Matter of Mitchner v. New York City Hous. Auth., Mitchell Houses , 998 N.Y.S.2d 627 ( 2015 )

Matter of Mitchner v New York City Hous. Auth., Mitchell Houses (2015 NY Slip Op 00633)

Matter of Mitchner v New York City Hous. Auth., Mitchell Houses

2015 NY Slip Op 00633

Decided on January 26, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 26, 2015
Tom, J.P., Acosta, Saxe, Moskowitz, Feinman, JJ.

14042 402099/12

[*1] In re Melissa T. Mitchner, Petitioner,

v

New York City Housing Authority, Mitchell Houses, Respondent.

Melissa T. Mitchner, petitioner pro se.

David I. Farber, New York (Andrew M. Lupin of counsel), for respondent.

Determination of respondent New York City Housing Authority (NYCHA), dated July 25, 2012, which denied petitioner's grievance seeking succession rights as a remaining family member to the tenancy of her late grandmother, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Alexander W. Hunter, Jr., J.], entered February 11, 2013), dismissed, without costs.

Substantial evidence supports respondent's determination that petitioner is not entitled to succession rights as a remaining family member (see generally 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180-182 [1978]). Petitioner's occupancy during the relevant period was not pursuant to NYCHA's written authority and was not reflected in

the affidavits of income (see Matter of Adler v New York City Hous. Auth., 95 AD3d 694, 695 [1st Dept 2012], lv denied 20 NY3d 1053 [2013]). Petitioner's claimed lack of awareness that her income had not been reported does not warrant a different result (see Johnson v State of New York Div. of Hous. & Community Renewal, 213 AD2d 345 [1st Dept 1995]).

Petitioner's prior, authorized occupancy was terminated in 2005 upon her grandmother's submission of a Notice of Intent to Vacate and supporting notarized letter which reflected that petitioner had left the household. As the head of the household and tenant of record, petitioner's grandmother was authorized to remove members of her household (see e.g. Abdil v Martinez, 307 AD2d 238, 242 [1st Dept 2003]).

Petitioner's payment of rent did not confer legitimacy on her occupancy (see Perez v New York City Hous. Auth., 99 AD3d 624, 625 [1st Dept 2012]) and her mitigating circumstances do not provide a basis for annulling NYCHA's determination (see Firpi v New York City Hous. Auth., 107 AD3d 523, 524 [1st Dept 2013]). Additionally, petitioner may not invoke estoppel against a

governmental agency, such as respondent (see Parkview Assocs. v City of New York, 71 NY2d [*2]274, 282 [1988], cert denied, appeal dismissed, 488 US 801 [1988]; Adler v New York City Hous. Auth., supra).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 26, 2015

CLERK