Via v. Franco

Jan 25, 1996
Versions:223 A.D.2d 479
637 N.Y.S.2d 87
1996 N.Y. App. Div. LEXIS 576

Order, Supreme Court, New York County (Ira Gammerman, J.), entered on or about July 12, 1994, which granted petitioner’s application pursuant to CPLR article 78 to annul respondent’s determination denying petitioner succession rights to a public housing apartment as a remaining family member, unanimously affirmed, without costs.

Petitioner, who, together with her children, would be rendered homeless were respondent’s determination to be implemented, thereby putting her in the "zone of interests” intended to be protected by the regulations granting succession rights to remaining family members, has standing to bring this article 78 proceeding (see, Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9). Respondents waived their Statute of Limitations defense, having failed to raise it before the IAS Court (see, Harris v Armstrong, 64 NY2d 700, 702). On the merits, respondent’s application of its regulation prohibiting tenants from "doubling up” with "another family” was arbitrary and capricious. Given a definition of family as "[t]wo or more person[s] living together related by blood, marriage or adoption”, the original tenant who moved out, petitioner’s sister, is a member of the same family as petitioner, not another family. Accordingly, the written approval that was necessary for petitioner to move in with her sister as a permanent member of her sister’s family should not have been withheld. Concur—Murphy, P. J., Sullivan, Wallach, Kupferman and Ross, JJ.