, and found that he had a 10-year-old burglary conviction. Although, under NYCHA's internal rules, Amparo should have been given the opportunity to show that her son was rehabilitated (see Applications and Tenancy Administration Department Manual, ch V[F][2] "Department Manual"), NYCHA made no inquiry of Amparo or Carlos in 2006 as to Carlos's conviction, and gave neither of them an opportunity to present evidence of rehabilitation at that time.

Having deemed Carlos ineligible due to a criminal conviction, a Housing Manager was required to notify Amparo that he was required to vacate the premises within 15 days (General Management Directive-3716 at VIII[B][1]), and then to initiate Termination of Tenancy proceedings if Carlos failed to leave (id. at VIII[B][2]). However, no one told Amparo or Carlos that Carlos had to vacate the premises in July of 2006, and no termination proceeding was initiated. In fact, the record contains no evidence that the Housing Authority issued any oral or written decision on the 2004 application to add Carlos to the lease.

On May 12, 2007, Amparo died. Carlos promptly notified the Housing Authority of his mother's death, and he continued to pay the monthly rent for the apartment. On July 30, 2007, Carlos filed a second request to be added to the lease; the request had been signed by Amparo on March 26, 2007. NYCHA issued a written order denying the application on August 9, 2007, on the grounds that: (1) Amparo had died prior to its filing; and (2) Carlos was ineligible to gain any rights to his mother's tenancy until May 28, 2008. Assuming Carlos received this notice, it was the first indication he received that there was a problem with his tenancy.

On February 5, 2008, NYCHA commenced a holdover proceeding against Carlos in Civil Court.*fn1 The next day Carlos met with a project manager at the housing complex to claim RFM status. The project manager informed him that he was not entitled to stay in the apartment as an RFM because he was not part of the family composition at the time of his mother's death.

NYCHA's notes from this meeting state that Amparo's first request to add her son to her tenancy was denied because Carlos was ineligible until May 28, 2008. They state that Amparo's second request was denied because it was submitted after her death. By letter dated April 10, 2008, NYCHA notified Carlos that he had until April 24, 2008 to submit documentation, or request a personal interview with Borough Management, to support his RFM ...

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