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Decided on April 1, 2013
Supreme Court, Kings County

11235/12
Petitioner was represented by Martin S. Needelman, Esq., of Brooklyn Legal Services Corporation A, 256-260 Broadway, BKNY. Respondents NYCHA was represented by Seth Kramer, Esq., Of Counsel to New York City Housing Authority, 250 Broadway, NY, NY.
Genine D. Edwards, J.
Petitioner brings this Article 78 proceeding to reverse New York City Housing Authority's
("NYCHA") determination denying petitioner succession rights as a remaining family member to an

apartment leased to petitioner's grandmother. Petitioner asserts that the determination was arbitrary and capricious because it was based upon unreasonable occupancy rules authored by NYCHA. NYCHA submits an answer and memorandum of law in opposition to the petition. Petitioner submits a reply and memorandum of law.
FACTS
Petitioner's ailing grandmother lived alone in a one-bedroom apartment. Petitioner allegedly
moved into the apartment in February or March of 2009 to assist her grandmother. Petitioner's
mother, the grandmother's NYCHA representative, alleged that she verbally requested approval [*2]to add petitioner as an occupant of the apartment,[FN1] but the building manager instructed her to make the request at the time of the annual recertification process.
Petitioner's grandmother's June 2009 annual income affidavit indicated she lived alone. On July 17, 2009, petitioner's grandmother made a written request for that the development manager to grant permission to permanently allow petitioner to join her household. The development manager denied the request on October 28, 2009 because approval would have created an overcrowded apartment. See Order to Show Cause, Exhibit B. NYCHA's occupancy standards prohibit two adults who are neither married nor registered as domestic partners from living in a one-bedroom apartment. See Verified Petition, Exhibit A. However, a single adult with a child less than six years old may live in a one bedroom apartment. See id.
The record is silent on whether NYCHA informed petitioner's grandmother of the development manager's decision. Petitioner became aware of the denial on April 14, 2010, shortly after her grandmother died. Thereafter, NYCHA commenced a holdover proceeding against the petitioner. On March 1, 2011, the parties stipulated to provide petitioner with an opportunity to challenge the 2009 denial. Petitioner filed a remaining family member grievance on March 16, 2011. The grievance was denied by the project manager on March 18, 2011 because petitioner was not an authorized member of the household and she did not reside in the apartment at least one (1) year prior to her grandmother's death. See Verified Answer, Exhibit N. The borough director agreed with the disposition of the Project Manager, stating:
Grievant Jessica Figueroa, is not part of the original family composition, tenant of record did request permanent permission for her to join the household 7/14/09 but was denied because the approval would have created an overcrowded situation. I concur with the manager's decision.
Verified Answer, Exhibit P. Thereafter, a formal hearing was held before an Impartial Hearing Officer. The hearing officer determined that:
Even if the request for Grievant's residence had been properly submitted and
processed in 2/09, management could not, in view of NYCHA's occupancy standards, have approved an additional person in the subject one-bedroom apartment. Whether NYCHA's rules in this regard are inappropriate is not reviewable in this forum.
Order to Show Cause, Exhibit B, Decision from Impartial Hearing Officer, dated March 22,
2012.
The present Article 78 proceeding followed. Petitioner argues that NYCHA's occupancy standards, as they pertain to one-bedroom apartments, are arbitrary and capricious because they distinguish between two adults relatedby marriage or domestic partnership and two adults otherwise related. Petitioner also argues that strict adherence to the written permission requirement for remaining family member status is arbitrary and capricious. NYCHA argues that petitioner's claim is barred by the statute of limitations and petitioner lacks standing because only a tenant of record may challenge a determination denying permanent occupancy. NYCHA also argues that it did not violate petitioner's rights under the New York State Human Rights [*3]Law because the Court of Appeals has ruled that this law only precludes distinctions between married and single status. See Respondent's Memorandum of Law in Support of its Verified Answer, pg. 2.

ANALYSIS
Petitioner has standing to commence this proceeding. Indeed, there is evidence
that she resided in the subject premises and would be severely affected by NYCHA's determination. See Dairylea Cooperative, Inc. v. Walkley, 38 NY2d 6, 377 N.Y.S.2d 451 (1975) (Petitioner need only show that the agency's action will have a harmful effect on petitioner and the interest asserted is within the zone of interest to be protected by the statute.); Matter of Valentin v. NYC Hous. Auth., 72 AD3d 486, 898 N.Y.S.2d 130 (1st Dept. 2010) (Having lived with the tenant, the petitioner has standing to bring the Article 78 proceeding.); Via v. Franco, 223 AD2d 479, 637 N.Y.S.2d 87 (1st Dept. 1996).
The four-month statute of limitations has not expired. In order for the statute of limitations to be triggered, an agency's determination must be final and binding, giving notice to the petitioner that all administrative remedies have been exhausted, thereby aggrieving the petitioner. See Carter
v. State, 95 NY2d 267, 716 N.Y.S.2d 364 (2000); Edmead v. McGuire, 67 NY2d 714, 499 N.Y.S.2d 934 (1986); Clinton v. Bayview Houses/NYCHA, 25 Misc 3d 1222(A), 906 N.Y.S.2d 771 (Sup. Ct., Kings County 2009); Williams v. NYC Hous. Auth., 8 Misc 3d 1009(A), 801 N.Y.S.2d 782 (Sup. Ct., Kings County 2005). But if the agency created an impression that the decision was not conclusive then the limitations period does not commence running. See id.
Petitioner's grandmother's July 2009 written request, entitled "permanent permission request for a family member/additional person to live with a development tenant," included the following: "NOTE TO TENANT . . . [i]f permanent permission is not granted (disapproved), you may request a grievance hearing to review the Development Manager's decision . . . ." Though the request was disapproved and executed by a housing assistant in July 2009 and by a manager in October 2009, NYCHA did not establish that it notified petitioner's grandmother that the request was disapproved. Moreover, the request form gave the impression that it was not conclusive and there were further administrative remedies to be had, namely a grievance hearing. As a result, the statute of limitations was not triggered. See Stephens v. NYC Hous. Auth., 293 AD2d 318, 739 N.Y.S.2d 719 (1st Dept. 2002); Mays-Watt v. Hernandez, 196 Misc 2d 56, 763 N.Y.S.2d 707 (Sup. Ct., Bronx County 2003) (The tenant did not feel an unambiguously final impact from the 1998 administrative decision until the 2002 denial of her application for succession rights. It is at such time that the statute of limitations began to run.).
With respect to the hearing officer's determination, it is well established law that judicial review of an agency's determination is limited to whether the determination was arbitrary and capricious or an abuse of discretion or made in violation of a lawful procedure or was affected by an error of law. See CPLR

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