Opinion
06-02-2016
In re Cheryl McBRIDE, Petitioner, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.
Cravath, Swaine & Moore LLP, New York (Christopher J. Gessner of counsel), for petitioner. David I. Farber, New York (Seth E. Kramer of counsel), for respondent.
Cravath, Swaine & Moore LLP, New York (Christopher J. Gessner of counsel), for petitioner.
David I. Farber, New York (Seth E. Kramer of counsel), for respondent.
ACOSTA, J.P., SAXE, GISCHE, WEBBER, KAHN, JJ.
Determination of respondent New York City Housing Authority (NYCHA), dated July 14, 2014, which, after a hearing, denied petitioner's grievance seeking succession rights, as a remaining family member, to the tenancy of her late uncle, 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 [Andrea Masley, J.], entered April 1, 2015), 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. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–182, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). The hearing officer's failure to credit petitioner's family's testimony as to the submission of written requests that she be allowed to join the household is entitled to great weight (see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ). Even if we were to credit this testimony, it would not establish entitlement to succession rights. Petitioner acknowledges that these requests were never granted and her residency and income were not reflected on the affidavits of income for the apartment (see Matter of Ponton v. Rhea, 104 A.D.3d 476, 961 N.Y.S.2d 114 [1st Dept.2013] ; Matter of Adler v. New York City Hous. Auth., 95 A.D.3d 694, 695, 943 N.Y.S.2d 892 [1st Dept.2012], lv. dismissed 20 N.Y.3d 1053, 961 N.Y.S.2d 828, 985 N.E.2d 423 [2013] ).
Petitioner may not invoke estoppel against a governmental agency, such as respondent (see Matter of Schorr v. New York City Dept. of Hous. Preserv. & Dev., 10 N.Y.3d 776, 779, 857 N.Y.S.2d 1, 886 N.E.2d 762 [2008] ; Matter of Parkview Assoc. v. City of New York, 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372 [1988], cert. denied, appeal dismissed, 488 U.S. 801, 109 S.Ct. 30, 102 L.Ed.2d 9 [1988] ; Adler at 695, 943 N.Y.S.2d 892 ) and the record affords no basis upon which to relieve petitioner of the written consent requirement (see Matter of McFarlane v. New York City Hous. Auth., 9 A.D.3d 289, 780 N.Y.S.2d 135 [1st Dept.2004] ; cf. Matter of Gutierrez v. Rhea, 105 A.D.3d 481, 964 N.Y.S.2d 1 [1st Dept.2013], lv. denied 21 N.Y.3d 861, 971 N.Y.S.2d 751, 994 N.E.2d 842 [2013] ).
Petitioner's mitigating circumstances do not provide a basis for aning NYCHA's determination (see Matter of Firpi v. New York City Hous. Auth., 107 A.D.3d 523, 524, 967 N.Y.S.2d 352 [1st Dept.2013] ; Matter of Guzman v. New York City
Hous. Auth., 85 A.D.3d 514, 925 N.Y.S.2d 59 [1st Dept.2011] ).
Finally, we find NYCHA's submission of correspondence, not before the hearing officer, to be improper, and have not considered it in reaching our decision (see Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554, 720 N.Y.S.2d 93, 742 N.E.2d 607 [2000] ).