Opinion
2015-04-30
In re Carmen ORTIZ, Petitioner–Respondent, v. John B. RHEA, etc., et al., Respondents–Appellants.
David I. Farber, New York (Seth E. Kramer of counsel), for appellants. Kirkland & Ellis LLP, New York (Thomas Matthew of counsel), for respondent.
David I. Farber, New York (Seth E. Kramer of counsel), for appellants. Kirkland & Ellis LLP, New York (Thomas Matthew of counsel), for respondent.
SWEENY, J.P., ANDRIAS, MANZANET–DANIELS, CLARK, JJ.
Order and judgment (one paper), Supreme Court, New York County (Andrea Masley, J.), entered May 19, 2014, annulling respondent's determination, dated May 8, 2013, which denied petitioner succession rights to an apartment formerly leased to her mother, unanimously reversed, on the law, without costs, the determination reinstated, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.
The determination that petitioner is not entitled to succession rights as a remaining family member (RFM) is rationally based and is not arbitrary and capricious ( see generally Flacke v. Onondaga Landfill Sys., 69 N.Y.2d 355, 363, 514 N.Y.S.2d 689, 507 N.E.2d 282 [1987] ). The only written consent petitioner ever acquired to occupy the apartment was as a temporary resident, which did not qualify her for RFM status ( see Matter of Rodriguez v. Hernandez, 51 A.D.3d 532, 858 N.Y.S.2d 144 [1st Dept.2008], lv. denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083 [2008]; Matter of Powell v. Franco, 276 A.D.2d 430, 714 N.Y.S.2d 77 [1st Dept.2000] ). On July 29, 2010, petitioner's mother requested permission for petitioner to permanently reside in the apartment. Petitioner's mother died less than six months later, on January 9, 2011. Thus, even if the request had been granted immediately, petitioner would not have met the requirement of continuous residence in the apartment with respondent's written consent for at least one year preceding her mother's death that would entitle her to succession rights ( see Matter of Saad v. New York City Hous. Auth., 105 A.D.3d 672, 964 N.Y.S.2d 136 [1st Dept.2013]; Matter of Ponton v. Rhea, 104 A.D.3d 476, 477, 961 N.Y.S.2d 114 [1st Dept.2013] ). Petitioner's mitigating circumstances do not provide a basis for annulling respondent's determination ( see Matter of Saad, 105 A.D.3d at 672, 964 N.Y.S.2d 136). Petitioner may not invoke estoppel against respondent ( see Matter of Schorr v. New York City Dept. of Hous. Preserv. & Dev., 10 N.Y.3d 776, 857 N.Y.S.2d 1, 886 N.E.2d 762 [2008]; Matter of Hutcherson v. New York City Hous. Auth., 19 A.D.3d 246, 797 N.Y.S.2d 74 [1st Dept.2005] ).