MICHAEL D. STALLMAN, J.

In this Article 78 proceeding, petitioner seeks to annul the determination of respondent New York City Housing Authority, made in December 2009, which denied him the right to succeed to his deceased father's Section 8 subsidy. In the alternative, petitioner seeks a hearing to contest the determination.

The New York City Housing Authority raises the statute of limitations and laches as defenses. It also argues that its determination was not arbitrary and capricious, because petitioner joined his father's household as an adult child, given its policy that denies an adult child of a recipient of a Section 8 subsidy a right to continue receiving the subsidy.

BACKGROUND

Petitioner Menachem Klein is the son of Samuel Klein, who was the tenant of record of a two-bedroom apartment at 94 Ross Street in Brooklyn, owned by respondent Bedford Gardens Company (the landlord). (Verified Answer ¶¶ 5, 32.) According to petitioner's attorney, the apartment building is part of the Mitchell-Lama Housing program, supervised by the New York City Department of Housing Preservation & Development (HPD). (Walder Affirm. ¶ 3.)

Samuel Klein was the recipient of a Section 8 voucher from respondent New York City Housing Authority. (Verified Petition ¶ 38; Verified Answer ¶ 14.) In December 2006, Samuel Klein submitted a request for permission to add petitioner, who was then 70 years old, to the household. (Verified Answer, Ex F.) The request form states, in pertinent part:

(Id.) In May 2006, the landlord executed a "LANDLORD CERTIFICATION FOR CONDITIONAL PERMISSION FOR A FAMILY MEMBER/ADDITIONAL PERSON TO LIVE WITH A SECTION 8 FAMILY." (Verified Answer, Ex G.) The certification states, in pertinent part:

(Id.) According to NYCHA, it granted conditional permission on December 8, 2006, as reflected on a copy of Samuel Klein's request for permission to add petitioner, in the space marked "For Office Use Only." (Verified Answer, Ex F.)

Samuel Klein died in January 2009. (Verified Petition ¶ 39; Verified Answer ¶ 15.) A letter dated December 7, 2009 addressed to petitioner from "Ms. V. Kan, Housing Assistant, Brooklyn — 3" states, "YOU WERE ADDED IN THE HOUSEHOLD EFF. 1/1/07 CONDITIONALLY. AS PER OUR PROCEDURE, YOU HAVE NO SUCCESSION RIGHTS TO CONTINUE TO RECEIVE SECTION-8 SUBSIDY." (Verified Petition, Ex 1.) According to the petition, NYCHA also sent a Notice of Termination of Section 8 Subsidy (T-1 Notice) dated December 7, 2009, addressed to petitioner, stating that the Section 8 subsidy was to be terminated because of the death of the tenant. (Verified Petition ¶ 39; Klein Aff. ¶ 7.) The T-1 Notice states, in relevant part:

(Verified Petition, Ex 2.) Petitioner apparently checked off the box requesting a hearing "to contest termination of my Section 8 rent subsidy", and NYCHA purportedly received a copy on January 14, 2010. (Id.) It is undisputed that NYCHA did not provide a hearing to petitioner. (Verified Answer ¶ 15.)

According to NYCHA, it continued issuing subsidy payments on Samuel Klein's behalf until January 2010, at which time NYCHA recouped the payments it had issued after Samuel Klein's death. (Verified Answer ¶ 35.) NYCHA asserts that it never issued subsidy payments on behalf of petitioner. (Id.)

Petitioner's attorney claims that the landlord served a notice to quit upon petitioner in June 2010 (Walder Affirm. ¶ 3). However, by a letter dated April 7, 2011, HPD approved petitioner's request for succession rights to the Mitchell-Lama apartment. (Verified Petition, Ex 3.)

In August 2011, the landlord commenced a non-payment proceeding for rent arrears in the Housing Court, in Kings County, Bedford Gardens Company v Klein, L & T Index No. 87404/2011. (Verified Petition, Ex 4.) Petitioner claims that the arrears began to accrue following NYCHA's termination of the Section 8 subsidy. Petitioner asserts that Social Security is his only source of income. (Klein Aff. ¶ 2.)

On February 15, 2012, petitioner commenced this Article 78 proceeding, which seeks to annul NYCHA's determination denying him succession rights to his deceased father's Section 8 subsidy. In the alternative, petitioner seeks a hearing to contest the determination. NYCHA answered the petition, asserting that petitioner's claims are barred by the statute of limitations and/or the doctrine of laches. NYCHA also maintained that its determination was rational, not arbitrary and capricious, and in full accord with federal law and regulations and NYCHA's own policies.

The Court held a series of conferences to explore alternatives to resolve the matter.

I.

NYCHA maintains that the Article 78 proceeding is time-barred because the four month statute of limitations began to run, as NYCHA contends, around December 2009, when petitioner admittedly received the letter dated December 7, 2009 from Ms. V. Kan, who wrote, "YOU HAVE NO SUCCESSION RIGHTS TO CONTINUE TO RECEIVE SECTION-8 SUBSIDY."

Petitioner argues that the statute of limitations has yet to run because NYCHA did not grant him a hearing to contest the termination of the subsidy after petitioner requested a hearing. Petitioner contends that NYCHA's failure to grant a hearing was a violation of the termination procedures established in a First Partial Consent Judgment entered into on October 4, 1984 in Williams v New York City Housing Authority (Case No. 81-CV-1801 [RJW])1, and NYCHA's own internal procedures promulgated to ensure compliance with the Williams First Partial Consent Judgment.

NYCHA asserts that the T-1 Notice was sent to petitioner in error, and that the Williams First Partial Consent Judgment does not apply to determinations of succession rights to a Section 8 subsidy.

A.

(Walton v New York State Dept. of Correctional Servs., 8 N.Y.3d 186, 194-195 [2007][citations omitted].) "An administrative determination becomes final and binding' when the petitioner seeking review has been aggrieved by it." (Matter of Yarbough v Franco, 95 N.Y.2d 342, 346 [2000][citations omitted].)

The issue of whether petitioner was entitled to a hearing bears on the issue of whether NYCHA's determination dated December 7, 2009 was final and binding. One could argue that NYCHA's denial of succession rights would not be final and binding if petitioner were entitled to an administrative hearing, which could result in the determination being overturned. Thus, the Court must first address whether petitioner was entitled to a hearing.

For recipients of Section 8 subsidies, the Williams First Partial Consent Judgment requires NYCHA to follow certain procedures when terminating a Section 8 subsidy:

(Matter of Fair v Finkel, 284 A.D.2d 126, 127-28 [1st Dept 2001].)

These procedures affect when NYCHA's determination to terminate a Section 8 subsidy becomes final and binding. Paragraph 22 (f) of the Williams First Partial Consent Judgment states,

(Verified Answer, Ex J.)

However, NYCHA indicates that the termination procedures of the Williams First Partial Consent Judgment applies to the "Termination of the subsidy or eligibility of any participant in the Section 8 Housing Assistance Program for Existing Housing, administered by [NYCHA]." (Verified Answer, Ex J [emphasis supplied].) It is undisputed that petitioner is not a Section 8 subsidy participant; petitioner was not a recipient of a Section 8 subsidy whose subsidy was being terminated. Rather, petitioner was seeking succession rights to his father's Section 8 subsidy.

Therefore, the Williams First Partial Consent Judgment does not apply here. Petitioner is not entitled to a hearing under the Williams First Partial Consent Judgment.

B.

Petitioner argues that remaining family members who are denied succession rights are entitled to a hearing, citing Matter of Gill v Hernandez (22 Misc.3d 390 [Sup Ct, NY County 2008]) and Matter of Bajana v Rhea (2010 WL 3536823 [Sup Ct, NY County 2010]). Petitioner also asserts that Matter of Moorer v NYC HPD Office of Hous. Operation & Div. of Tenant Resources (31 Misc.3d 1216 [A] [Sup Ct, NY County 2011], affd. 101 A.D.3d 565 [1st Dept 2012]) presented a situation very similar to this case.

All these cases are inapposite. In Matter of Gill and Matter of Bajana, the petitioners sought succession rights to Section 8 subsidies granted to their parents, and the lower courts ruled that the petitioners were entitled to hearings. However, the petitioners in those cases were each entitled to a hearing for reasons and facts which are not present in this Article 78 proceeding. Matter of Moorer did not involve a claim of succession rights to a Section 8 subsidy.

In Matter of Gill v Hernandez, the petitioner brought an Article 78 proceeding seeking an order directing NYCHA to add the petitioner to the Section 8 household of her mother retroactively, and a declaration that the petitioner was a remaining family member entitled to succession rights to her mother's Section 8 subsidy. The petitioner resided with her mother, who was receiving a Section 8 subsidy from NYCHA. Petitioner and her mother claimed that they submitted paperwork to add the petitioner as a family member to her mother's household, and that the landlord allegedly granted the petitioner "permanent status," pending NYCHA's approval.

However, when the petitioner's mother listed the petitioner on annual income recertifications, NYCHA continued to insist that the petitioner's mother needed to complete paperwork to add the petitioner to the household. After petitioner's mother died, NYCHA terminated the mother's subsidy, stating that the mother had been the only tenant of record.

Justice Kornreich remanded the matter back to NYCHA, ruling:

(Matter of Gill, 22 Misc 3d at 397-398.)

Matter of Gill is inapposite. There, NYCHA purportedly made no decision as to the tenant's request to add her daughter to the Section 8 household, while it repeatedly insisted that the tenant had to resubmit the paperwork. Here, unlike Matter of Gill, it is undisputed that NYCHA granted petitioner conditional permission to join Samuel Klein's household, while specifying that petitioner has no right to succeed to the Section 8 subsidy. In addition, paragraph IV of the succession policy, which Justice Kornreich cited in Matter of Gill, is not in NYCHA's current succession policy. (See Verified Answer, Ex B, at 9-11; see also Petitioner's Mem. at 18 n 1 ["The 2007 Occupancy Policy is silent on a tenant's right to a hearing to contest succession rights."].)

In Matter of Bajana, the petitioner sought succession rights to a Section 8 subsidy that her mother received from NYCHA. NYCHA granted the petitioner conditional permission to join her mother's household in 2008. The petitioner's mother died in October 2009 after being struck by a vehicle, and NYCHA cancelled the mother's Section 8 voucher a week after she died. NYCHA denied the petitioner succession rights because she had been granted only conditional permission to join the household. In the Article 78 proceeding, the petitioner argued that she had been denied due process because she had never been given notice or an opportunity to dispute NYCHA's determination to grant her conditional permission instead of a status as a permanent family member.

Justice Lobis stated,

(Matter of Bajana, 2010 WL 3536823.) Therefore, Justice Lobis remanded the matter to NYCHA for a determination, consistent with those 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.

Like Matter of Bajana, NYCHA's current policy states, "The Lessee may dispute the denial of permission at an informal conference with an employee at the level of Housing Manager or higher." (Verified Answer, Ex B, at 7.) However, unlike the petitioner Matter of Bajana, petitioner is not claiming that neither he nor his father was unaware that NYCHA granted conditional permission for petitioner to join his father's household, instead of permanent permission.

Matter of Moorer is also inapposite. Matter of Moorer did not involve a claim of succession rights to a Section 8 subsidy. Rather, the petitioner in Matter of Moorer was a recipient of a Section 8 voucher administered by the New York City Department of Housing Preservation and Development (HPD). HPD terminated the petitioner's subsidy because HPD claimed to have discovered that two individuals whom the petitioner had listed as family members on her income recertification were living in another household, which was receiving a housing subsidy from NYCHA. The petitioner had requested a hearing, and HPD's own termination procedures required it to afford the petitioner a hearing to challenge the termination before the subsidy could be terminated. (Matter of Moorer, 101 AD3d at 565.)

In sum, petitioner has not demonstrated that he was entitled to a hearing to dispute NYCHA's denial of succession rights to his father's Section 8 subsidy.

C.

Although the Williams First Partial Consent Judgment does not apply to petitioner, the fact that he received a T-1Notice stating that he may request a hearing bears on the issue of whether the Article 78 proceeding is time-barred.

(Matter of Biondo v New York State Bd. of Parole, 60 N.Y.2d 832, 834 [1983] [internal citations omitted].) "If an agency has created ambiguity or uncertainty as to whether a final and binding decision has been issued, the courts should resolve any ambiguity created by the public body against it in order to reach a determination on the merits and not deny a party his day in court.'" (Matter of Carter v State of NY, Exec. Dept., Div. of Parole, 95 N.Y.2d 267, 270-271 [2000] [citations omitted].)

Here, NYCHA created an ambiguity as to whether its letter dated December 7, 2009 was final and binding because it also sent a T-1 Notice dated December 7, 2009 to petitioner, which indicated that petitioner could request a hearing.

Because of the ambiguity, NYCHA has not demonstrated that the petition is time-barred, to the extent that petitioner contends that NYCHA's denial of succession rights to his father Section 8 subsidy was arbitrary and capricious.

The Court need not address NYCHA's remaining argument that the petition is barred by laches. NYCHA raised this argument because it construed the petition as seeking, among other things, mandamus to compel NYCHA to grant petitioner a hearing. Petitioner himself did not apparently believe that the petition was in the nature of mandamus to compel, insofar as NYCHA gave no determination denying his request for a hearing. In any event, as discussed above, the Court has found that petitioner was not entitled to a hearing under Williams First Partial Consent Judgment, and that petitioner did not cite any applicable case law establishing that he was entitled to a hearing.

II.

Turning to the merits, NYCHA's occupancy/succession policy is part of a written administrative plan, which NYCHA is required to adopt pursuant to federal regulations. (See 24 CFR 982.54 [2009].) The written administrative plan is a supporting document to the public housing agency plans (PHA plans) that NYCHA must submit to the U.S. Department of Housing and Urban Development (HUD) pursuant to federal law and regulations. (See 42 USC 1437c-1; 24 CFR 903.4 [2009].)2 The written administrative plan "must be in accordance with HUD regulations and requirements" (24 CFR 982.54 [b] [2009]), and it must cover "How to determine who remains in the program if a family breaks up." (24 CFR 982.54 [d] [11].) NYCHA must administer the Section 8 voucher program in accordance with the administrative plan. (24 CFR 982.54 [c] [2009].)

Section 11 of NYCHA's written administrative plan, "Determining who remains in the program if a family breaks up", states:

(Verified Answer, Ex A, at 9.)

It is undisputed that, under NYCHA's succession policy, only a family member who either entered the unit as an original family member, or whom was accorded "permanent status" by NYCHA to join the household, may be considered a Remaining Family Member for succession rights to a Section 8 subsidy, after one full year of residency. (Verified Answer, Ex B, at 9.) Under NYCHA's occupancy policy, a request for permanent permission to join the household may be approved only for the following persons:

(Verified Answer, Ex B, at 4.) It is undisputed that petitioner did not fall into any of these four categories. He was 70 years old when permission was requested and granted to add him to Samuel Klein's household.

Petitioner does not contend that NYCHA's succession policy contravenes a specific federal regulation or federal law. Rather, he argues that NYCHA's policy is contrary to the federal statutory framework governing Section 8 subsidies. Petitioner argues that a policy "which totally exempts adult biological children continuously living in a household for several years from the status of permanent' members ... is not rational." (Petitioner's Reply Mem. at 6.) Petitioner argues that the federal policies of Section 8 should supersede NYCHA's internal policies, i.e., the occupancy policy and succession policy.

NYCHA states that it does not provide succession rights to conditional family members because

(Verified Answer ¶ 31.)

Petitioner's policy argument is based on an extensive discussion of the Section 8 housing program and its aims in Morrisania II Associates v Harvey (139 Misc.2d 651 [Civ Ct 1988] [Stallman, J.]). Morrisania II Associates involved a licensee holdover proceeding brought against the daughter of a tenant who leased an apartment pursuant to a Section 8 tenancy until the tenant's death. The landlord argued, among other things, that the daughter was either a squatter or a former licensee whose license terminated upon the tenant's death. The daughter contended that she was the legal successor to her mother's Section 8 tenancy, and she moved for summary judgment to dismiss the holdover proceeding, arguing that federal law preempted the holdover proceeding and thus required its dismissal. In denying the respondent's motion, the court discussed the Section 8 program at length:

(Morrisania II, 139 Misc 2d at 655-658 [internal citations and footnote omitted]; see also Matter of Manhattan Plaza Assoc., L.P. v Department of Hous. Preserv. & Dev. of City of NY, 8 A.D.3d 111 [1st Dept 2004]["the purpose of section 8 law, which, by recognizing the entire family as the tenant (see 42 USC § 1437a), seeks to encourage family cohesion."].)

Succession to the Section 8 subsidy was not at issue in Morrisania II. Rather, the summary holdover proceeding in Morrisania II involved the issue of whether the daughter of the deceased tenant had the right to remain in the apartment. In the instant case, petitioner's right to remain in his father's apartment is not at issue. As discussed in the background allegations, HPD accorded petitioner succession rights to remain in the apartment. At issue here is whether NYCHA should have granted petitioner succession rights to the Section 8 subsidy.

Lower courts are divided as to whether NYCHA's succession policy contravenes the federal policies of the Section 8 program. Citing Morrisania II, Justice Lobis stated,

(Matter of Bajana, 2010 WL 3536823.) By contrast, in Studdivant v Hernandez, Justice Abdus-Salaam stated,

(Matter of Studdivant v Hernandez, Sup Ct, NY County, Mar. 18, 2005, Abdus-Salaam, J., index No. 403320/2004; see also Verified Answer, Ex K [unpublished decisions].)

Petitioner does not point any federal statute or regulation which is contrary to NYCHA's succession policy or occupancy policy, which grants only conditional permission to adult children who are added to a Section 8 household. The Court agrees with Justice Abdus-Salaam that the lack of succession rights for adult children under NYCHA's policies is neither arbitrary and capricious, nor a violation of federal law.

Finally, petitioner cites cases where courts permitted occupants to prove, either at a hearing or at trial, that they were remaining family members entitled to succession rights in project-based Section 8 apartments, notwithstanding the fact that they were not listed in the family composition on annual statements or forms. Those cases are distinguishable. First, those cases involved the issue of whether the person seeking succession rights to a project-based Section 8 apartment was a bona fide occupant of the apartment with the tenant of record. Here, petitioner's father was the recipient of a "tenant-based" Section 8 subsidy—a voucher. Unlike a project-based subsidy, which is associated with a specific dwelling unit, a voucher is "portable," i.e., "a portable voucher which a tenant can use to pay rent on any apartment, within certain limits, in the United States." (Matter of Manhattan Plaza Assoc. v Department of Hous. Preserv. & Dev. of City of New York, 3 Misc.3d 717, 718 n 1, affd 8 A.D.3d 111.)3 Second, the agency policy in the one of those cases that petitioner cites permitted the occupant who sought remaining family member status to present evidence of a bona fide occupancy, notwithstanding that the occupant was not listed on income affidavits. (Matter of Manhattan Plaza Assocs., L.P., 8 AD3d at 112 [HPD regulation permitted a family member not listed on the annual certifications to rebut the presumption that he or she did not live in the apartment].) Finally, those cases do not stand for the proposition that courts are empowered to disregard an agency policy that expressly and unambiguously does not recognize succession rights, where such policy is neither arbitrary and capricious nor a violation of federal law. (See Matter of Filonuk v Rhea, 84 A.D.3d 502, 503 [1st Dept 2011] ["Although NYCHA's written consent requirement is not a formal rule or regulation, petitioner was required to obtain such consent in order to be entitled to RFM status"].)

CONCLUSION

NYCHA's determination to deny petitioner succession rights to his father's Section 8 subsidy was not arbitrary or capricious; the determination was made pursuant to a succession policy that itself is not arbitrary and capricious nor a violation of federal law. The Article 78 petition is therefore denied.

Accordingly, it is hereby ADJUDGED that the petition is denied and the proceeding is dismissed.