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

Brief

N.Y.January 3, 2018

To Be Argued By: Jane E. Lippman APL-20 16-00130 STATEOF NEW YORK COURT OF APPEALS In the Matter of the Application of JONAS APONTE, Petitioner-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- 30 minutes requested SHOLA OLATOYE, as Chairwoman of the New York City Housing Authority, and THE NEW YORK CITY HOUSING AUTHORITY, Respondents-Appellants. BRIEF OF RESPONDENTS-APPELLANTS DAVID FARBER General Counsel Donna M. Murphy, Of Counsel Jane E. Lippman, Of Counsel Nancy M. Harnett, Of Counsel Seth E. Kramer, Of Counsel New York City Housing Authority 250 Broadway, 9th Floor New York, NY 10007 Tel: (212) 776-5259 Fax: (212) 776-5404 J ane.Lippman@nycha.nyc.gov Attorneys for Respondents-Appellants Completion date: December 15, 2016 Reproduced on recycled paper TABLE OF CONTENTS PRELIMINARY STATEMENT .......................................................................... ! JURISDICTION ................................................................................................... 6 QUESTIONS PRESENTED ................................................................................ 8 STATEMENT OF FACTS ................................................................................... 9 NYCHA Operations ................................................................................... 9 Federal Law .................................................................................. , ............. 9 Written Consent Policy ............................................................................ 11 Occupancy Standards ............................................................................... 12 Remaining Family Member Policy .......................................................... 14 Grievance Procedures ............................................................................... 15 Ms. Aponte's Tenancy ............................................................................. 16 Administrative Hearing ............................................................................ 18 Hearing Officer's Decision and Disposition and Final Determination of Status ........................................................... 20 This Article 78 Proceeding ...................................................................... 21 Appellate Division's Order Reversing The Trial Court Order .............................................................................. 23 Appellate Division's Dissent ................................................................... 24 ARGUMENT ..................................................................................................... 26 I. THE ORDER SHOULD BE REVERSED BECAUSE NYCHA'S DETERMINATION RESPONDENT DOES NOT QUALIFY AS A REMAINING FAMILY MEMBER IS RATIONAL ............................. 26 II. THE ORDER SHOULD BE REVERSED BECAUSE A CARETAKER'S SUCCESSION TO AN APARTMENT IS NOT A REASONABLE ACCOMMODATION FOR A DISABLED TENANT ......................................................................... 34 A. A Disabled Tenant Is Entitled Only To Reasonable Accommodations Necessary To Afford Equal . Opportunity To Use And Enjoy Housing ...................................... 34 B. NYCHA Accommodated Ms. Aponte's Disability By Allowing Respondent To Reside Temporarily In Her Apartment.. .................................................... 43 III. THE ORDER SHOULD BE REVERSED BECAUSE NYCHA DID NOT IMPLICITLY CONSENT TO RESPONDENT'S PERMANENT RESIDENCE INMS. APONTE'S APARTMENT ....................................................... 50 CONCLUSION .................................................................................................. 55 II TABLE OF AUTHORITIES Page(s) Federal Cases Advocacy Resource Ctr. v. Town of Chazy, 62 F. Supp. 2d 686 (N.D.N.Y. 1999) ............................................................................................ 39 n5 Alexander v. Choate, 469 U.S. 287 (1985) ........................................................ 35 Anonymous v. Goddard Riverside Community Ctr., 1997 U.S. Dist. LEXIS 9724 (S.D.N.Y. 1997) ............................................. 39 n5 Davis v. New York City Hous. Auth., Case No. 90-CV-628 (S.D.N.Y.) (RWS) ........................................................... 10 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ................................... .49 Loeffler v. Staten Island Univ. Hasp., 582 F.3d 268 (2d Cir. 2009) ..................................................................................................... 49 Logan v. Matveevskii, 57 F. Supp. 3d 234 (S.D.N.Y. 2014) ....................... ; .......................................................................... 37 Marks v. BLDG Mgmt. Co., 2002 U.S. Dist. LEXIS 7506 (S.D.N.Y. 2002) ..... · ... _. ................................................................. 37, 39, 40, 43, 44 McElwee v. County of Orange, 700 F .3d 63 . (2d Cir. 2012) .... : .......................................................................................... 37, 44 Salute v. Stratford Greens Garden Apts., 136 F.3d.293 (2d Cir. 1998) ......................................................................................... 3 6, 3 8, 45 Sinisgallo v. Town of/slip Hous. Auth., 865 F. Supp. 2d 307 (E.D.N.Y. 2012) ........................................................................................... 35, 36 United States v. Salvation Army, 1999 U.S. Dist. LEXIS 14861 (S.D.N.Y. 1999) ...................................................................................... 40, 41,45 111 State Cases Dunn v. Fishbein; 123 A.D.2d 659 (2d Dep 't 1986) .................................................................................................. 49 Gregory v. Cambria, 69 N.Y.2d 655 (1985) ................................................ 29 n.3 Hayes v. EsteeLauder Cos., Inc., 34 A.D.3d 735 (2d Dep't 2006) .................................................................................................. 48 Logiudice v. Logiudice, 67 A.D.3d 544 (1st Dep't 2009) ............................................................................................ 29 n.3 Matter of Andrade v. New York City Hous. Auth., 132 A.D.3d 598 (1st Dep't 2015) .................................................................................................. 51 Matter of Banks v. Rhea, 133 A.D.3d 745 (2d Dep't 201"5) ............................................................................... : ................... 28 Matter of Bashmet v. Hernandez, 87 A.D.3d 866 (1st Dep't 2011) .................................................................................................. 30 Matter of Dancil v. New York City Hous. Auth., 123 A.D.3d 442 (1st Dep't 2014) ............................................................... :··································51 Matter ofE.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359 (1988) .................... 51 Matter ofELRAC, Inc. v. Edwards, 270 A.D.2d 414 (2d Dep't 2000) ............................................................................................ 29 n.3 Matter of Figueroa v. Rhea, 120 A.D.3d 814 (2d Dep't 2014) ............................................................................................ 28, 52 Matter of Filonuk v. Rhea, 84 A.D.3d 502 (1st Dep't 2011) .................................................................................................. 49 Matter of Gilmore v. Hernandez, 40 A.D.3d 410 (1st Dep't 2007) .................................................................................................. 27 IV Page(s) State Cases (continued) Matter of Gonzalez v. New York City Hous. Auth., 112 A.D.3d 531 "(1st Dep't 2013) .................................................................................................. 52 · Matter of Gutierrez v. Rhea, 105 A.D.3d 481 (1st Dep't 2013) .................................................................................................. 54 Matter of Haynie v. New York City Hous. Auth., Index No. 402656/06 (Sup. Ct. N.Y. Co. Dec. 5, 2006) .................................................................. 30-31 Matter of Henderson v. Popolizio, 76 N.Y.2d 972 (1990) ................................. 27 Matter ofHowardv. Wyman, 28 N.Y.2d 434 (1971) ........................................ 26 Matter of Lindsay Park Hous. Corp. v. New York State Div.of Human Rights, 56 A.D.3d 477 (2d Dep't 2008) ......................... 42, 43, 45 Matter of McFarlane v. New York City Hous. Auth., 9 A.D.3d 289 (1st Dep't 2004) .................................................................. , ............................... 54 Matter of Montgomery v. New York City Hous. Auth., 56 A.D.2d 778 (1stDep't 1977) .................................................................................................. 26 Matter of Nelson v. Roberts, 304 A.D.2d 20 (1st Dep't 2003) .................................................................................................. 27 Matter of Ortiz v. Rhea, 127 A.D.3d 665 (1st Dep't 2015) ................................................................................................. 28 Matter of Po So v. Rhea, 106 A.D.3d 487 (1st Dep't 2013) .......................................... : ............... 5, 23, 25, 30, 41, 42, 45, 47 Matter of Ralyou v. Rhea, 101 A.D.3d 422 (1st Dep't 2012) .................................................................................................. 52 v Page(s) State Cases (continued) Matter of Rentas v. New York City Hous. Auth., 282 A.D.2d 215 (1st Dep't 2001) .................................................................................................. 28 Matter of Rodriguez v. Hernandez, 51 A.D.3d 532 (1st Dep't 2008) .................................................................................................. 30 Matter of Schorr v. New York City Dep'tofHous. Pres & Dev.; 10 N.Y.3d 776 (2008) ..................................................................................... 5, 51 Matter of Walker v. Franco, 275 A.D.2d 627 (1st Dep't 2000) .................................................................................................. 26 Matter of 31171 Owners Corp. v. New York City Dep 't of Hous. Pres. & Dev. 190 A.D.2d 441 (1st Dep't 1993) ................................................................. 26, 27 New York State Div. of Human Rights v. Ill East 88th Partners, 2012 N.Y. Misc. LEXIS 2647 (Sup. Ct. New York Co. June 1, 2012) ........ 36-37 Rivera v. Lutheran Med. Ctr., 22 Misc. 3d (Sup. Ct. Kings Co. 2008) .................................................................................. 48 Wilson v. Phoenix House, 42 Misc. 3d 677 (Sup. Ct. Kings Co. 2013) .................................................................................. 36 Federal Statutes and Regulations 24 C.F.R. § 960.201 ........................................................................................... 10 24 C.F.R. § 960.202 ........................................................................................ 9, 10 24 C.F.R. § 960.203 ............................................................................................ 10 24 C.F.R. §§ 960.257 .............................................................................. 10, 12, 32 24 C.F.R. § 960.259 ............................................................................................ 11 VI Page(s) Federal Statutes and Regulations (continued) 24 C.F .R. § 966.4 ........................................................................................... ! 0-11 29 u.s.c. § 794 .................................................................................................. 35 29 C.F.R. §1630 app ........................................................................................... 37 42 U.S.C. § 3604 ..................................................................................... 34, 38 n4 42 u.s.c. § 1437 .............................................. : ................................................ 10 State and Local Statutes and Rules N.Y. CPLR § 5601 ........................................................................................... 6, 7 N.Y. Exec. Law § 296 ........................................................................................ 36 N.Y. Pub. Hous. Law§ 2 ............................................................................. 13, 32 N.Y. Pub. Hous. Law§ 3 ..................................................................................... 9 N.Y. Pub. Hous. Law§ 37 ................................................................................... 9 N.Y. Pub. Hous. Law§ 156 ................................................................................ 9 N.Y. Pub. Hous. Law§ 401 ................................................................................. 9 N.Y.C. Admin. Code§ 8-107 ............................................................................. 36 Miscellaneous http://www l.nyc.gov /assets/nycha/ downloads/pdf/factsheet. pdf ........................ 9 Vll PRELIMINARY STATEMENT Respondents-Appellants Shola Olatoye, as Chair of the New York City Housing Authority ("NYCHA"), and NYCHA (collectively, "Appellants") appeal from the Decision and Order of the Appellate Division, First Department (the "Order"), which, over a two person dissent, reversed the Order of the Supreme Court, New York County (the "Trial Court Order"), granted the Article 78 petition of Petitioner-Respondent Jonas Aponte ("Respondent"), and annulled NYCHA's determination Respondent does not qualify as a remaining family member entitled to succeed to a lease to the public housing apartment formerly leased to his mother Victoria Aponte ("Ms. Aponte"). After an administrative hearing, NYCHA denied Respondent's remaining family member grievance on the ground he did not receive development management's permission to live in the apartment permanently because his addition to Ms. Aponte's household would have resulted in overcrowding. The issue on this appeal is whether Respondent must be permitted to succeed to Ms. Aponte's public housing apartment, jumping to the head of the line of nearly 260,000 waiting families, where he was only entitled to receive temporary permission to reside in the apartment as her caregiver. Unlike permanent permission, temporary permission cannot result in succession rights, and NYCHA does not include a temporary occupant's income in calculating rent. NYCHA's policy does not preclude management from granting temporary permission even where the additional occupant would cause overcrowding. A majority of the First Department held NYCHA should have granted permanent permission, which would potentially entitle Respondent to succession rights, as a reasonable accommodation for Ms. Aponte's disability. The majority's decision is wrong and should be reversed because: (I) NYCHA's determination denying Respondent succession rights was rational and in accord with NYCHA's occupancy standards and remaining family member policy; (2) providing a caregiver the right to succeed to an apartment is not an accommodation for a tenant's disability under any law and instead provides a windfall to the caregiver to the detriment of other potential tenants; and (3) NYCHA cannot be estopped from denying remaining family member status and never implicitly consented to Respondent's permanent residence in his mother's apartment. Federal regulations, the public housing lease, and NYCHA's policy require public housing tenants to obtain the development manager's permission before adding persons to their subsidized households. The year after Respondent moved into Ms. Aponte's apartment, permission for Respondent's permanent occupancy was sought because Ms. Aponte suffered from dementia and needed Respondent to live with and care for her. Management denied permanent permission because adding Respondent to Ms. Aponte's household would have caused overcrowding 2 in violation.ofNYCHA's occupancy standards. Management instead reasonably accommodated Ms. Aponte's disability with de facto temporary permission, consistent with NYCHA's Management Manual. Respondent lived with Ms. Aponte until she died. The dissent correctly found NYCHA rationally denied Respondent's grievance because he could not have received permanent permission under NYCHA's occupancy standards. The First and Second Departments have repeatedly upheld NYCHA's determinations denying remaining family member status because the grievant did not obtain permanent permission. The majority misconstrued NYCHA's transfer policy by finding it required NYCHA to offer Ms. Aponte a transfer to a larger apartment in response to the permanent permission request. NYCHA allocates its limited supply of larger apartments to new applicant families and current families who need larger apartments because of family growth, not so adult family members (who could apply for public housing on their own) may join existing households. In this case, there is no reason NYCHA must depart from its occupancy and transfer policies to which the courts should defer. A disabled tenant is entitled only to those accommodations that are necessary to afford equal opportunity to use and enjoy housing as similarly situated tenants who have no disability. A requested accommodation that benefits a caregiver and is not necessary for the 3 tenant to use and enjoy her apartment is not required under any law. NYCHA was not required to waive its occupancy standards and grant permanent permission so that Respondent could potentially succeed to the apartment - a future benefit for Respondent that did not afford Ms. Aponte equal opportunity to use and enjoy her apartment. The majority held, without support, that NYCHA's failure to consider Ms. Aponte's disability in denying Respondent permanent residence in the apartment should result in succession rights for Respondent. In so holding, the majority set an altogether new legal precedent, which widens the scope of required accommodations to measures that go far beyond providing equal opportunity for disabled tenants to use and enjoy their housing. The majority further held that NYCHA's determination was arbitrary and capricious because neither Respondent nor Ms. Aponte was given an opportunity to demonstrate what would constitute a reasonable accommodation under the circumstances. The record belies this conclusion. Ms. Aponte requested Respondent be permitted to reside with her so he could care for her, and she received that accommodation. Respondent's own counsel submitted an affirmation acknowledging permitting Respondent to reside with Ms. Aponte was a reasonable accommodation of her disability. NYCHA's Management Manual institutionalizes temporary permission as a reasonable accommodation where permanent permission is not authorized because, among other reasons, the apartment would 4 become overcrowded. The majority deviated from its own precedent, Matter. of Po So v. Rhea, 106 A.D.3d 487 (1st Dep't 2013), which held that allowing a tenant's daughter functioning as a caregiver to reside temporarily in an apartment satisfies NYCHA's duty to accommodate a tenant's need for full-time care, and granting permanent residency permission to the daughter provides a windfall to the detriment of potential tenants. The majority relied on NYCHA's alleged failure to engage in the interactive process in annulling NYCHA's determination. The dissent correctly found NYCHA provided de facto temporary residency permission to Respondent by allowing him to remain in the apartment. Even ifNYCHA should have . communicated more clearly to Ms. Aponte and Respondent, the default for any deficiency is not succession rights to a public housing apartment for Respondent, particularly when NYCHA's policy, appellate precedent, and Respondent's own admissions establish temporary permission was a reasonable accommodation. · The majority additionally held that although estoppel is not available against a government agency in the exercise of its governmental functions, NYCHA implicitly consented to Respondent's residence in Ms. Aponte's apartment. The First and Second Departments, however, have relied on this Court's precedent in Schorr v. New York City Department of Housing Preservation & Development, 10 N.Y.3d 776 (2008), in holding that NYCHA may not be estopped from denying 5 remaining family member status. NYCHA should certainly not be estopped on a theory of implicit consent from enforcing its permanent permission and remaining family member policies here where it essentially had no choice, as Respondent would have been the first to complain if he were not able to care for his ailing mother. Additionally, NYCHA's explicit denial of permanent permission precludes a finding of implied consent to Respondent's permanent residence in Ms. Aponte's apartment. At most; NYCHA can be found only to have implicitly consented to Respondent's temporary residence in the apartment rather than his permanent residence, as shown by the fact it did not include Respondent's social security income in calculating Ms. Aponte's rent. For each of these reasons, as discussed more fully below, this Court should reverse the Order and dismiss this proceeding in its entirety. JURISDICTION Appellants take this appeal as of right pursuant to CPLR section 5601(a). In this CPLR Article 78 proceeding in Supreme Court, New York County, Respondent challenged NYCHA's administrative determination, following a hearing, which denied his grievance to succeed as a remaining family member to the public housing apartment formerly leased to his now-dece~sed mother. See Record on Appeal ("R") 450-54, 465-530. In his petition, Respondent specifically requested that the Supreme Court make and enter a judgment, "[a]nnulling 6 [NYCHA's] determination ... which upheld the Housing Manager's denial of [Respondent's] application to become the remaining family member." R 476. In the Trial Court Order dated September 8, 2014 and entered on September 15, 2014, Justice Cynthia Kern denied and dismissed Respondent's petition in its entirety. Respondent appealed to the Appellate Division, First Department on October 15, 2014 after Appellants served Notice of Entry on October 10, 2014. SeeR 43-80. By the Order entered on April 7, 2016, the First Department reversed the Trial Court Order, granted the petition, and annulled NYCHA's determination. SeeR 6-20. The ancillary relief requested by Respondent in his Article 78 petition, a stay of the Bronx County Housing Court proceeding against Respondent and a stay against NYCHA from enforcing any possessory judgment against Respondent, was rendered moot by the First Department's Order. Thus, the Order finally determined this proceeding. Justices Tom and Moskowitz dissented on multiple questions of law in favor of Appellants, making this appealable as of right under CPLR section 5601(a). SeeR 12-20. Appellants served a Notice of Entry of the Order on June 3, 2016 (seeR 24- 42) and also filed and served a Notice of Appeal to the Court of Appeals that same day (seeR 4-23). 7 The questions presented herein were raised in the courts below, namely, whether NYCHA's determination denying Respondent remaining family member status was rational because Respondent did not obtain permanent permission to reside in Ms. Aponte's apartment (seeR 10, 13, 55-56, 95-102); whether providing succession rights to Respondent was a windfall to Respondent rather than an accommodation that would afford Ms. Aponte equal opportunity to use and enjoy her apartment (seeR 11, 19, 58, 482-86); and whether NYCHA could be estopped from enforcing its written consent and remaining family member requirements (see R 11-12, 17, 20, 59-60, 491-92). QUESTIONS PRESENTED The appeal to this Court raises for consideration the following questions for rev1ew: Whether the Order reversing the Trial Court Order and granting Respondent's Article 78 proceeding to challenge the denial of his remaining family member grievance: (a) conflicts with precedent upholding NYCHA determinations denying remaining family member status because the grievant did not obtain permanent permission to reside in the apartment; (b) conflicts with statutory law and precedent limiting an accommodation for a disabled tenant to those measures necessary to afford the disabled tenant 8 equal opportunity to use and enjoy housing as similarly situated, non-disabled tenants; and (c) conflicts with appellate precedent holding that a public agency cannot be estopped from denying remaining family member status. NYCHA respectfully submits that this Court should answer these questions in the affirmative. STATEMENT·OF FACTS NYCHA Operations The New York State legislature created NYCHA to provide decent, safe, and sanitary housing for low-income families in the City of New York, and for that purpose, vested NYCHA with the power to make and impose standards regarding eligibility for occupancy of its apartments. See N.Y. Pub. Hous. Law§§ 3(2), 37(1)(w), 156, 401; 24 C.F.R. § 960.202(a). As ofMarch 31,2016, there were 258,880 families on the public housing waiting list. See http://www 1.nyc.gov /assets/nycha/ downloads/pdf/factsheet. pdf. Federal Law The federal government funds and regulates public housing authorities. NYCHA must certify annually to the United States Department of Housing and Urban Development ("HUD") that it has admitted persons to public housing in 9 accordance with HUD regulations. See 42 U.S.C. § 1437 et seq.; see also 24 C.F.R. § 960.201(c). HUD has mandated that NYCHA promulgate and adhere to certain tenant selection guidelines to determine which of the hundreds of thousands of applicants will be accepted as tenants for the relatively few public housing apartments that become available each year. See 24 C.F.R. § 960.202(a) (NYCHA "shall establish and adopt written policies for admission of tenants"); 24 C.F.R. § 960.203(c) (NYCHA is "responsible for screening family behavior and suitability for tenancy"). NYCHA also must ensure fairness in allocating public housing in accordance with its Tenant Selection and Assignment Plan ("TSAP"), first adopted pursuant to a consent decree in the federal action of Davis v. New York City Hous. Auth., Case No. 90-CV-628 (S.D.N.Y.) (RWS). SeeR 89 at~ 50. HUD regulations further mandate that NYCHA regularly monitor family composition and income after it has admitted a family into public housing. For example, NYCHA "must conduct a reexamination of family income and composition at least annually and must make appropriate adjustments in the rent after consultation with the family and upon verification of the information." 24 C.F.R. § 960.257(a). Throughout the tenancy, tenant families must (1) "request [NYCHA's] approval to add any other family member as an occupant of the unit" (24 C.F.R. § 10 966.4(a)(l )(v)); and (2) "supply any information requested by [NYCHA] or HUD for use in a regularly scheduled reexamination or an interim reexamination of family income and composition in accordance with HUD requirements." 24 C.F.R. § 960.259(a)(2). Written Consent Policy Consistent with its obligations under federal law, NYCHA provides for limited exceptions to its tenant selection procedures. One exception is made when, as an accommodation to a tenant already in residence, NYCHA allows a person to become a permanent member of the tenant's household. SeeR 116-23. To add a person to the household, a tenant in current occupancy and good standing must ·first request and obtain the written consent of the development manager. SeeR 90 at~ 54; R 117 at XI.B.2. NYCHA's Written consent policy is incorporated in the lease. SeeR 146 at ~ 5.b; R 169. NYCHA reminds tenants of the written consent requirement on an annual basis. The annual affidavit of income and family composition form, wbich tenants are required to complete once each year, clearly notifies tenants that "[f]ailure [to list all authorized occupants living in your apartment] may deprive them of all rights of occupancy. No person is allowed to reside in your apartment ... unless written permission is REQUESTED by you and GRANTED by 11 Management." R 90-91 at~ 56; R 158, 184, 187, 190, 193, 195, 198,201,204, 207 (emphasis in original). A tenant may request permission to add another person to her household permanently or temporarily. SeeR 117-128 at XI.B.2. & B.3. The manager approves or denies the request in writing. SeeR 122 at XI.B.2.b.(1) & (2); R 127 at XI.B.3.b. & c. The income of a person granted permanent permission is included in household income to calculate the income-based rent, while the income of a person granted temporary permission is not included in household income to calculate the rent. SeeR 121-22 at XI.B.2.(3)(e); R 124 at XI.B.3.a.(4). Home attendants or other individuals who provide care to the tenant may be granted temporary permission for the duration of the service, and management may automatically renew the temporary residency permission as needed. SeeR 126 at XI.B.3.a.(7). Temporary occupants must vacate the apartment when the approved occupancy period expires or when the tenant moves out or dies. See R 124 at XI.B.3.a.(3); R 128 at XI.B.3.a.3.g. Occupancy Standards In accordance with federal regulations and state law, NYCHA has adopted occupancy standards setting forth the number of persons allowed to permanently occupy an apartment of any given size. See 24 C.F.R. §§ 960.257(a)& (c) (mandating that housing authorities adopt occupancy policies in connection with 12 the annual reexamination of the income and composition of tenant families); N.Y. Pub. Hous. Law § 2 (explaining the purpose of public housing is to alleviate "unsanitary and substandard housing conditions owing to overcrowding ... [which] are a menace to the health, safety, morals, welfare and reasonable comfort of the citizens of the state"). The occupancy standards ensure residents are assigned to apartments of the appropriate size for their households and aid NYCHA in operating and maintaining safe and sanitary dwellings. The standard occupancy for a one-bedroom apartment consists of a married couple, two adult domestic partners, or a single adult with a child less than six years of age. See R 171. An "overcrowded" one-bedroom apartment includes two adults who are not married or domestic partners or a single adult with a child of six years of age or more. See id. Management cannot grant permanent permission if the proposed additional occupant would render the household overcrowded based on the total number of people in the household and the apartment size. SeeR 121 at XI(B)(2)(a)(3)(d) ("The proposed additional person shall not receive permanent residency permission if the total number ofpersims in the apartment, including the proposed additional person, exceeds the requirements for standard occupancy ... based on apartment size.") (emphasis in original). Management may grant temporary permission even if the additional person "overcrowds" the apartment so 13 long as the apartment does not become "extremely overcrowded." SeeR 125 at XI(B)(3)(a)(5). Remaining Family Member Policy NYCHA provides a second exception to the usual tenant-selection procedures when the tenant either moves or dies. Under certain circumstances, NYCHA allows a "remaining family member" to succeed to the former tenant's lease. SeeR 93 at~ 62; R 130 at XII. An occupant who wishes to succeed to the lease of a tenant of record as a remaining family member must establish, among other things, he or she: (a) moved into the apartment lawfully (i.e., was listed on the housing application and authorized to reside in the apartment at initial move-in; was born into/adopted into/became a ward of the authorized family; or permanently moved in with the written permission of the housing manager); (b) falls within certain categories of relatives of the tenant of record; (c) remained in the apartment continuously after lawful entry; (d) remained in the apartment for not less than one year after the date of lawful entry and prior to the date the tenant of record vacates the apartment or dies (the "one-year requirement"); and (e) is otherwise eligible for public housing in accordance with the admissions standards for applicants. SeeR 130-33 at XII; see also R 116-22 at XL To establish continuous occupancy and compliance with the one-year requirement, the occupant must have been listed 14 "on all Occupant's Affidavit[ s] oflncome from the date of issuance of written permission for permanent occupancy ... for not less than one year immediately prior to the date the tenant of record vacates the apartment or dies[.]" R 131 at XII.A.2.a. The written consent and remaining family member policies permit NYCHA to determine the appropriate rent and apartment size, to ascertain in compliance with federal regulations whether each occupant qualifies for admission to public housing, and to ensure no occupant of public housing poses a danger to others. The policies also ensure the fair and orderly selection of tenants from those families certified to NYCHA's waiting list who have satisfied eligibility requirements. Permitting individuals to bypass the many approved applicants waiting for housing also would violate federal law by undermining the TSAP. See R 94 at~ 66. Grievance Procedures In order to determine if an occupant qualifies as a remaining family member, NYCHA provides a multi-step grievance procedure. SeeR 94-95 at~ 67; R 133- 40 at XII.C, D, E; R 173-75 at Subdivision A,~~ 4-11. Briefly, the claimant and the housing manager meet. If the manager does not offer the claimant a lease, the manager submits the reasons. for the denial along with the tenant of record's file to the Borough/District Management Office ("Borough Office") for review. See R 15 136 at XII.D.3.b; R 173 at Subdivision A, 11~ 4-5 . If, after review of the tenant's file and any additional documentation submitted by the claimant, the Borough Office agrees with the manager but believes the claimant has made some showing he or she could qualify for remaining family member status, the Borough Office notifies the claimant of the opportunity to request a hearing, provided the claimant remains current in use and occupancy. See R 136-37 at XII. D. 4.a. and b.; R 173- 74 at Subdivision A,~~ 5-6. At th_e hearing, the grievant bears the burden of proof. SeeR 134 at XII.C.2; R 174-75 at Subdivision A,~ 10. After the hearing, the impartial hearing officer issues a decision, which NYCHA's Board may review. SeeR 138 at XII.D.5; R 175 at Subdivision A,~ 11. Ms. Aponte's Tenancy Ms. Aponte was the tenant of record of apartment at West I 74th Street, a one-bedroom in NYCHA's Sedgwick Houses in the Bronx, from February 1992 until she died. See R 182, 221. Ms. Aponte was the sole authorized occupant of her apartment. See R 182. Respondent was not identi fled as an occupant of Ms. Aponte's apartment on Ms. Aponte's Occupant's Affidavits of Income submitted to the management office between January 2001 and January 2010. SeeR 184-209. On or about August 24, 2010, the Sedgwick Houses management office received a permanent 16 permission request form purportedly signed by Ms. Aponte and Respondent seeking to add Respondent to the household because Ms. Aponte had dementia and needed help. SeeR 211-12. On September 20, 2010, the Sedgwick Houses Manager disapproved the permanent permission request on the ground that approving it "will create overcrowding conditions." SeeR 212. In January 2011, Ms. Aponte submitted her Occupant's Affidavit oflncome and listed Respondent as a person living in the apartment. SeeR 158-67. Sedgwick Houses Resident Services Associate Joel Berson crossed out Respondent's name and reiterated to Ms. Aponte that she could not add Respondent to her family composition because of overcrowding. SeeR 158, 162, 214. On or about January 12, 2011, Mr. Berson sent to Ms. Aponte a Lease Addendum and Rent Notice listing Ms. Aponte as the only authorized occupant of her apartment. SeeR 169. Respondent's income was not included in the calculation of Ms. Aponte's rent. See id. Another permanent permission request form was received by the Sedgwick Houses management office in February 2011. Management denied permanent permission because the Manager did not believe that Ms. Aponte had signed the request form. See R 218-19. Ms. Aponte died on July 17, 2012. SeeR 221. On July 27, 2012, Respondent informed the management office of her death and asked for a lease to the apartment as a remaining family member. SeeR 223. By letter dated August 17 '· 14, 2012 to Respondent, the Manager scheduled a meeting with Respondent to discuss his remaining family member grievance. SeeR 516. After meeting with Respondent on August 17, 2012, the Manager denied his grievance, noting Respondent never received permanent permission to join the household. SeeR 225. On January 23, 2013', Bronx Borough Property·Management met with Respondent regarding his grievance and, on February 1, 2013, denied the grievance, agreeing with the Manager's disposition. SeeR 227. NYCHA afforded Respondent the opportunity to pursue his grievance in an administrative hearing before an impartial Hearing Officer. Administrative Hearing A hearing before an Impartial Hearing Officer commenced on September 18, 2013 but was adjourned to November 19,2013 at Respondent's request. SeeR 234:3-237:17. Respondent testified about and introduced exhibits concerning Ms. Aponte's tenancy, her health, and requests for permission for Respondent to permanently join Ms. Aponte's household. SeeR 247:3-263:6; R 289:4-293:2; R 311-410. Respondent testified that he moved into Ms. Aponte's apartment in mid- 2009. SeeR 259:14-17. Respondent further testified that neither he nor Ms. Aponte filled out or signed the first permanent permission request dated August 24, 2010, over one year after he moved in, and which he saw for the first time when he reviewed the tenant folder to prepare for the hearing. SeeR 255:10-257:3. 18 Respondent called his sister who testified that she helped Ms. Aponte at one point, but then she gave that responsibility to Respondent, who moved in with Ms. Aponte to help her, and that Ms. Aponte also had a health aide for a time. SeeR 263:7-266:14. Resident Services Associate Joel Berson appeared on behalf ofNYCHA and authenticated, among other documents, the tenant data summary form, showing Ms. Aponte lived in a one-bedroom apartment as the sole member of her household. SeeR 267:14-287:2; R 413. Mr. Berson testified that, for a one- bedroom apartment, the standard occupancy is a married couple or adult with a child under six years of age, and an overcrowded one-bedroom apartment consists of two adults who are neither married nor registered as partners, or an adult with a child over six years of age. See R 271 :2-23. Mr. Berson also testified the Manager disapproved the August 24, 2010 permanent permission request on September 20, 2010 because adding Respondent would have created an overcrowded condition in the apartment (seeR 272:5-273:12), and the Manager disapproved the February 7, 2011 permanent permission request because she believed Ms. Aponte did not sign the request. SeeR 279:20-281:4. Mr. Berson further testified that, although Respondent was listed in Ms. Aponte's January 4, 2011 Affidavit oflncome as an occupant of Ms. Aponte's apartment, he crossed out Respondent's name and social security income because 19 Respondent was not a member of the family composition. SeeR 283:19-285: 18; R 432, 435, 439. Additionally, Respondent was not listed as an occupant Ms. Aponte's apartment in the subsequent annual review papers submitted to the management office by Ms. Aponte, dated December 20, 2011. See R 281:1 7- 282:24; R 420-31. Hearing Officer's Decision and Disposition and Final Determination of Status After recounting the testimony and documentary evidence, the Hearing Officer denied Respondent's remaining family member grievance because he did not have permanent permission to join Ms. Aponte's household. Instead, the Hearing Officer found that Ms. Aponte was the sole authorized occupant of a one- bedroom apartment and that management properly denied permanent permission to add Respondent to Ms. Aponte's household because Respondent's addition to the household would have caused overcrowding and violated NYCHA's occupancy standards. See R 452. While noting Respondent "is a sympathetic individual and may have moved into the apartment to assist his elderly mother," the Hearing Officer found "he did not have NYCHA's permission to reside in the apartment [and he] is not a remaining family member as defined by NYCHA regulations." !d. NYCHA issued its final determination on December 18, 2013, adopting the Hearing Officer's decision. SeeR 454. 20 This Article 78 Proceeding On or about April 17, 2014, Respondent commenced this Article 78 proceeding challenging NYCHA's denial of his remaining family member grievance on the ground he was entitled to succeed to the apartment because he had cared for Ms. Aponte. SeeR 465-530. Respondent alleged NYCHA's determination was arbitrary, capricious, and an abuse of discretion, violated anti- discrimination laws requiring reasonable accommodation of people with disabilities, and violated NYCHA's own policies and procedures, which reportedly required NYCHA to transfer Ms. Aponte and Respondent to a larger apartment in which he could receive permanent permission to reside, with potential lease succession rights after Ms. Aponte died. See R 468-94. In his petition and accompanying submissions, Respondent acknowledged he lived with and cared for Ms. Aponte as she had requested until she died, and that temporary occupancy is a reasonable accommodation under these circumstances. SeeR 472 at~ 17; R 473 at ~ 28; R479 at~ 3; R486 at~ 28. In its answer and opposing papers, Appellants showed NYCHA's policy is to provide reasonable accommodation for any qualified individual with a disability. SeeR 88 at~ 49. Appellants explained NYCHA's written consent policy and limited exceptions to its usual tenant selection policy, as well as its policy of denying a permanent permission request if the increase in family size creates 21 overcrowding under NYCHA's occupancy standards. SeeR 89-93 at IJIJ 53-61. Additionally, Appellants discussed how NYCHA's remaining family member policy, among other things, promotes fairness in the tenant selection process so that apartments cannot be "passed on" to the detriment of applicants on NYCHA's waiting list. SeeR 93-94 at IJIJ 62-66. The Trial Court Order denied Respondent's Article 78 petition in its entirety. SeeR 49-60. Justice Kern held that "NYCHA's denial of Respondent's application for succession rights to the subject apartment was made on a rational basis" because Respondent "was not an original tenant family member, did not join the household through family growth and never obtained permanent residency permission from NYCHA's Housing Manager." R 55-56. Justice Kern rejected all of Respondent's legal arguments, including that NYCHA failed to reasonably accommodate Ms. Aponte's disability in accordance with federal, state, and city laws, that NYCHA must be estopped from denying Respondent remaining family member status, and that NYCHA was bound by a 2009 administrative hearing decision by a different hearing officer. 1 SeeR 55-60. 1 Although Respondent argued in the First Department that NYCHA was bound by a 2009 administrative hearing decision, neither the First Department majority nor the dissent addressed this argument in the Order. 22 Appellate Division's Order Reversing The Trial Court Order Respondent appealed the Trial Court Order to the First Department. See R 43. In its Order, a majority of the Appellate Division, First Department reversed the Supreme Court, granted Respondent's petition, and annulled NYCHA's determination. SeeR 6. The majority held that Respondent had standing to bring an Article 78 proceeding to challenge the denial of succession rights (a premise NYCHA never disputed) and to claim associational discrimination under the New York City Human Rights Law. SeeR 9-10. The majority opined it was arbitrary and capricious for NYCHA to deny one permission request because of overcrowding and not invoke that same basis when NYCHA denied a second permanent permission request on the threshold basis the request was not signed by Ms. Aponte. SeeR 10. The majority further found that NYCHA's occupancy standards create "an unacceptable Catch-22" on the theory "a request to add an additional family member will almost always result in overcrowding unless NYCHA fails to simultaneously consider transferring the applicant to a larger apartment." SeeR 10-11. The majority rejected NYCHA's argument that Respondent's temporary residence in the apartment satisfied NYCHA's duties to Ms. Aponte, despite citing contrary First Department precedent in Matter of Po So v. Rhea, 106 A.D.3d 487 (1st Dep't 2013). SeeR 11. According to the majority, NYCHA's determination 23 denying Respondent succession rights in this case was arbitrary and capricious because neither Respondent nor Ms. Aponte was given an opportunity to demonstrate what would constitute a reasonable accommodation under the circumstances. SeeR 11. The majority additionally stated that although "estoppel is not available against a government agency in the exercise of its governmental functions, NYCHA's knowledge that a tenant is living in an apartment is an important consideration in the determination of a subsequent application for RFM status." R 11-12. Appellate Division's Dissent In a dissent joined by Justice Moskowitz, Presiding Justice Tom found that NYCHA's denial of Respondent's remaining family member grievance had a rational basis and was not arbitrary and capricious. SeeR 12-13. The dissent noted that Respondent never received written consent to reside in the apartment and was not an authorized occupant of the apartment prior to Ms. Aponte's death, precluding him from obtaining remaining family member status. See R 16. Furthermore, the dissent observed that Ms. Aponte was repeatedly made aware she could not add Respondent to her household because it would result in overcrowding. SeeR 17. The dissent concluded that Respondent lacked standing to assert a reasonable accommodation claim on behalf of Ms. Aponte. SeeR 18. Moreover, Respondent failed to show associational discrimination because he did 24 not show he suffered any injury causally attributable to any alleged failure by NYCHA to reasonably accommodate his mother's disability. SeeR 18. The dissent further reasoned that NYCHA could not have accommodated Ms. Aponte's disability by making Respondent a permanent resident because this would have created overcrowding in violation ofNYCHA's occupancy standards. SeeR 18. Citing Matter of Po So, 106 A.D.3d 487, the dissent emphasized that giving Respondent permanent residence permission would have provided a windfall to him to the detriment of other potential tenants. See R 18. The dissent also stated that temporary residency permission, had Ms. Aponte ' requested it, would have reasonably accommodated her and, in any event, NYCHA accommodated her disability by allowing Respondent to remain in the apartment. SeeR 18-19. The dissent also observed the majority failed to demonstrate why Respondent's temporary residence in the apartment did not accommodate Ms. Aponte's disability or why permanent occupancy, entitling Respondent to succession rights, was required. SeeR 19. Finally, the dissent stated that NYCHA's knowledge of Respondent's residence in the apartment did not warrant awarding him succession rights. SeeR 19-20. 25 ARGUMENT POINT I THE ORDER SHOULD BE REVERSED BECAUSE NYCHA'S DETERMINATION RESPONDENT DOES NOT QUALIFY AS A REMAINING FAMILY MEMBER IS RATIONAL. Where there is a rational basis to support the finding and conclusions of an administrative agency, a court may not substitute its judgment for that of the agency. See Matter ofHowardv. Wyman, 28 N.Y.2d 434,438 (1971) ("The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body"); Matter of Walker v. Franco, 275 A.D.2d 627, 628 (1st Dep't 2000) ("The decision need not be the best which could·have been made and need not be free from flaws- it must only have a rational basis"); Matter of 31171 Owners Corp. v. New York City Dep 't of Hous. Pres. & Dev., 190 A.D.2d 441, 446 (1st Dep't 1993) ("If, as here, it has a rational basis and is neither arbitrary nor capricious, it should be supported."); Matter of Montgomery v. New York City Hous. Auth., 56 A.D.2d 778, 778 (1st Dep't 1977) (reviewing court's duty "had been completed, when it satisfied itself that there was a rational basis for the administrative determination"). An agency's interpretation of the governing statutes and regulations and its own policies is entitled to deference. See Matter of Howard, 28 N.Y.2d at 438 (courts must defer to an agency's interpretation of the statutes and regulations the 26 agency is obligated to administer if not irrational or unreasonable); Matter of Gilmore v. Hernandez, 40 A.D.3d 410, 412 (1st Dep't 2007) (deferring to NYCHA's "expertise for its interpretation" of the phrase "permanent exclusion"); Matter dfNelson v. Roberts, 304 A.D.2d 20, 23 (1st Dep't 2003) ("The determination of an agency, acting pursuant to its authority and in its area of expertise, is entitled to deference."); Matter of 31171 Owners Corp., 190 A.D.2d at 446 ("[A]n agency construction of its own rules is entitled to great deference."). Courts review remaining family member claims in accordance with the standards set by NYCHA. See Matter of Henderson v. Popolizio, 76 N.Y.2d 972 (1990)? NYCHA's determination denying Respondent's remaining family member grievance is rational because he did not receive permanent permission to join Ms. Aponte's household. NYCHA instead effectively granted Respondent temporary permission (without including his income in its rent calculation) to live with Ms. Aponte so he could care for her, but permanent permission, not temporary permission, is required to establish succession rights. See R 131 at XII.A.l.c (requiring permanent permission); R 124 at XI.B.3.a.3; R 128 at XI.B.3.g (temporary occupants must vacate the apartment when the approved . occupancy period expires or when the tenant moves out or dies); R 134-35 at 2 Although the Court of Appeals decided Matter of Henderson in part based on a previous version ofNYCHA's Management Manual, the proposition that courts must look to NYCHA's policy and procedure in adjudicating remaining family member claims remains unchanged. 27 XII.C.3.e (listing categories of grievants who may not succeed to a lease as a remaining family member, including "a family member with temporary residency permission only"). The First and Second Departments have repeatedly upheld NYCHA's determinations denying remaining family member status because the grievant did not obtain permanent permission, including where the grievant had only received temporary permission. See, e.g., Matter of Ortiz v. Rhea, 127 A.D.3d 665, 666 (1st Dep't 20 15) ("[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 Dep't 2015) (record "established that the petitioner never obtained written permission for permanent residency from the housing management"); Matter of Figueroa v. Rhea, 120 A.D.3d 814, 815 (2d Dep't 20 14) ("petitioner never obtained written permission for permanent occupancy from the housing manager of the public housing development"); Matter of Rentas v. New York City Hous. Auth., 282 A.D.2d 215, 215 (I st Dep't 200 I) ("Petitioner never obtained written approval from the project management to become a permanent member of the then authorized tenant family"). Although Ms. Aponte submitted two permanent permission requests, management denied both of them. Respondent could not have received permanent 28 permission because it would have resulted in overcrowding of Ms. Aponte's one- bedroom apartment under NYCHA' s occupancy standards. See R 121 at XI.B.2.a.3.d. ("The proposed additional person shall not receive permanent residency permission if the total number of persons in the apartment, including the proposed additional person, exceeds the requirements for standard occupancy ... based on apartment size.") (emphasis in original); R 171 (an "overcrowded" one- bedroom apartment includes two adults who are not married or domestic partners or a single adult with a child of six years of age or more). 3 Although management denied Ms. Aponte's first permanent petrnission request because it would have resulted in overcrowding, it denied the second request because it did not believe Ms. Aponte signed it. SeeR 212, 214, 219. The majority relied on the two different reasons for denying permanent permission to find NYCHA's determination arbitrary and capricious. SeeR 10. There is no inconsistency. Management did not reach the merits of the second request because as a threshold matter it was not signed by Ms. Aponte. Even ifthere were no issue 3 Respondent did not challenge the substance' ofNYCHA's Occupancy Standards in the lower courts, and he has therefore waived his right to do so on appeal. See Gregory v. Cambria, 69 N.Y.2d 655, 656-57 (1985) ("We have not considered the appellant's alternative argument ... since that issue was not raised in the petition and thus has not been preserved for review."); Logiudice v. Logiudice, 67 A.D.3d 544, 545 (I st Dep't 2009) ("Defendant's assertions that she lacked the mental capacity to enter into the stipulation ... were not advanced below, hence are unpreserved on this appeal."); Matter ofELRAC, Inc. v. Edwards, 270 A.D.2d 414,415 (2d Dep't 2000) ("We decline to address this issue, as it was never presented to the Supreme Court in the first instance, and is therefore improperly raised for the first time on appeal.") (citations omitted). 29 concerning Ms. Aponte's signature, there is no reason management would have deviated from its denial of the first request on the grounds of overcrowding made just four months earlier. Courts routinely have upheld the denial of permanent residency requests based on NYCHA's occupancy standards, including determinations that two adults . who are not married or domestic partners in a one-bedroom apartment would be overcrowded. See, e.g., Matter of Po So, 106 AD .3d at 488 (upholding management's denial of the tenant's request to permanently add her adult daughter to her household because it would "create an overcrowding situation in violation of NYCHA's occupancy standards [for one-bedroom apartments] and would unfairly provide a windfall to her daughter to the detriment of other potential tenants"); Matter of Bashmet v. Hernandez, 87 A.D.3d 866, 866 (1st Dep't 2011) (holding NYCHA's determination petitioner does not qualify for remaining family member status "has a rational basis and is not affected by an error of law" because the "occupancy standards do not permit an additional person, not part of a domestic union, to join a household in a one-bedroom apartment," meaning permanent permission "would nonetheless have been denied based on the occupancy standards"); Matter of Rodriguez y. Hernandez, 51 A.D.3d 532, 532 (1st Dep't 2008) (concluding NYCHA's interpretation of its occupancy standards is entitled to deference); Matter of Haynie v. ·New York City Hous. Auth., Index No. 30 402656/06, at *1-2 (Sup. Ct. N.Y. Co. Dec. 5, 2006) (Abdus-Salaam, J.) (denial of permanent permission request on the basis of overcrowding "is rational and consistent with respondent's written occupancy standards" "which provide that two individuals ... who are not domestic partners may not occupy a one-bedroom apartment.") (seeR 461-62). The majority ignored this precedent. Instead, the majority erroneously held that NYCHA's occupancy policy "creates an unacceptable Catch-22- a request to add an additional family member will almost always resultin overcrowding." SeeR 10. This statement is incorrect. Assuming a tenant of record wishes to add an adult to the household through a permanent residency request, the request may or may not result in overcrowding, depending on the size of the apartment and the identity of the adult. For example, the addition of a spouse to a one-bedroom apartment occupied by one person would not result in overcrowding. SeeR 171. Similarly, the addition of a grown son to a two-bedroom apartment with a mother and male child over the age of six would not result in overcrowding. See id. In addition, where authorized occupants have vacated an apartment, the addition of a new household member may not result in overcrowding. Nor, as the majority suggested, should NYCHA have transferred Ms. Aponte to a larger apartment to avoid overcrowding. Cf R 10-11. This Court should defer to NYCHA's policy of allocating larger apartments to new applicant and growing 31 tenant families; adult family members seeking public housing may submit their own applications. See 24 C.F.R. §§ 960.257(a) & (c) (mandating that housing authorities adopt occupancy policies in connection with the annual reexamination of the income and composition of tenant families); N.Y. Pub. Hous. Law§ 2 (explaining the purpose of public housing is to alleviate "unsanitary and substandard housing conditions owing to overcrowding ... [which] are a menace to the health, safety, morals, welfare and reasonable comfort of the citizens of the state"). NYCHA's policy does not require it to approve a transfer to a larger apartment to avoid overcrowding so it can grant permanent permission. The majority confuses two different scenarios governed by separate provisions in NYCHA's Management Manual concerning when a family may transfer from an overcrowded apartment to a larger apartment. See R 10 -11. The first scenario is when a tenant requests permission for a person to permanently join her household. In that situation, the Management Manual states "[t]he Housing Manager must deny a permanent residency permission request if the increase in family size creates an overcrowded condition." R 121 at XI.B.2.a.(3)(d). This is the provision on which development management correctly relied in denying Ms. Aponte's request for Respondent to permanently reside in her apartment. SeeR 211-12. NYCHA can grant temporary permission where it would result in overcrowding, 32 but "[ s ]taff shall not consider transferring a family to a larger apartment if the addition of the temporary occupant to the household, combined with the tenant's existing household, 'overcrowds' or 'extremely overcrowds' the apartment [in accordance with the TSAP]:'' R 125 at XI.B.3.a.(5). The second scenario is after the tenant vacates the apartment or dies and , someone who earlier had received permanent permission seeks to succeed to the apartment as a remaining family .member. In that situation, the provision in NYCHA's Management Manual states, "[i]fan RPM claimant meets all other qualifications for the offer of a lease, the Development Housing Manager can offer the RPM claimant a lease to the apartment in which (s)he resides" and the new tenant may "submit a request to transfer to a larger apartment" because "the resulting new tenancy overcrowds the apartment." R 133 at XII.B.3.c. (emphasis added). This provision would apply where, for example, overcrowding results . from family growth, e.g., the remaining family member received permanent permission to live in the apartment and subsequently had children, or the remaining family member received permanent permission to live in the apartment and another· individual residing in the apartment later had children. Accordingly, NYCHA's determination denying Respondent's grievance is rational. NYCHA properly applied its permanent permission and remaining family member policies, and as explained in detail in the next section, it reasonably 33 accommodated Ms. Aponte's disabilities by allowing Respondent to live in the apartment so he could provide the care Ms. Aponte needed. POINT II THE ORDER SHOULD BE REVERSED BECAUSE A CARETAKER'S SUCCESSION TO AN APARTMENT IS NOT A REASONABLE ACCOMMODATION FOR A DISABLED TENANT. Federal and state disability law limits an accommodation to those measures necessary to afford a tenant with a disability equal opportunity to use and enjoy a dwelling as similarly situated tenants who have no disability. City disability law similarly requires provision of a reasonable accommodation to enjoy the right in question. Because succession rights for a caregiver are not an accommodation for a tenant's disability and instead provide a windfall to the caregiver to the detriment of other potential tenants, the Order should be reversed. A. A Disabled Tenant Is Entitled Only To Reasonable Accommodations Necessary To Afford Equal Opportunity To Use And Enjoy Housing. Under the Fair Housing Act Amendments ("FHAA'') of 1988, discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] equal opportunity to use and enjoy a dwelling." · 42 U.S.C. § 3604(f)(3)(B). The Rehabilitation Act of 1973 ("RA") mandates in Section 504, "No otherwise qualified individual with a disability in the United 34 States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ... " 29 U.S.C. §794(a). Section 504 requires that "an otherwise qualified handicapped individual [] be provided with meaningful access to the benefit that the grantee offers ... [including] reasonable accommodations in the grantee's program[.]" Alexander v. Choate, 469 U.S. 287 (1985). A reasonable accommodation claim is analyzed the same way under the FHAA, the RA, and the Americans with Disabilities Act, as the relevant portions of all three statutes require a covered entity to provide reasonable accommodations to make the entity's benefits and programs accessible to people with disabilities. See Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 337 (E.D.N.Y. 2012). The relevant section of the New York State Human Rights Law mirrors the language of the FHAA, so that it is unlawful for the owner of"publicly-assisted housing accommodations" to refuse to make reasonable accommodations when necessary to afford a person with a disability "equal opportunity to use and enjoy a dwelling," and also more generally, it is unlawful for the owner of "a housing accommodation" to "discriminate against any person because of ... disability ... in the terms, conditions or privileges of the sale, rental or lease of any such housing 35 . accommodation ... " N.Y. Exec. Law§§ 296 (2-a)(d)(2), (5)(a)(2). The New York City Human Rights Law also requires provision of reasonable accommodations in housing to "enjoy the right or rights in question." N.Y.C. Admin. Code§ 8-107(15)(a). "The New York State and federal courts have found a substantial identity between the language and purposes of Executive Law§ 296(5), Administrative Code § 8-107, and the federal Fair Housing Act 42 U.S.C. § 3601 et seq." Wilson v. Phoenix House, 42 Misc. 3d 677,710 (Sup. Ct. Kings Co. 2013). To prevail on a discrimination claim based on a failure to reasonably accommodate a disabled tenant under the FHAA, a plaintiff must demonstrate that "(1) he suffers from a handicap as defined by the FHAA; (2) the defendant knew or reasonably should have known of the plaintiffs handicap; (3) accommodation of the handicap 'may be necessary' to afford plaintiff an equal opportunity to use and enjoy the dwelling; and (4) defendants refused to make such accommodation." Sinisgallo, 865 F. Supp. 2d at 336. In assessing whether a landlord failed to reasonably accommodate a disabled tenant, New York federal and state courts consistently emphasize that "it is the handicap that is accommodated" and "the duty to make reasonable accommodations is framed by the nature of the particular handicap." Salute v. Stratford Greens Garden Apts., 136 F.3d 293, 301 (2d Cir. 1998); see also New York State Div. of Human Rights v. 111 East 88th Partners, 36 2012 N.Y. Misc. LEXIS 2647, at *26 (Sup. Ct. New York Co. June 1, 2012) ("[T]he nature of the accommodation is framed by the nature of the particular handicap or disability alleged.") (citing Hubbard v. Samson Management Corp., 994 F. Supp. 187, 190 (S.D.N.Y. 1998)). Furthermore, "Although a public entity must make 'reasonable accommodations,' it does not have to provide a disabled individual with every accommodation he requests or the accommodation of his choice." McElwee v. County of Orange; 700 F.3d 635, 641 (2d Cir. 2012); see also Logan v. Matveevskii, 57 F. Supp. 3d 234, 256 (S.D.N.Y. 2014) (citing McElwee); cf 29 C.F.R. §1630 app (Under the ADA, "The employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide."). "[A]n accommodation is not 'necessary' to afford a disabled person access to equal housing opportunity when the accommodation sought does not directly ameliorate an effect of the disability." Marks v. BLDG Mgmt. Co., 2002 U.S. Dist .. LEXIS 7506, at *21 (S.D.N.Y. 2002), aff'd, 57 Fed. Appx. 501 (2d Cir. 2003). "[T]he FHA does not require defendants to waive generally applicable policies when such policies negatively affect disabled individuals for reasons unrelated to their disability." /d. at *22. 37 The foregoing principles merit close examination, as their application to this case illustrates the faulty reasoning of the First Department majority opinion. In Salute, the disabled plaintiffs argued that the defendants' refusal to rent them· apartments because they were Section 8 housing program recipients violated the reasonable accommodation provision of the FHAA because their economic status resulted from their disabilities. See Salute, 136 F.3d at 301. The Second Circuit rejected the plaintiffs' argument, emphasizing that "the duty to accommodate is shaped by the handicap," and the accommodation sought did not directly address the plaintiffs' disability: The "opportunity to use and enjoy" language of the FHAA reinforces the ability of people with handicaps to have the same opportunity as similarly situated persons who have no evident handicaps. What stands between these plaintiffs and the apartments at Stratford Greens is a shortage of money, and nothing else. In this respect, impecunious people with disabilities stand on the same footing as everyone else. Thus, the accommodation sought by plaintiffs is not "necessary" to afford handicapped persons 'equal opportunity' to use and enjoy a dwelling.4 Id. at 301-02. 4 Whether a requested accommodation is necessary to afford "equal opportunity to use and enjoy a dwelling," 42 U.S.C. § 3604(f)(3)(B), is not the same analysis as whether an accommodation imposes an undue burden, which is a defense available to a defendant. Here, there is no need to undertake an undue burden analysis where the requested accommodation is not necessary to afford the requisite equal opportunity. See 42 U.S.C. § 3604(f)(3)(B) (discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] equal opportunity to use and enjoy a dwelling.") (emphasis added). 38 Courts have widely relied on Salute in rejecting discrimination claims where the plaintiff sought an accommodation that went beyond the scope of directly addressing the disability.5 In Marks, the plaintiff, who had AIDS, was the tenant of record in a rent-controlled apartment in New York City. See Marks, 2002 U.S. Dist. LEXIS 7506, at *3. The plaintiff began going to Florida during the winter because the warm weather was beneficial to her health. See id. at *3-4. The plaintiff requested that the landlord accommodate her medical needs by allowing a roommate to stay in the apartment during her absence, but the landlord denied the request and attempted to terminate her tenancy. See id. at *5-7. The plaintiff then commenced an action under the FHAA, arguing, in relevant part, that the defendants' denial of her request to allow her roommate to remain in the apartment violated the FHAA as a denial of an accommodation ofthe plaintiffs disability. See id. at *8. The court granted the defendants' renewed motion for judgment as a matter of law and held that the plaintiffs request to leave 5 Cases pre-dating Salute also hold that an accommodation is not reasonable unless it directly addresses the disabled plaintiffs ability to use and enjoy housing. See, e.g., Anonymous v. Goddard Riverside Community Ctr., 1997 U.S. Dist. LEXIS 9724, *II (S.D.N.Y. 1997) (dismissing FHA claim where the plaintiff failed to allege the defendants' failure to accommodate the plaintiffs dietary needs interfered in any way with her ability to use and enjoy her housing); Advocacy Resource Ctr. v. Town of Chazy, 62 F. Supp. 2d 686, 689-90 (N.D.N.Y. 1999) (denying plaintiffs' motion for summary judgment where they failed to prove an exception to a zoning ordinance was related to a disability and that they required a reasonable accommodation). 39 a roommate in her apartment while she was in Florida did not constitute a request for an accommodation within the meaning of the FHAA: In Salute, the Second Circuit foreclosed the availability under the FHA of accommodations that do not directly address an individual's disability, as opposed to addressing economic or other hardships that may stem from that disability .... Plaintiffs request to waive the Roommate Rule would [] have done more than simply afford her an equal opportunity to use and enjoy her apartment, it would have granted her a special subsidy unavailable to nondisabled tenants. This the law does not require. Because Plaintiff has failed to show how her accommodation request addressed a hardship created by her disability, her claim must fail as a matter of law. !d. at *21, *26 (emphasis in original) Similarly, in United States v. Salvation Army, 1999 U.S. Dist. LEXIS 14861, at *4-6 (S.D.N.Y. 1999), the party in interest, Barbara Thorne, sought temporary housing in New York City at the Anthony Residence, a residential facility for single, working women and full-time students, operated by The Salvation Army. Thorne did not meet the residence criteria because she was living in New York to attend aHead Trauma Rehabilitation Program at NYU Medical School, and her application to live at the Anthony was denied. See id. at *4-9. The Court held that the defendants did not deny Thorne a reasonable accommodation by refusing to allow her to live at the Anthony: Here, the "accommodation" request that arguably was implicit in Thorne's housing application was unrelated to her disability. Thorne had no need for defendants to accommodate any infirmity associated 40 with her head injury because her physical condition is not what deprived her of"equal opportunity to use and enjoy a dwelling[.]" 42 U.S.C. § 3604(f)(3)(B). What stood in Thome's way was the fact that she was neither a student nor a working woman. Thome otherwise stood on equal footing as other applicants. The FHAA does not require what plaintiff incorrectly characterizes as an "accommodation" under these circumstances. [citing Salute]. !d. at *28-29. / New York State appellate courts employ a similar analysis in reviewing denials of reasonable accommodations in housing claims under the New York State and City Human Rights Laws. For example, in Matter of Po So, 106 A.D.3d 487, which involved nearly identical circumstances to this case, the First Department held that temporary permission to reside in a NYCHA apartment is a reasonable accommodation where a NYCHA tenant has a disability requiring full- time care, and permanent residency permission for the tenant's daughter functioning as a caregiver was denied due to overcrowding. The First Department upheld NYCHA's determination that adding the petitioner's daughter as a permanent tenant in the household would create overcrowding in violation of NYCHA's occupancy standards- and "would unfairly provide a windfall to her daughter to the detriment of other potential tenants." !d. at 488. "Although petitioner has a disability requiring essentially 24~hour care, her disability was . reasonably accommodated by the offer to permit her adult daughter to reside in the apartment on a temporary basis, which she can continue to do as long as petitioner 41 requires her assistance. (see Executive Law§ 296; Administrative Code of City of NY§ 8-107[5][a][1]; [15])." Matter of Po So, 106 A.D.3d at 488. The Second Department has also held that a requested accommodation that benefits a caregiver for a disabled tenant is not necessary for the tenant to use and enjoy his or her apartment and is not required under the law. In Matter of Lindsay Park Housing Corp. v. New York State Div. of Human Rights, 56 A.D.3d 477,477 (2d Dep't 2008), the court reversed the determination of the New York State Division of Human Rights, which found that the petitioners had discriminated against the complainant because of her age and disability when they revoked her parking space because she no longer drove or owned a car. The Administrative Law Judge held that the petitioners failed to reasonably accommodate the complainant's disability because the complainant's sister, who would drive her to the doctor and other appointments, did not have a place to park when she came to pick her up. See id. The Second Department annulled the determination, holding, "To establish a violation of the Human Rights Law for failure to provide a reasonable accommodation, the complainant must establish a disability, the accommodation may be necessary in order for the complainant to use and enjoy his or her apartment, and the building owner refuses to make such an accommodation." !d. Although in certain circumstances a building owner may be required to grant a 42 disabled tenant a parking space for his or her own use, "the complainant is not seeking parking for herself, but rather for her caregivers. This is an entirely different service, not provided to nondisabled tenants who may also have caregivers such as babysitters." !d. at 479. The court further held, "[T]he complainant failed to demonstrate that she was denied ·a reasonable accommodation for her disability. There is no evidence that the complainant requested a reasonable accommodation: what she requested was continuation of her license for a parking space." !d. (citation omitted). B. NYCHA Accommodated Ms. Aponte's Disability By Allowing Respondent To Reside Temporarily In Her Apartment. Respondent's temporary residence in Ms. Aponte's apartment addressed the "hardship created by [Ms. Aponte's] disability" and therefore afforded Ms. Aponte equal opportunity to use and enjoy her apartment. Marks, 2002 U.S. Dist. LEXIS 7506, at *26. NYCHA had no obligation to grant a permanent residency permission request (with potential succession rights) as a reasonable accommodation because the right to succeed to the lease did not "directly ameliorate" Ms. Aponte's disability. !d. at *21. NYCHA's Management Manual specifically addresses reasonable accommodations as an exception to the general policy precluding the addition of family members to the household where it would result in overcrowding. The 43 Management Manual provides (1) management may grant temporary permission even where the additional occupant would cause overcrowding; and (2) a full-time or part-time home care attendant who cares for the tenant or an authorized family member may be granted temporary residency permission during the duration of his/her service. SeeR 125 at XI. B.3.a.(5); R 126 at XI.B.3.a.(7). Respondent's presence in the apartment was needed so long as Ms. Aponte required his care, and Respondent's temporary residence until Ms. Aponte's passing satisfied this need. Thus, NYCHA fulfilled its obligation to accommodate Ms. Aponte's disability by allowing Respondent to stay in the apartment on a temporary basis. That Respondent would have preferred NYCHA grant permanent · permission, potentially securing Respondent's succession rights to the apartment, is irrelevant. NYCHA is under no obligation to waive generally applicable policies when it is not necessary to accommodate the disability. See Marks, 2002 U.S. Dist. LEXIS 7506, at *22. Nor is NYCHA required to "provide a disabled individual with every accommodation he requests or the accommodation of his choice." McElwee, 700 F.3d at 641. ·A transfer to a larger apartment so that Respondent could receive permanent permission to reside in the apartment also was not legally required because Respondent's temporary residence in the apartment addressed the hardship created by Ms. Aponte's disability. See Marks, 2002 U.S. Dist. LEXIS 7506, at *26. 44 In fact, had NYCHA granted a permanent permission request, NYCHA would have provided Ms. Aponte with more than an equal opportunity to use and enjoy her apartment because Respondent's potential succession rights were not necessary to afford Ms. Aponte equal opportunity to use and enjoy her apartment. See Salute, 136 F.3d at 302. NYCHA was not required to waive its occupancy standards, which apply to all apartments and all tenants, so that Respondent could receive a future benefit that was wholly unrelated to Ms. Aponte's disability. In this regard, Ms. Aponte was on "equal footing" with all NYCHA tenants. Salvation Army, 1999 U.S. Dist. LEXIS 14861, at *28. Furthermore, permanent residency permission would have benefited Respondent as the caregiver rather than the disabled tenant, Ms. Aponte. This benefit to Respondent is simply not part of the reasonable accommodation · calculus. See Matter of Po So, 106 A.D.3d at 488; Matter of Lindsay Park Hous. Corp., 56 A.D.3d at 479. Providing a caregiver with succession rights to a tenant's apartment is not an accommodation for a tenant's disability, goes well beyond addressing the needs of the disabled tenant, provides the disabled tenant with an additional benefit not available to other similarly situated non-disabled tenants, and is therefore not required under any law. Indeed, Respondent takes the paradoxical position that his temporary residence in Ms. Aponte's apartment was sufficiently 45 meaningful to provide him with succession rights but insufficient to have accommodated Ms. Aponte's disability. Respondent cannot have it both ways. The majority attempted to distinguish Matter of Po So in holding that NYCHA' s determination "cannot be deemed rational in light of the absence of a proper i~:tquiry and an opportunity to be heard on the issue." R 11. According to the majority, "We can never know what would have constituted a reasonable accommodation of petitioner's mother's disability under the circumstances." R 11. Factually and legally, the majority is incorrect. First, the precise accommodation Ms. Aponte wanted was specifically identified. Ms. Aponte sought permission for Respondent to reside with her because she could not live alone (and she received that accommodation). SeeR 211-12,216-17. Second, Respondent, NYCHA, the First Department in Matter of Po So, and the dissent in this case have all recognized that temporary permission constitutes a reasonable accommodation of the disability of an individual who, like Ms. Aponte, needed a full-time caretaker, who was not eligible to receive permanent permission; Respondent explicitly conceded that allowing Respondent to live with Ms. Aponte was a reasonable accommodation option. SeeR 486 at~ 28; see also R 472 at~ 28. NYCHA's Management Manual specifically states, "A full-time or part-time home attendant who provides care to either the tenant or an authorized 46 family member may be granted temporary residency permission during the duration of his/her service. Permanent residency permission is not permitted." R 126 at XI.B.3.a.(7). In Matter of Po So, the First Department recognized that the tenant's need for full-time care "was reasonably accommodated by the offer to permit her adult daughter to reside in the apartment on a temporary basis, which she can continue to do as long as petitioner requires her assistance." Matter of Po So, I 06 A.D.3d at 488. The dissent in this case relied on Matter of Po So and concluded "[t]he majority fails to demonstrate why petitioner's mother's disability was not accommodated by this temporary residency, or why a permanent occupancy, entitling petitioner to succession rights, was required." R 19. Third, NYCHA's policy is to engage in an interactive process with disabled tenants who request a reasonable accommodation. SeeR 106. Although that policy could have been better implemented here, Resident Services Associate Joel Berson did meet with Ms. Aponte to explain she could not add her son to her family composition due to overcrowded living conditions. SeeR 214. As the dissent correctly pointed out, Ms. Aponte's "disability was accommodated de facto by NYCHA knowingly permitting petitioner to remain in the apartment." R 19. In any event, there is no authority supporting the majority's position that the default remedy for a landlord's failure to fully engage in an interactive process with a disabled tenant, who is nevertheless accommodated, is an additional benefit 47 that is unrelated to the tenant's disability, such as succession rights for a caregiver. Cf Hayes v. Estee Lauder Cos., Inc., 34-A.D.3d 735, 737 (2d Dep't 2006) ("there is no controlling or persuasive authority holding that an employer may be held liable based solely on its failure to engage in an interactive process with an employee, absent a showing that the breakdown of the interactive process led to the employer's failure to provide a reasonable accommodation."). Respondent in this case should not receive windfall succession rights, especially when he took up residence in the apartment in mid-2009- over a year before the first permanent permission request was submitted in August 2010. SeeR 211-12, 259. Finally, because NYCHA did not fail to reasonably accommodate Ms. Aponte's disability, Respondent cannot claim associational discrimination, contrary to the First Department's holding. Cf R 9-10. A plaintiff claiming associational discrimination under city and state law must allege and prove an actionable injury as a result of the defendant's discriminatory animus against a person with a protected characteristic with whom the plaintiff is associated. See, e.g., Rivera v. Lutheran Med. Ctr., 22 Misc. 3d 178, 180-81 (Sup. Ct. Kings Co. 2008) (where plaintiff alleged he was terminated from his employment at defendant hospital because he supported and aided his deaf sister-in-law, who sued the defendant for violating her civil rights when she was a patient, the plaintiff stated a cause of action for associational discrimination under the New York City 48 Human Rights Law); Dunn v. Fishbein, 123 A.D.2d 659, 660 (2d Dep't 1986) (where the plaintiff was denied an apartment rental after he told the building superintendent that his roommate was black, the plaintiff had standing because he suffered an injury and "f1 e ]ll within a zone of interest which [the New York State Human Rights Law] protects."). Federal law on associational discrimination, which the First Department majority did not even address, requires a non-disabled plaintiff alleging associational discrimination to "prove an independent injury causally related to the denial of federally required services to the disabled persons with whom the non- disabled persons are associated." Loeffler v. Staten Island Univ. Hasp.; 582 F.3d 268, 279 (2d Cir. 2009) (holding that the plaintiff children of a deaf hospital patient, who were taken out of school so they could provide sign language interpretation service to their father and were exposed to his suffering, had standing to bring their own RA claims because their injuries were independent of their parents' injuries). The FHA imposes similar standing requirements. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982) (a plaintiff must allege a" 'distinct and palpable injury' "that occurred" 'as a result of the defendant's actions.' "). In Matter of Filonuk v. Rhea, 84 A.D.3d 502, 503 (I st Dep't 20 II), the First Department looked to Loeffler for guidance in holding that a plaintiff who 49 sought remaining family member status from NYCHA did not meet the standing requirements for an associational discrimination claim. Under city, state, and federal law, Respondent cannot plead or prove any injury to himself, whether characterized as independent or otherwise, as a result of any disability animus or discrimination against Ms. Aponte. Because NYCHA did not discriminate against Ms. Aponte, NYCHA's denial of Respondent's claim for succession rights does not give rise to liability for associational discrimination. In sum, the law requires only that NYCHA reasonably accommodate a disabled tenant by providing an accommodation that is necessary to afford the tenant equal opportunity to use and enjoy her apartment. No matter how salutary Respondent's intentions, he is not entitled to jump to the head of the line of nearly 260,000 families on the waiting list for public housing. NYCHA allowed Respondent to live with Ms. Aponte until her passing; no more was required. Accordingly, the Order should be reversed. POINT III THE ORDER SHOULD BE REVERSED BECAUSE NYCHA DID NOT IMPLICITLY CONSENT TO RESPONDENT'S PERMANENT RESIDENCE IN MS. APONTE'S APARTMENT. NYCHA should not be estopped from enforcing its written consent and remaining family member requirements and denying Respondent lease succession rights. Estoppel is not available against a government agency in the performance 50 of its duties as a matter of policy to avoid "large scale public fraud." Matter of E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359,370 (1988). The majority acknowledged "estoppel is not available against a government agency in the exercise of its governmental functions" but stated "NYCHA' s knowledge that a tenant is living in an apartment is an important consideration in the determination of a subsequent application for RFM status." R 11-12. NYCHA's alleged knowledge Respondent resided in Ms. Aponte's apartment cannot advance his remaining family member claim for four reasons. First, this Court has held a governmental agency cannot be estopped from complying with its legal obligations when a claimant does "not meet the eligibility requirements for succession rights to the apartment," even if the managing agent "acquiesced in petitioner's occupancy." Matter of Schorr v. New York City Dep 't ofHous. Pres & Dev., 10 N.Y.3d 776,778 (2008). The First and Second Departments have applied this premise to remaining family member claims against NYCHA. See, e.g., Matter of Andrade v. New York City Hous. Auth., 132 A.D.3d 598, 598 (I st Dep 't 20 15) ("Even if respondent was aware that petitioner was living in the apartment to care for his mother, respondent may not be estopped from denying petitioner's grievance"); Matter of Dancil v. New York City Hous. Auth., 123 A.D.3d 442, 442 (1st Dep't 2014) (" '[R]espondent may not be estopped from denying RFM status even if it ... was aware of petitioner's 51 occupancy' ") (citing Matter of Rosello v. Rhea, 89 A.D.3d 466, 466 (1st Dep't 2011)); Matter of Figueroa v. Rhea, 120 A.D.3d 814, 815 (2d Dep't 2014) ("[NYCHA] may not be estopped from denying remaining family member status even if it failed to explain the applicable policies or assist the tenant of record with the necessary forms, or if it acquiesced in the petitioner's occupancy"); Matter of Gonzalez v. New York City Hous. Auth., 112 A.D.3d 531, 532 (1st Dep't 2013) ("Contrary to petitioner's contention, he is not entitled to [remaining family member] status on the ground that the agency had implicit knowledge of his alleged long-term occupancy of the apartment.") (citations omitted); Matter of Ralyou v. Rhea, 101 A.D.3d 422, 422 (1st Dep't 2012) ("Even if respondent apparently acquiesced in petitioners' residency in the apartment, [NYCHA] is not estopped from denying them remaining family member status"). Second, NYCHA should not be penalized by losing the ability to enforce its permanent permission and remaining family member eligibility requirements simply because it allowed Respondent to stay in Ms. Aponte's apartment and provide the care she required. Respondent would have been the first to complain had NYCHA instituted administrative proceedings against the ailing Ms. Aponte for having an unauthorized occupant. Third, at most NYCHA can be found to have implicitly consented to Respondent's temporary residence in the apartment rather than his permanent 52 residence, as shown by the fact it did not include Respondent's social security income in calculating the rent. SeeR 158, 162, 169. As stated in NYCHA's Management Manual, "[t]he income of a person who is granted temporary residency permission is not considered for the purposes of adjusting the tenant's rent." R 124 at XI.B.3.a.( 4) (emphasis in original). The income of a proposed permanent resident, however, is included in the calculation of the tenant's rent. SeeR 121-22 at XI.B.2.(3)(e). So if the Court were to find NYCHA implicitly consented to Respondent's rent-free residence in Ms. Aponte's apartment, NYCHA's consent can only have been to his temporary residence to care for Ms. Aponte. Temporary permission cannot give rise to remaining family member status and lease succession rights. See R 131 at XII.A.l.c. Fourth, far from implicitly consenting to Respondent's permanent residence in Ms. Aponte's apartment with potential succession rights, NYCHA explicitly denied in writing both permanent permission requests seeking to add Respondent to Ms. Aponte's household. NYCHA did not include Respondent as an occupant of the apartment on the January 2011 lease addendum it sent to Ms. Aponte, seeR 169, and Resident Services Associate Berson removed Respondent's name from Ms. Aponte's affidavit of income and told her she could not add him to her household because of overcrowding. SeeR 158, 162, 214; R 283:19-285: 18; R 432, 435, 439. 53 Neither Matter of McFarlane v. New York City Hous. Auth., 9 A.D.3d 289 (1st Dep't 2004), nor Matter of Gutierrez v. Rhea, 105 A.D.3d 481 (1st Dep't 2013), lv denied, 21 N.Y.2d 861 (2013), the two decisions on which the majority ·relied, supports a finding NYCHA implicitly consented to Respondent's permanent residence in Ms. Aponte's apartment. In fact, in Matter of McFarlane, the First Department upheld NYCHA's denial of the petitioners' remaining family member claims based on their failure to comply with the written permission requirement as "fully justified by the statutes, regulation, policies and case law that bind [NYCHA]." Matter of McFarlane, 9 A.D.3d at 291. The court also specified federal regulations precluded NYCHA from granting remaining family member status where the tenant did not obtain permission. See id. at 290 (citing 24 C.F.R. section 966.4(a)(1)(v)). In contrast to Matter of Gutierrez, where the remaining family member claimant was listed on the tenant's affidavits of income for four years, and the tenant was told that" 'everything was okay'" (Matter of Gutierrez, 105 A.D.3d at 482), in this case Respondent was listed on Ms. Aponte's Affidavits oflncome only once, in 2011, the year before Ms. Aponte died, and at that point, as discussed above, Mr. Berson explained to Ms. Aponte that Respondent could not receive permanent permission. SeeR 158, 162, 214; R 283:19-285: 18; R 432, 435, 439. Under these circumstances, implied consent to Respondent's permanent residence cannot be found. 54 Accordingly, the First Department erred in creating tenancy rights where none existed based on a finding of implied consent to Respondent's permanent residence in Ms. Aponte's apartment. CONCLUSION Based on the foregoing, Appellants respectfully request that this Court reverse the Order and reinstate the Trial Court Order denying the petition and dismissing this Article 78 proceeding in its entirety. Dated: New York, NY December 15, 2016 Donna M. Murphy Jane E. Lippman Nancy M. Harnett Seth E. Kramer Of Counsel DAVID FARBER General Counsel New York City Housing Authority ~CUL e_ ~uJJ?~ By: Jane E. Lippman, Of Counsel 250 Broadway, 9th Floor New York, NY 10007 55 (212) 776-5259 Attorneys for Appellants-Respondents Shola Olatoye and the New York City Housing Authority CERTIFICATE OF COMPLIANCE In compliance with Rule 500.13(c) of the Court of Appeals Rules of Practice, I hereby certify this computer generated brief was prepared using Times New Roman proportionally-spaced typeface in 14 point size font (except for footnotes that contain 12 point size font). This brief is double-spaced (except for footnotes and block quotes). The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, the statement of questions presented, proof of service, certificate of compliance, or any authorized addendum, is 12,353. I have relied on the word count provided by Microsoft Word. Dated: New York, NY December 15,2016 ~&A-Q_ ~-~~ ~.Lippman, Of Counsel AFFIDAVIT OF SERVICE BY OVERNIGHT MAIL STATE OF NEW YORK) . : SS.: COUNTY OF NEW YORK) I, Maria Vigario, being duly sworn, depose and say: I am not a party to this action, I am over EIGHTEEN ( 18) years of age and I am employed by the New York City Housing Authority at 250 Broadway, New York, New York 10007. On December 16, 2016, I setved the within Brief of Respondents-Appellants upon: Leah Goodridge, Esq. Michael Grintbal, Eq. · MFY Legal Services, Ine. 299 Broadway, 4th Floor New York, NY 10007 by depositing three true copies of these papers in a postage paid properly addressed envelope, under the exclusive care and custody of UPS for overnight delivery service for deli very within the State of New York, to arrive on De<:embcr 22016. ' . cw,o. !Lc;.~o > Maria Vigario · Sworn to before me this /lfi17qe__ 101~ NOTARY PUBLIC MELISSA R. RENWICk NOJARY PUBLIC-STATE OF NEW YORK No. 02RE63 I ~482 Qualified In Kll)gs County, My Commission Explrea NOII8mber 10. 2018