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Issue in this Case Deals with whether Petitioner is Entitled to Status of Permanent Family Member


A New York Family Lawyer said that, petitioner brings this Article 78 proceeding against respondents in his capacity as Commissioner of the New York City Housing Authority, and the New York City Housing Authority (“NYCHA”), seeking a court order reversing and annulling NYCHA’s termination of her mother’s Section 8 voucher and NYCHA’s denial of petitioner’s application for succession rights to her mother’s Section 8 voucher. Petitioner was born in 1960 and is 49 years old. Petitioner has been diagnosed with and treated for schizophrenia paranoia. In 1983, petitioner received disability benefits from the Department of Health and Human Services for this disability. In 1986, when petitioner was about 26 years old, she and her mother, who is moved into Apartment 2B at 99-25 42nd Avenue in Corona, New York. Petitioner has had some periods of employment, most recently as a clerk in accounts receivable at Saint Vincent’s Catholic Medical Center home care facility in Rego Park, New York, although it is unknown whether she is presently employed in this capacity.

A New York Custody Lawyer said that, in 2002, petitioner applied for and was granted a Section 8 voucher. According to the copies of the Housing Assistance Payment Contracts between NYCHA and the owner of the Apartment from 2002 and 2003, both petitioner and her mother were listed as tenants and authorized residents of the Apartment. Petitioner was also listed on the Section 8 affidavits of income for recertification purposes. In an effort at independence, petitioner left the Apartment in November 2004 and established a separate residence with her godmother. NYCHA was duly notified. Petitioner maintained a close relationship with her mother while she was out of the Apartment Both petitioner and her mother experienced problems with their health over this period of time. In 2008, petitioner and her mother decided that it would be easier for them to take care of each other and their various health conditions and disabilities if they were living together again. They also mutually desired to reduce their individual expenses by living together. In advance of petitioner moving back in, in June 2008, petitioner and her mother formally requested permission for petitioner to move back into the Apartment NYCHA provided petitioner’s mother with a number of documents to complete and return to NYCHA. After returning the paperwork to NYCHA’s offices, petitioner and her mother were told that petitioner could not move back into the Apartment without written confirmation from NYCHA. They never received any such written confirmation. However, in October 2008, petitioner’s mother received a letter from NYCHA indicating that her share of the rent would increase as of November 1, 2008, presumably because petitioner’s income was now being calculated into the tenant’s share of rent Petitioner contacted NYCHA over the telephone and asked whether a decision had been made about permission for her to move into the Apartment. Petitioner sets forth that the NYCHA representative that she spoke to told her that she had been granted permission to move back in. Petitioner moved back to the Apartment on November 4, 2008.

A Suffolk County Family Lawyer said on October 22, 2009, petitioner’s mother was struck by a vehicle and died shortly thereafter from the injuries. One week later, NYCHA cancelled the Section 8 voucher. On or about December 23, 2009, after an inquiry by petitioner’s attorney about her rights to succeed to the Section 8 voucher, NYCHA sent the attorney a letter asserting that the voucher terminated with the death of petitioner’s mother. Petitioner was denied succession rights because she had only been “conditionally” re-added as a resident family member of the Apartment in 2008.

A Suffolk County Family Lawyer said that, petitioner argues that she has been denied due process and that NYCHA has violated its own regulations. She contends that she was never given notice or an opportunity to dispute NYCHA’s classification of her as a conditional and not a permanent family member. Petitioner further argues that NYCHA exceeded its statutory authority in distinguishing between permanent and conditional family members and that she was never given an opportunity to dispute NYCHA’s determination at an administrative hearing.

A Suffolk County Custody Lawyer said the issue in this case is whether petitioner is entitled to the status of permanent family member and the right to succeed to her mother’s Section 8 voucher.

The court in deciding the case said that, NYCHA asks the court to reject petitioner’s claims for several reasons. First, NYCHA argues that petitioner’s mother requested conditional permission for her daughter to resume living in the Apartment. Second, petitioner would not have been eligible for permanent permission to live in the Apartment under NYCHA’s occupancy policy. Third, the permission request form clearly states that residents with conditional permission to reside in the premises arc not entitled to succeed to a Section 8 subsidy. Fourth, the landlord certified that petitioner was eligible for conditional residency. Fifth, NYCHA approved petitioner’s conditional residency request and provided her mother, with a copy of the approved request form. Respondents argue that NYCHA’s policy regarding occupancy and succession rights is a lawful exercise of its discretion and desirable rule-making designed to maximize NYCHA’s ability to distribute a scarce resource, Section 8 vouchers. Respondents assert that NYCHA’s policy of granting qualified adult children the status of conditional permission to reside with a parent, in order for the adult child to care for that parent, but not allowing the care giver to remain after the death of the parent, prevents those families from obtaining priority over other families that are on waiting lists for Section 8 vouchers. Respondents further maintain that NYCHA’s succession policy does not require even an informal conference prior to terminating a subsidy, and that even if such a conference took place in this case, it would not change the outcome for petitioner.

Under NYCHA’s policy, only family members with permission for permanent residency in the household are eligible to succeed to a Section 8 voucher. A review of NYCHA’s policy for Section 8 tenants regarding occupancy and succession as of July 6, 2007, reveals that under no circumstances can a biologically related adult child of an authorized family member ever be granted permanent status. Permanent permission to join a household is restricted to: spouses or registered domestic partners of any authorized family member; dependent children of an added spouse or registered domestic partner; adults legally adopted by an authorized family member; and children under 18 years old born to or adopted by an authorized family member who is not currently residing in the household.

The court rejects those of NYCHA’s arguments premised on the assumption that petitioner and/or her mother chose to request only conditional permission for petitioner to return to living in the Apartment. It is uncontroverted that the mother and her daughter were given a form checklist of documents that they were required to submit when they asked NYCHA for permission for petitioner to rejoin the household in 2008. The checklist itself is a pre-printed form which was already filled out with a check-mark next to the word “conditional” (as opposed to the other options of “permanent” or “temporary”) when the form was provided to petitioner and her mother. The signed acknowledgment of receipt at the bottom of the form did not acknowledge the accuracy of the form, only that it was received by petitioner. One of the documents from the checklist that petitioner and her mother were required to submit was the Permission Request Form. A copy of the Permission Request Form that petitioner and her mother completed is annexed to respondents’ answer. There is no indication anywhere on that form as to exactly what status the tenant is requesting for the additional person, except at the very top of the form.

Nothing on the form allowed the applicant or the proposed additional family member to choose whether permanent or conditional permission was being sought. Petitioner’s mother either had no opportunity to request permanent status for her daughter or, if the underlined word “permanent” indicates anything, she may have believed she was affirmatively requesting permanent status for her daughter. The fact that the permission request form states that residents with conditional permission to reside in the premises are not entitled to succeed to a Section 8 subsidy is meaningless if petitioner and her mother were requesting that petitioner be granted permanent permission to reside in the Apartment. It cannot be said that petitioner or her mother knowingly waived petitioner’s right to seek succession rights by choosing to seek only conditional permission for petitioner to reside in the Apartment. Similarly, the Landlord Certification for Permission that the landlord filled out and returned to NYCHA does not have an option for either permanent or conditional status; the only option on that form is for conditional status. Moreover, neither petitioner nor her mother filled out or signed that form; rather, it was filled out and signed by the landlord to the Apartment There was no affirmative waiver of petitioner’s right to seek succession to the Section 8 voucher.

The court also rejects NYCHA’s contention that NYCHA provided petitioner’s mother, with a copy of an approved conditional residency request form. This argument is given merely lip service in the preliminary statement of NYCHA’s memorandum of law and is never authenticated with any documentary evidence in the exhibits annexed to respondents’ papers showing that the mother was ever sent a written approval. Even assuming, arguendo, that respondents mailed a copy of the Permission Request Form to petitioner’s mother after NYCHA had determined that petitioner could resume living in the Apartment, the portion of the Permission Request Form where NYCHA indicates whether permanent or conditional residency has been approved or disapproved was not completed. Written notice was not provided to the mother or her daughter indicating that her application for permanent residency had been denied.

NYCHA’s last remaining viable argument is that petitioner was never eligible for permanent residency. The issue that must be determined at the heart of this controversy, then, is whether the application of NYCHA’s policy of never granting permanent status to adult children returning to live with a parent voucher holder—as applied to petitioner and to similarly situated individuals—violates lawful procedure, is arbitrary or capricious, or is affected by an error of law. In determining this issue, it is necessary to examine the federal law that established the Section 8 Program, the Housing and Community Development Act of 1974. 42 U.S.C.A. § 1437f (the “Act”). The purpose of the Act was “to provide decent and safe housing through the private sector to certain ‘lower-income’ families, the elderly and the disabled.” The Act differed from early programs of federal housing assistance by providing government subsidized private housing instead of government constructed and managed public housing.

Furthermore, petitioner’s mother was entitled to written notice of NYCHA’s determination regarding her daughter’s status as a conditional resident only, which was effectively a denial of permanent residency status. According to NYCHA policy, petitioner’s mother would have been entitled to dispute the denial “at an informal conference with an employee at the level of Housing Manger or higher.” However, since there was a clear failure on NYCHA’s part to duly notify the mother in writing of the determination regarding her daughter’s residency status, neither petitioner nor her mother ever had the opportunity to contest this determination.

Accordingly, the court held that the petition is granted and the matter is remanded to NYCHA for a determination, consistent with these proceedings, as to whether petitioner should have been granted permanent permission to reside in the Apartment with the right to seek succession to the Section 8 voucher.

If you are in the same situation in the above mentioned case, seek the help of a Bronx Family Attorney and/or Bronx Order of Protection Attorney at Stephen Bilkis and Associates.

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