In the Matter of Jonas Aponte, Respondent,v.Shola Olatoye,, et al., Appellants.BriefN.Y.January 3, 2018To Be Argued By: Jane E. Lippman L ' APL-20 16-00130 STATE OF 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. REPLY 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 1 0007 Tel: (212) 776-5259 Fax: (212) 776-5404 J ane.Lippman@nycha.nyc.gov Attorneys for Respondents-Appellants Completion date: February 16, 2017 Reproduced ori recycled paper TABLE OF CONTENTS PRELIMINARY STATEMENT .......................................................................... ! I. NYCHA REASONABLY ACCOMMODATED MS. APONTE'S DISABILITY IN COMPLIANCE WITH THE DISABLITY LAWS ................................................. : ............ 7 A. Ms. Aponte Received The Reasonable Accommodation Required By Law Because Respondent Lived With Her ................ 7 · B. Respondent's Claim Temporary Permission Was An Insufficient Accommodation Lacks Merit... ............................ 10 II. RESPONDENT WAS NOT ENTITLED TO REMAINING FAMILY MEMBER STATUS BECAUSE NYCHA RATIONALLY DENIED MS. APONTE'S PERMANENT PERMISSION REQUEST BASED ON ITS OCCUPANCY STANDARDS .............. : ..................... l7 A. NYCHA Rationally Denied Respondent's Remaining Family Member Grievance Based On His Lack Of Permanent Permission .................................................................... 17 B. Respondent Was Not Entitled To Permanent Permission Based On The Occupancy Standards .......................... 20 CONCLUSION ..... ~ .................................... : ....................................................... 25 TABLE OF AUTHORITIES Page(s) Federal Cases Dean v. University at Buffalo Sch. of Med. & Biomedical Sciences, 804 F.3d 178 (2d Cir. 2015) ................................................................................. 8 Loeffler v. Staten Island Univ. Hasp., 582 F .3d 268 (2d Cir. 2009) ............................................................................... 16 McElwee v. County of Orange,. 700 F.3d 63 (2d Cir. 2012) ................................................................................... 8 Noll v. IBM, 787 F.3d 89 (2d Cir. 2015) ............................................................. ····:··········· 8, 14 Salute v. Stratford Greens Garden Apts., 136 F.3d 293 (2d Cir. 1998) ............................................................................... 12 Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307 (E.D.N.Y. 2012) ............................................................... 13 US Airways, Inc. v. Barnett, 535 u.s. 391 (2002) ........................................................................................... 12 State Cases Braschi v. Stahl Associates Co., 74 N.Y.2d 201 (1989) ................................................................................... 19, 20 Dunn v. Fishbein, 123 A.D.2d 659 (2d Dep't 1986) ....................................................................... 16 Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824 (2014) ......................................................................................... 14 11 Page(s) State Cases (continued) Matter of Andrade v. New Yo~k City Hous. Auth., 132 A.D.3d 598 (1st Dep't 2015) ....................................................................... 18 Matter of Dancil v. New York City Hous. Auth., 123 A.D.3d 442 (1st Dep't 2014) .................................. : .................................... 18 Matter of Lindsay Park Hous. Corp. v. New York State Div. of Human Rights, 56 A.D.3d 477 (2d Dep't 2008) ......................................................................... 10 Matter Mallay v. New York City Hous. Auth., 117 A.D.3d 597, 597 (1st Dep't 2014) ............................................................... 23 Matter of Ortiz v. Rhea, 127 A.D.3d 665 (1st Dep't 2015) ....................................................................... 17 ·Matter of Po So v. Rhea, 106 A.D.3d 487 (1stDep't 2013) ............................................................. 9, 15, 16 Matter of Rentas v. New York City Hous. Auth., Index No. 401734/08, 2009 N.Y. Misc. LEXIS 3725 (Sup. Ct. N.Y. Co. Jan. 12, 2009) ...................................................................... 24 Reconstruction Home & Health Care Ctr., Inc. v. Daines, 65 A.D.3d 786 (3d Dep't 2009) ................................................................... 19 n.3 Town of Greenville v. N. Y State Bd. of Real Prop. Servs., 251 A.D.2d 788 (3d Dep't 1998) ...................................................... : ....... : .. 19 n.3 Federal Statutes and Regulations 24 C.F.R. § 966.4 ................................................................................................ 20 29 C.P.R. § 1630 app ............................................................................................. 8 111 Page(s) State and Local Statutes and Regulations 9 NYCRR § 2100.9 ............................................................................................ 20 Other Authorities 33 Warren's Weed New York Real Property §33.27 ................................... 22 n.4 IV Respondents-Appellants Shola Olatoye, as Chair of the New York City Housing Authority ("NYCHA"), and NYCHA (collectively, "Appellants") submit this Brief in reply to the Brief for Petitioner-Respondent Jonas Aponte ("Respondent"), and in further support of their appeal. PRELIMINARY STATEMENT Respondent does not dispute he lived with and cared for Ms. Aponte, as she had requested, until she died. Respondent conceded below that temporarily permitting a caregiver to reside with a tenant is a reasonable accommodation, and the dissent, which Respondent never mentions much less critiques, found Respondent had de facto temporary permission here. Before this Court, Respondent posits five reasons temporary permission is alternately a "partial" accommodation or "no accommodation at all." Each of them lacks merit. First, Respondent argues temporary permission only is a "partial" accommodation because, although Ms. Aponte received the care she requested, Respondent was not eligible to succeed to her public housing apartment as he may have been had NYCHA permitted him to reside with Ms. Aponte permanently. As NYCHA established in its opening brief and Respondent does not dispute, a reasonable accommodation affo:ds a person with a disability access to equal housing opportunity by directly ameliorating the effect of the disability. Respondent has not explaine'tl how lease succession rights for him, which Respondent concedes could not even vest until after Ms. Aponte's death, could have accommodated her disability. Respondent's care for Ms. Aponte was not contingent on lease succession rights; indeed, he moved into the apartment before Ms. Aponte ever requested permission for his occupancy, did not know when Ms. Aponte subsequently requested permission, and remained in the apartment even after NYCHA denied permanent permission for him to reside there. Second, Respondent hypothesizes it would have been onerous for Ms. Aponte, limited by dementia, to submit fom1s to renew temporary permission for Respondent's occupancy as allegedly required by NYCHA policy. There is no need to resort to a hypothetical; in actuality; Respondent lived with Ms. Aponte until she died without submitting an annual application, explanation of continuing medical need, or any documentation at all justifying Respondent's temporary occupancy. Under NYCHA's policy, temporary permission for caregivers renews automatically. Even if documentation were required to renew temporary permission, Respondent or his sister could have assisted Ms. Aponte, just as they would need to do in completing the more complex annual income recertification required of all tenants. Third, .Respondent argues de facto temporary permission was insufficient because NYCHA failed to show it was an undue burden to grant permanent permission and potential succession rights. NYCHA was not required to establish 2 the defense of undue burden because Respondent did not establish a prima facie case of disability discrimination inasmuch as Ms. Aponte received an accommodation that afforded her equal opportunity to use and enjoy her apartment. As NYCHA also established in its opening brief and Respondent does not dispute, a person with a disability is not entitled to the accommodation of her preference so long as the accommodation provided, like de facto temporary permission here, effectively addresses the hardship created by her disability. Fourth, Respondent claims he ·is entitled to the apartment because NYCHA did not engage in an interactive process in determining a reasonable accommodation for Ms. Aponte. As established .in NYCHA's opening brief, however, any failure to fully engage in the interactive process does not give rise to liability when, as here, a reasonable accommodation was nonetheless provided. Fifth, Respondent alleges temporary permission is insufficient because Ms. Aponte's disability was a permanent condition. The fact thattemporary permission as an exception to NYCHA's policy against overcrowding may extend for a long time does not detract from its effectiveness as a reasonable accommodation. In addition, temporary permission is appropriate because a disabled tenant requiring live-in care may have various caregivers over a period of years as demonstrated by Ms. Aponte's reliance on an unrelated home health aide before Respondent moved in. · 3 In its opening brief, NYCHA established it rationally denied Respondent's remaining-family-member grievance because he did not lawfully enter Ms. Aponte's apartment with the permanent permission of development management (or, indeed, with any permission at all). 1 Remaining-family-member status is a narrow exception to NYCHA's Tenant Selection and Assignment Plan by which NYCHA allocates its limited supply of affordable apartments between existing families and those on the waiting list for public housing. NYCHA also showed it rationally denied -permanent permission because it would have caused overcrowding, a condition public housing was specifically created to remedy. Instead, Respondent had de facto temporary permission, enabling him to live in the apartment without his income factored into the household's income-based rent. The trial court and dissent both agreed NYCHA had established a rational basis for its determinations. Although Respondent acknowledges NYCHA has discretion to weigh competing goals, he argues NYCHA's policies are not rational. Respondent is incorrect. In particular, Respondent argues it is irrational for apartment size to 1 Respondent fails to respond to, and therefore effectively concedes, Appellants' argument that NYCHA did not implicitly consent to Respondent's permanent residence in Ms. Aponte's apartment. See Brief of Respondents-Appellants ("NYCHA Br.") at 50-55. A majority of the First Dep"rtment erroneously held in its Decision and Order (the "Order") that NYCHA implicitly consented to Respondent's permanent residence in the apartment. See Record on Appeal ("R") 11-12. The dissent disagreed and found that NYCHA's knowledge of Respondent's residence in the apartment did not warrant awarding him succession rights. SeeR 19-20. 4 dictate succession rights inasmuch as he would have been entitled to succession rights if only Ms. Aponte had lived in a two-bedroom apartment. Respondent conflates two separate determinations raising distinct issues, posed at different times, with answers yielding different consequences. NYCHA denied Respondent remaining-family-member status because he was never a permanent authorized occupant of the household and his income therefore was not included in calculating the rent. Whether an apartment is overcrowded relates to the threshold question of whether NYCHA should grant permanent permission for a new household member, and it is rational for NYCHA to limit the number of permanent occupants based on the apartment size. Lease succession is not the goal of a permanent permission request and it is only speculative that permanent permission ultimately may result in succession rights as the newly added household member may vacate the apartment before the tenant moves out or dies or may not satisfy other qualifications for succession rights. Respondent also claims NYCHA's refusal to grant him permanent permission is not rational because there is no clear nexus between denying permanent permission and preventing overcrowding inasmuch as NYCHA grants temporary permission even when it results in overcrowding. Temporary permission is an example of a reasonable accommodation where NYCHA departs from policy. Respondent cannot have it both ways; faulting NYCHA for allegedly 5 • strictly adhering to policy and exercising flexibility in providing a reasonable accommodation. Finally, contrary to Respondent's assertion, NYCHA's policies on permanent permission and succession do not "impose a price" on those seeking reasonable accommodations or unfairly target those with disabilities. A caregiver is not entitled to a lease in exchange for assisting a sick or disabled relative. Far from imposing a price, NYCHA does not include a temporary occupant's income when calculating the tenant's rent. NYCHA grants permanent permission to those providing care if it does not result in overcrowding, and otherwise permits temporary occupancy as an accommodation tailored to the needs of individuals with disabilities. Petitioner's assertion NYCHA cannot exempt groups from succession is incorrect; NYCHA does not allow home care attendants, foster children, or individuals that do not fall into the specified eligible familial categories to obtain permanent permission with the opportunity to succeed. For these reasons discussed more fully below and those discussed in Appellants' opening brief, the Order should be reversed . 6 POINT I NYCHA REASONABLY ACCOMMODATED MS. APONTE'S DISABILITY IN COMPLIANCE WITH THE DISABILITY LAWS A. Ms. Aponte Received The Reasonable Accommodation Required By Law Because Respondent Lived With Her. As discussed in its opening brief, NYCHA is required to provide an accommodation that affords a disabled tenant equal opportunity to use and enjoy her apartment as non-disabled tenants. See Brief of Respondents-Appellants ("NYCHA Br.") at 34-43. Inasmuch as it is undisputed Ms. Aponte received Respondent's care in the apartment until her passing, Respondent cannot establish she did not receive the reasonable accommodation required by law. NYCHA policy states management shall deny permanent residency permission when the increase in family size would create overcrowding in the apartment, as defined in the Tenant Selection and Assignment Plan. See Record on Appeal ("R") 121 at XI.B.2.a.(3).(d). In compliance with its duty to reasonably accommodate a disabled tenant, NYCHA policy specifically contemplates that a disabled tenant may require a full-time caregiver to live in the apartment and provides for temporary residency permission even where the caregiver's occupancy would cause overcrowding. SeeR 125 at XI.B.3:a.(5); R 126 at XLB.3.a.(7). Whereas most temporary residents may only reside in the apartment for a maximum of one year, the Housing Manager may automatically renew 7 temporary residency permission during the duration of the home attendant's service. See id. The phrase "home attendant" is intentionally broad and includes whoever might act as a caregiver, whether a professional home health aide or a family member or friend. Respondent's temporary residence in the apartment satisfied Ms. Aponte's need for full-time care and assistance, accommodated her disability, and afforded her an equal opportunity to use and enjoy her apartment. It is well-established "[t]he hallmark of a reasonable accommodation is effectiveness." Deanv. University at Buffalo Sch. of Med. & Biomedical Sciences, 804 F.3d 178, 189 (2d Cir. 2015) (citing US. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002)). A disabled individual is not entitled to the accommodation of her choice, so long as the accommodation ameliorates the disability and is therefore effective. See 29 C.F.R. § 1630 app. (under the ADA, ~'[T]he 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."); Noll v. IBM, 787 F.3d 89, 95 (2d Cir. 2015) (under the ADA and the New York State Human Rights Law, . "employers are not required to provide a perfect accommodation or the very accommodation most strongly preferred by the employee."); McElwee v. County of Orange, 700 F.3d 635, 641 (2d Cir. 2012) ("Although a public entity must make 8 'reasonable accommodations,' it does not have to provide a disabled individual with every accommodation he requests or the accommodation of his choice."). It is for these reasons that in Matter of Po So v. Rhea, 106 A.D.3d 487 (I st Dep't 2013), the Appellate Division, First Department upheld NYCHA's determination denying permanent permission based on the occupancy standards and held temporary permission for the tenant's adult daughter to provide care reasonably accommodated the tenant's disability. Respondent provides two inapposite examples of policy exceptions from the U.S. Department of Housing and Urban Development ("HUD"), where the requested accommodations, a seeing · eye dog for a blind tenant and a parking space close to a mobility impaired tenant's apartment, were necessary to afford equal opportunity to use and enjoy the disabled tenants' dwellings. See Brief of Petitioner-Respondent ("Resp. Br.") at 24. In light of the showing of need for those specific accommodations, the landlords in these examples were required to make exceptions to. their housing policies. Unlike the landlords in the HUD examples, however, NYCHA already has an exception to its occupancy standards for caregivers in the form of temporary residency, and that temporary residency provides the necessary accommodation. SeeR 126 at XI.B.3.a.(7). The specific accommodation Ms. Aponte needed, like the seeing eye ·dog or parking space, was for Respondent to live with and care for her, and Ms. Aponte received that accommodation. 9 B. Respondent's Claim Temporary Permission Was An Insufficient Accommodation Lacks Merit. Respondent conceded in her papers below that allowing Respondent to Jive with Ms. Aponte was a reasonable accommodation option. SeeR 486 at~ 28; see also R 472 at~ 28. Nevertheless, Respondent now claims that temporary permission either provides only a "partial" accommodation or provides "no accommodation at all." See Resp. Br. at 5, 28. Respondent makes five arguments in support of this new contention, none of which has merit. First, Respondent contends ifNYCHA granted the requested accommodation, he "would have received permission to live legally in the apartment and succeed to it upon his mother's death." Resp. Br. at 21. Respondent, however, concedes that permanent residency would have benefited him, rather than Ms. Aponte. See id. Respondent even acknowledges that his right to succeed to the apartment is "a benefit that would only vest after Ms. Aponte's death." !d. at 36. A disabled tenant cannot claim disability discrimination premised on the denial of benefits to the disabled tenant's caregiver. See Matter of Lindsay Park Housing Corp. v. New York State Div. of Human Rights, 56 A.D. 3d 4 77, 4 77 (2d Dep't 2008) (finding no denial of a reasonable accommodation where the disabled tenant was denied a parking space for her caregivers). It is also noteworthy that Respondent moved into the apartment in mid-2009 without any permission at all (seeR 259: 14-17) and was still able to care for Ms. Aponte in the 10 absence of any permission request. Respondent 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. SeeR 255:10-257:3. Thus, Respondent effectively cared for Ms. Aponte in the absence of any residency permission or even knowledge of a permission request, thereby further refuting Respondent's argument that his permanent residency was a "necessary accommodation in order to [sic] her remain in her apartment." Resp. Br. at 17. Second, Respondent contends temporary permission was insufficient because Ms. Aponte's dementia prevented her from reapplying for temporary permission every year. See Resp. Br. at 27. However, there was no need for Ms. Aponte to reapply for temporary permission every year. Individuals who provide full- or part-time care to a NYCHA 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). Even if NYCHA would have needed to receive documents to renew temporary permission, Respondent could have completed and submitted those documents on behalf of Ms. Aponte? Renewing a temporary permission request on an annual basis 2 As Appellants explained in their opening brief (see NYCHA Br. at 29-30), NYCHA denied a second permanent permission request on the threshold basis the request was not signed by Ms. Aponte. NYCHA concedes that the grounds for this denial were in error in light of Ms. Aponte's disability but emphasizes that had management reached the merits of the permission request, it would have denied it under the Occupancy Standards, the same reason it denied Ms. Aponte's first request made six months earlier. 1 1 certainly is not more burdensome than complying with the Housing Authority's annual recertification requirement, which the record shows Ms. Aponte was· capable of doing. SeeR 158-67. Third, Respondent maintains that NYCHA was required to set forth an undue burden defense before denying Respondent permanent residency permission. Contrary to Respondent's suggestion, NYCHA clearly stated in its opening brief that it is not asserting and does not need to assert an undue burden defense because it provided Ms. Aponte with a reasonable accommodation, although it may not have been the specific accommodation requested. See NYCHA Br. at 38 n.4. Because Respondent's temporary residency afforded Ms. Aponte an equal opportunity to use and enjoy her apartment, Respondent cannot make a prima facie case of disability discrimination and there was no need for NYCHA to raise an undue burden defense. See US Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002) (under the ADA, an employee must first show that an. accommodation is reasonable before the employer may show circumstances that demonstrate undue hardship on the employer's operations); Salute v. Stratford Greens Garden Apts., 136 F.3d 293, 300 (2d Cir. 1998) ("[l]fthe reasonable accommodations provision is triggered, a defendant can be required to incur "reasonable costs" to accommodate a plaintiffs handicap, "provided such accommodations do not pose an undue hardship or a substantial burden.") (citing 12 Shapiro v. Cadman Towers, Inc., 51 F.3d 328,335 (2d Cir. 1995)); Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 336 (E.D.N.Y. 2012) (to state a prima facie case of failure to reasonably accommodate a disabled tenant, a plaintiff must demonstrate, inter alia, that accommodation of the handicap is necessary to afford an equal opportunity to use and enjoying housing, and the defendant refused to make the accommodation). Respondent acknowledges this burden-shifting framework in stating, "Once a claimant has made a prima facie showing of disability discrimination, the burden shifts to the covered entity to show that the requested accommodation would impose an undue hardship or burden." Resp. Br. at 22. Nevertheless, Respondent puts the proverbial cart before the ,horse and faults NYCHA for failing to identify an undue burden. See id. at 22-25. Fourth, Respondent argued NYCHA cannot rely on his temporary residency because NYCHA did not engage in an interactive process. See Resp. Br. at 17-18. NYCHA conceded in its opening brief that its interactive process could have been better implemented here. See NYCHA Br. at 47. However, as long as a disability is reasonably accommodated, the failure to fully engage in the interactive process does not give rise to liability, let alone a benefit unrelated to the tenant's disability. "[T]he ADA imposes no liability for an employer's failure to explore alternative accommodations when the accommodations provided to the employee were plainly ~ reasonable ... the interactive process is not required when the end it is designed to 13 serve- reasonable accommodation- has already been achieved." Noll, 787 F .3d at 98;,cf Jacobsen v. New York City Health & Hasps. Corp., 22 N.Y.3d 824, 838 (2014) (rejecting the proposition that the failure to engage in the interactive process automatically compels judgment for the employee and emphasizing the respective burden of the plaintiff to "prov[e] the existence ofa reasonable accommodation that would have enabled the employee to perform the essential functions of his or her position.") (citations omitted). Fifth, Respondent argues that a permanent disability requires NYCHA to grant a caregiver permanent, not temporary, residency permission. See Resp. Br. at 28. Respondent mischaracterizes the law. NYCHA's Management Manual states management shall deny permanent permission where the additional occupant would cause overcrowding, but management may grant temporary permission for a caregiver to enter the apartment despite overcrowding. The fact that temporary ·permission as an exception to NYCHA's policy against overcrowding may extend for a long time does not detract from its effectiveness as a reasonable accommodation. There is no time limitation on the requirement to reasonably accommodate a disabled tenant. Thus, when a tenant or authorized family member requires a caregiver to live in the apartment, NYCHA confers temporary residency permission for the duration of the disability, whether three years or three months or whatever period of time is needed. In addition, although the disability may be 14 permanent, temporary permission for a caregiver is rational because a disabled tenant requiring live-in care might have any number of caregivers over a period of years, both family members and professional home health aides. In fact, Respondent's sister testified at the administrative hearing that a home health aide also cared for Ms. Aponte. SeeR 265:24-266:4. There is nothing inappropriate or illegal about NYCHA providing temporary permission to caregivers for the duration of their services, rather than for the duration of the tenant's condition, inasmuch as a caregiver may be replaced by another qualified individual, family member, or home attendant. Respondent attempts to distinguish Po So, 106 A.D.3d 487, on the ground the tenant's arthritis in Po So was purportedly temporary, whereas Ms. Aponte suffered from dementia. See Resp. Br. at 29. The Appellate Division, First Department's decision in Po So did not describe the nature of the tenant's disability, although the Court noted the tenant "requir[ ed] essentially 24-hour care" and the tenant's pleadings stated she was 81-years old and her arthritis prevented her from walking, using her left hand, and getting outofbed. Ms. Aponte's need for a caregiver was no different from the needs of the tenant in Po So. The Appellate Division considered the unlimited duration of temporary permission in Po So and nevertheless upheld NYCHA's determination. See Po So, 106 A.D.3d 15 at 488 (noting the tenant's adult daughter could continue residing in the apartment "as long as petitioner requires her assistance"). Finally, because Respondent's temporary residence in the apartment satisfied NYCHA's duty to reasonably accommodate Ms. Aponte's disability, Respondent does not have standing to claim associational discrimination. Respondent's contention that the denial of succession rights through the denial of permanent residency permission confers standing on him (see Resp. Br. at 21) presupposes that Ms. Aponte was denied a reasonable accommodation. She was not. In the absence of any discrimination against Ms. Aponte, Respondent has suffered no actionable legal injury. Cf 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 "fie ]11 within a zone of interest which [the New York State Human Rights Law] protects."); 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 Rehabilitation Act claims because their injuries were independent of their parents' injuries). 16 POINl'II RESPONDENT WAS NOT ENTITLED TO REMAINING FAMILY MEMBER STATUS BECAUSE NYCHA RATIONALLY DENIED MS. APONTE'S PERMANENT PERMISSION REQUEST BASED ON ITS OCCUPANCY STANDARDS. A. NYCHA Rationally Denied Respondent's Remaining Family Member Grievimce Based On His Lack Of Permanent Permission. NYCHA denied Respondent's remaining family member grievance because he did not receive permanent permission to enter Ms. Aponte's household before she died. SeeR 452. Respondent's temporary residency as Ms. Aponte's caregiver did not entitle him to succession rights. SeeR 124 at XI.B.3.a.(3); R 128 at XI.B.3.a.(3).g; Matter of Ortiz v. Rhea, 127 AD.3d 665, 666 (1st Dep't 2015) ("[t)he only written consent petitioner ever acquired to occupy the apartment was as a temporary resident, which did not qualifY her for RFM status"). NYCHA's policy of awarding succession rights to occupants who receive permanent permission, and whose income is included in the rent calculation, and not to temporary residents, whose income is excluded, rationally balances the interests of family members in succeeding to a tenancy against those of the families on the public housing waiting list. As Respondent recognizes, NYCHA has discretion to balance competing policy interests. See Resp. Br. at 39. Respondent contends NYCHA irrationally denied succession rights based on the size of Ms. Aponte's apartment, and he would have succeeded to her tenancy if 17 she lived in a two-bedroom apartment. See Resp. Br. at 39-40. Respondent's argument conflates two separate determinations made by NYCHA years apart from each other involving different issues with different ramifications. NYCHA issued a determination denying Respondent's remaining family member grievance in December 2013 because he never received permanent permission. SeeR 452. Inasmuch as his status as a temporary occupant meant NYCHA did not use his income in calculating Ms. Aponte's rent, allowing him to succeed to Ms. Aponte's tenancy would provide him with a windfall at the expense of the hundreds of thousands of families on NYCHA's waiting list. Although Respondent maintains the apartment is "his family home" (see Resp. Br. at 13), public housing apartments cannot be bequeathed. See Matter of Andrade v. New York City Hous. Auth., 132 A.D.3d 598, 598 (1st Dep't 2015) ("Petitioner may not 'inherit' the public housing apartment"); Matter ofDancil v. New York City Hous .. Auth., 123 A.D.3d 442, 442 (1st Dep't 2014) ("since public housing apartments are not private property, the tenant of record could not bequeath or transfer the apartment to petitioner."); The size of the apartment was not a factorin that determination, but instead provided the basis for NYCHA's September 2010 determination denying permanent permission based on overcrowding. SeeR 212. It is rational for NYCHA to consider the apartment size in determining how many permanent 18 occupants may reside in an apartment.3 NYCHA does not consider succession rights when it responds to a permanent permission request because it is not certain that the proposed additional occupant would remain in the household so as to potentially qualify for remaining-family-member status or that he will satisfy other qualifications for succession rights. Respondent's claim he would have succeeded to Ms. Aponte's tenancy ifthere were two bedrooms in the apartment also is speculative because, in the event a reduction in household size creates an underoccupied apartment, NYCHA requires the tenant or family to transfer to an appropriate size apartment. SeeR 129 XI.C.8; see also R 147(incorporating the requirement to downsize in the tenant's lease). Thus, if Ms .. Aponte had resided in a two-bedroom apartment by herself, NYCHA could have required her to transfer to a one-bedroom apartment, resulting in the same denial of permanent residency permission to Respondent. Respondent's reliance on Braschi v. Stahl Associates Co., 74 N.Y.2d 201 (1989), in support of his argument "succession is a routine part ofNYCHA's own 3 Respondent notes the New York City Department of Housing Preservation and Development ("HPD"), unlike NYCHA, considers a one-bedroom apartment suitable for an adult mother residing with her adult son. See Resp. Br. at 23 n.5. NYCHA, however, is not required to follow the occupancy standards ofHPD, which administers a Section 8 program and unlike NYCHA, is not a public housing landlord. Cf Reconstruction Home & Health Care Ctr., Inc. v. Daines, 65 A.D.3d 786, 788 (3d Dep't 2009) ("[W]hile the Department opted to revisit the issue and ultimately came up with an alternative methodology which favored petitioner (but disfavored other facilities), no showing has been made that the original methodology was irrational or in contravention of the broad statutory directive."); Town of Greenville v. NY. State Bd. of Real Prop. Servs., 251 A.D.2d 788, 789 (3d Dep't 1998) ("While petitioner has advanced an alternative methodology, it has not shown that respondent's methodology was inadequate, which is the determinative issue."). 19 regulatory scheme" is misguided. See Resp. Br. at 38. As Respondent acknowledges, Braschi concerned succession rights to a rent-controlled apartment in accordance with State law (see Braschi, 74 N.Y.2d at 208), whereas this matter concerns succession rights to a federally-subsidized apartment in accordance with HUD regulations and NYCHA policies. New York's rent control statute does not govern "[h]ousing accommodations owned and operated ... by a municipal or public authority." 9 NYCRR § 21 00.9(a). Unlike residents of rent-regulated apartments who do not need to seek permission before adding someone to a household, residents of public housing authorities must obtain management's permission to permanently add someone to their family composition. See 24 C.P.R.§ 966.4(a)(l)(v). Braschi certainly does not stand for the proposition that NYCHA must adopt the same rules as rent-regulated apartments or open the succession floodgates to anyone who has co-resided with a public housing tenant. Accordingly, NYCHA's determination Respondent does not qualify as a remaining family member is rational. B. Respondent Was Not Entitled To Permanent Permission Based On The Occupancy Standards. As discussed in greater detail in Appellants' opening brief, management properly denied Ms. Aponte's permanent permission request to add Respondent to the household because it would have resulted in overcrowding. See NYCHA Br. at 30-31. Respondent asserts "at the administrative hearing, NYCHA was required to 20 • show that its interest in preventing overcrowding rationally justified its denial of Ms. Aponte's request to permanently add her son to her household, and its subsequent denial of Mr. Aponte's remaining family member grievance" and concludes NYCHA therefore has improperly provided post-hoc justifications for its determination. Resp. Br. at 33. Respondent's claim lacks merit because, although NYCHA explained at the hearing it denied permanent permission based on the occupancy standards (seeR 273 :6-17), at no time during the hearing did Respondent challenge the rationality of this policy. The burden at the hearing was on Respondent to explain why he believed he was entitled to remaining family .. member status, not on NYCHA to explain the unchallenged rationale underlying NYCHA's policies to the Hearing Officer. SeeR 134 at XII.C.2; R 174-75 at Subdivision A, ~ 10. When Respondent belatedly argued in this Article 78 ·proceeding that NYCHA's policy is not rational, NYCHA was entitled to respond. NYCHA's Management Manual provides management may grant temporary permission despite overcrowding, but temporary permission does not result in succession rights. See id at 28-29; R 124 at XI.B.3.a.(3); R 128 at XI.B.3.a.(3).g. Respondent argues NYCHA should have transferred Ms. Aponte to a larger apartment instead of denying permanent permission (see Resp. Br. at 37), but NYCHA has the discretion to allocate its limited supply of larger apartments to new applicant families and current families who need larger apartments because of 21 family growth instead of allowing existing tenants to transfer to larger apartments to add adult family members to the household. See NYCHA Br. at 32. Respondent, in an effort to draw this Court's attention from his own inability to establish a clear nexus between his mother's disability and his own desire to succeed to her lease, claims NYCHA cannot show a "rational connection" between denying permanent permission and its goal of preventing overcrowding. See Resp. Br. at 35. To the contrary, by allowing individuals to obtain temporary permission even if their occupancy creates an overcrowded condition, NYCHA balances its policy objectives of discouraging overcrowding and properly allocating its scarce resources while simultaneously accommodating its disabled tenants. NYCHA's policy of conferring temporary permission to caregivers such as Respondent, notwithstanding its occupancy standards, is not inconsistent with its legitimate goal of avoiding overcrowding. Although Respondent is correct that "[t]he resulting overcrowding would not be any less if Mr. Aponte were a temporary rather than a permanent household member" (Resp. Br. at 36), NYCHA is entitled to tolerate overcrowding in limited circumstances.4 This Court should not penalize NYCHA for allowing a caregiver to overcrowd an apartment for a particular time period by requiring it to grant the caregiver additional rights. While 4 NYCHA's tolerance for limited overcrowding may be analogized to time limits on subletting on apartment, which are "not uncommon." 4-33 Warren's Weed New York Real Property §33.27. 22 NYCHA optimally would never permit tenants to reside in an overcrowded apartment, its temporary permission policy is an exception to the occupancy standards designed to accommodate tenants such as Ms. Aponte. Indeed, Respondent complains NYCHA strictly adheres to its policies (see Resp. Br. at 3), but then Respondent makes the contradictory claim that NYCHA's flexibility in enforcing its occupancy standards to allow temporary permission as a reasonable accommodation renders its determination irrational.5 Contrary to Respondent's assertions, NYCHA's denial of permanent permission (and the associated possibility of succession) based on its occupancy standards does not "impose a price" on those seeking reasonable accommodations or discourage reasonable accommodations. See Resp. Br. at 37. NYCHA did not treat Respondent worse because he was a caregiver inasmuch as he, like any other child of a tenant, would have been entitled to permanent permission if his occupancy did not cause overcrowding. Moreover, NYCHA does not only deny permanent permission to family members when it results in overcrowding, but NYCHA also distinguishes between various familial relationships in determining who may receive permanent permission. SeeR 118 at XI.B.l.a.(2); Matter of Mallay v. New York City Hous. Auth., 117 A.D.3d 597, 597 (1st Dep't 2014) 5 NYCHA's temporary permission policy is not without limits; temporary permission may not be granted if it would render an apartment "extremely overcrowded." SeeR 125 at XI(B)(3)(a)(5). 23 ("[A]lthough petitioner testified that he and the tenant ... were domestic partners, he proffered no evidence that they registered the partnership, and hence, their relationship 'is not within the Housing Authority's category of immediate relatives who are able to obtain permanent permission to occupy an apartment and succeed to a deceased tenant's lease[.]':') (citing Hawthorne v. New York City Hous. Auth., 81 A.D.3d 420,421 (1st Dep't2011)); Matter of Rentas v. New York CityHous. Auth., Index No. 401734/08, 2009 N.Y. Misc. LEXIS 3725, at *5 (Sup. Ct. N.Y. Co. Jan. 12, 2009) (Feinman, J.) (upholding dismissal of grievance based in part because "the category of 'aunt' is not one of those allowed under the Housing Authority regulations as an additional member"). No authority entitles a caregiver to be rewarded with a lease in exchange for assisting a sick or disabled relative. If anything, the fact NYCHA does not include· a temporary occupant's income when calculating the tenant's rent demonstrates NYCHA, not Respondent, is the one that pays an actual financial price for awarding temporary permission. Thus, NYCHA properly relied on its occupancy standards to deny Respondent permanent permission to join Ms. Aponte's household. 24 CONCLUSION Based on the foregoing discussion, 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 February 16, 2017 Donna M. Murphy Jane E. Lippman Nancy M. Harnett Seth E . Kramer Of Counsel DAVID FARBER General Counsel New York City Housing Authority By Jane E. Lippman, Of unsel 250 Broadway, 9th Floor New York, NY 10007 25 (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 Rornan 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 5,608. I have relied on the word count provided by Microsoft Word. Dated: New York, NY February 16,2017 ~E.&~ Jane E. Lippman, Of Counsel AFFIDA VII 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 February 16, 2017, I served the within Repty Brief of Respondents~Appellants upon: Leah Goodridge, Esq. Jeanette Zelbof, Esq. Michael Grinthal, Eq • .MFY Legal Services, Inc. 299 Broadway, 41b 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 delivery within the State of New York, to arrive on Febk 2017. , • . C<.L<..c. \~~et.M o · Sworn to before me this 161b day of February, 2017 NOT~C KIMBERLY WINGSUM WONG NOTARY PUBUC STATE or: '