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In re Aponte

New York Court of Appeals

February 15, 2018

In the Matter of Jonas Aponte, Respondent,
Shola Olatoye, & c., et al., Appellants.

          Jane E. Lippman, for appellants.

          Leah Goodridge, for respondent.

          Letitia James, et al.; AARP et al., amici curiae.

          WILSON, J.

         Jonas Aponte brought this CPLR article 78 proceeding challenging the New York City Housing Authority's (NYCHA) determination denying him "remaining family member" (RFM) status with regard to his late mother's apartment. We now reverse the Appellate Division and reinstate Supreme Court's denial of Mr. Aponte's article 78 petition.

         In 2009, Mr. Aponte moved into his mother's one-bedroom apartment in a NYCHA-owned public housing development, and dutifully cared for her through her advanced dementia until she died in 2012. Two requests were submitted for Mr. Aponte to be granted permanent permission to live with his mother in her apartment; both were denied. Neither of the Apontes ever made a written request for Mr. Aponte to reside in the apartment on a temporary basis. [1]

         After his mother passed away, Mr. Aponte requested that he be allowed to lease her apartment as a "remaining family member." NYCHA denied his request, and a hearing officer subsequently agreed, finding that Mr. Aponte lacked permanent permission to reside in the apartment, and that management properly denied such permission because Mr. Aponte's presence would have violated occupancy rules for overcrowding. Overcrowding, which, among other circumstances is defined as when a single adult and an adult child live together in a one-bedroom apartment, under NYCHA rules, precludes a person from seeking permanent permission for residency in the apartment. A person lacking permanent permission to reside in an apartment is not eligible for RFM status. NYCHA adopted the hearing officer's decision in its final determination denying Mr. Aponte's grievance.

         Thereafter, Mr. Aponte commenced this article 78 proceeding, arguing that NYCHA's decision was arbitrary and capricious, that he had a right to his mother's apartment, and that NYCHA's actions violated federal, state, and New York City antidiscrimination laws. "In reviewing an administrative agency determination, [courts] must ascertain whether there is a rational basis for the action in question or whether it is arbitrary and capricious" (Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 N.Y.2d 144, 149 [2002]). "Arbitrary action is without sound basis in reason and is generally taken without regard to facts" (Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 [1974]). Moreover, "courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise" (Peckham v Calogero, 12 N.Y.3d 424, 431 [2009]).

         Under its rules, NYCHA could not have granted Mr. Aponte permanent permission to reside in his mother's apartment, and thus could not have granted his request for RFM status (Matter of Ortiz v Rhea, 127 A.D.3d 665, 666 [1st Dept 2015] ["(t)he only written consent petitioner ever acquired to occupy the apartment was as a temporary resident, which did not qualify her for RFM status"]; see also Matter of Banks v Rhea, 133 A.D.3d 745, 745 [2d Dept 2015] [petitioner not eligible as a remaining family member when record "established that the petitioner never obtained written permission for permanent residency from the housing management"]). However, NYCHA's rules contemplate that a tenant may require a live-in home-care attendant, either for the duration of a transient illness or the last stages of life, and its rules expressly allow for a live-in home-care attendant as a temporary resident, even if the grant of permission would result in "overcrowding, " without regard to whether the home-care attendant is related to the tenant. Mr. Aponte was, in effect, afforded temporary residency status. Essentially, Mr. Aponte is arguing that NYCHA's policy is arbitrary and capricious because it does not allow him to bypass the 250, 000-household waiting line as a reward for enduring an "overcrowded" living situation while caring for his mother. NYCHA could adopt the policy Mr. Aponte advocates, to encourage people to care for elderly relatives by giving them a succession priority over others, but we cannot say on the record before us that its adoption of a different policy, prioritizing children in need and persons facing homelessness when allocating its insufficient stock of public housing, is arbitrary or capricious.

         Finally, to the extent Mr. Aponte argues that NYCHA violated federal, state and city antidiscrimination laws by refusing to provide a reasonable accommodation for his mother's disability by denying him permanent residency permission, that issue is not properly before us, as it was not raised at the administrative hearing (see Peckham, 12 N.Y.3d at 430). Moreover, Ms. Aponte's Affidavits of Income submitted to NYCHA affirmatively stated she did not wish any accommodation for dementia. Despite the urging of Mr. Aponte and amici, this appeal does not raise the question of whether and in what circumstance NYCHA might be required to do more than grant temporary residence in an overcrowded apartment to make a reasonable accommodation.

         Accordingly, the Appellate Division order should be reversed, without costs, and the order of Supreme Court reinstated.

          RIVERA, J. (concurring):

         I agree that the Appellate Division should be reversed because, on this record, petitioner Jonas Aponte failed to establish that the New York City Housing Authority (NYCHA) erred in denying him remaining family member status or that he was discriminated against due to his mother's disability. I write separately to address petitioner's associational discrimination claim, which I believe is properly before us, even if the claim ultimately fails on the merits. I also write to address NYCHA's apparent policy and practice of treating identically all disabled tenants who request a full-time caretaker, without first engaging in the interactive process required by law to determine the tenant's needs and what constitutes a reasonable accommodation under the particular circumstances of each case. This one-size-fits-all approach violates the agency's obligations under the Americans with Disabilities Act (42 USC § 12112), the New York State Human Rights Law (Executive Law § 296), and the New York City Human Rights Law (Administrative Code of City of NY § 8-107).

         The facts that gave rise to this case disclose a striking and inexcusable breakdown in NYCHA's procedures for providing reasonable accommodations to people with disabilities. Petitioner's mother had advanced dementia. She repeatedly advised NYCHA that she needed her son to live with her as a full-time caretaker in order to accommodate her disability [2]. Nevertheless, NYCHA failed to refer Ms. Aponte's case to NYCHA's Reasonable Accommodations Coordinator, failed to provide Ms. Aponte or her son with an explanation of the accommodation services available to Ms. Aponte, failed to engage Ms. Aponte or her son in an interactive process to determine the scope of Ms. Aponte's disability or what accommodations would allow her to enjoy equal use of her apartment, and failed even to expressly provide her son with Temporary Residency status, which NYCHA concedes he was entitled to as his mother's caretaker. Indeed, NYCHA ...

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