Opinion
2012-05-22
In re Relly ADLER, Petitioner–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Respondent–Respondent.
Tenenbaum, Berger & Shivers LLP, Brooklyn (David M. Berger of counsel), for appellant. Sonya M. Kaloyanides, New York (Andrew M. Lupin of counsel), for respondent.
Tenenbaum, Berger & Shivers LLP, Brooklyn (David M. Berger of counsel), for appellant. Sonya M. Kaloyanides, New York (Andrew M. Lupin of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered March 29, 2011, which denied the petition brought pursuant to CPLR article 78, seeking to annul respondent's determination dated May 5, 2010, denying petitioner succession rights, as a remaining family member to the subject apartment, and dismissed the proceeding, unanimously affirmed, without costs.
Petitioner did not sustain her burden of establishing entitlement to succession rights as a remaining family member to the apartment held by her husband, because the record demonstrates that her occupancy was not pursuant to respondent's written permission, nor was it reflected in the affidavits of income submitted by her husband to respondent ( see Matter of Echeverria v. New York City Hous. Auth., 85 A.D.3d 580, 925 N.Y.S.2d 485 [2011]; Matter of Abreu v. New York City Hous. Auth. E. Riv. Houses, 52 A.D.3d 432, 860 N.Y.S.2d 115 [2008] ).
Given the fact that petitioner cannot show that her husband, as the tenant of record, received written consent for her to reside in the apartment and that she was an authorized occupant of the apartment for a one-year period before his death, respondent's decision to deny her remaining family member status was neither arbitrary nor capricious (see Matter of Torres v. New York City Hous. Auth., 40 A.D.3d 328, 330, 835 N.Y.S.2d 184 [2007] ). Even if NYCHA were aware she was residing there, the agency is not estopped from denying her remaining-family-member status ( see Rosello v. Rhea, 89 A.D.3d 466, 466–467, 931 N.Y.S.2d 873 [2011] ). Moreover, the payment of rent did not confer legitimacy on petitioner's occupation of the apartment ( see Matter of Barnhill v. New York City Hous. Auth., 280 A.D.2d 339, 339, 720 N.Y.S.2d 471 [2001] ).