Opinion
5708 Index 157409/15
02-15-2018
In re JIAN MIN LEI, Petitioner–Appellant, v. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, et al., Respondents–Respondents.
Steven T. Gee, P.C., New York (Steven T. Gee of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for New York City Department of Housing Preservation and Development, respondent. Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for Gouverneur Gardens Housing Corp., respondent.
Steven T. Gee, P.C., New York (Steven T. Gee of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for New York City Department of Housing Preservation and Development, respondent.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for Gouverneur Gardens Housing Corp., respondent.
Sweeny, J.P., Manzanet–Daniels, Gische, Kahn, Oing, JJ.
Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered August 23, 2016, denying the petition to annul the determination of respondent New York City Department of Housing Preservation and Development (HPD), which denied petitioner's claim for succession rights to the subject apartment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioner's inclusion on his father's income affidavits does not, by itself, establish his entitlement to succession rights as a matter of law (see Matter of Pietropolo v. New York City Dept. of Hous. Preserv. & Dev. , 39 A.D.3d 406, 836 N.Y.S.2d 16 [1st Dept. 2007] ). HPD was "entitled to consider the lack of objective documentary evidence supporting petitioner's claim ... and the fact that petitioner provided an address other than the subject apartment as his place of residence on a tax return filed during the relevant time period" ( Matter of Hochhauser v. City of N.Y. Dept. of Hous. Preserv. & Dev. , 48 A.D.3d 288, 289, 853 N.Y.S.2d 22 [1st Dept. 2008] ).
The fact that the housing company changed its records and billings, accepted petitioner's rent checks for several years, and entered into a transfer agreement is unavailing, as "estoppel cannot be invoked against a governmental agency to prevent it from discharging its statutory duties" ( 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] [internal quotation marks omitted] ). HPD never issued a lease, and the payment of rent by petitioner did not legitimatize his occupation of the apartment (see Matter of Adler v. New York City Hous. Auth., 95 A.D.3d 694, 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] ).
Contrary to petitioner's contention, the transfer agreement did not constitute an approval of his succession rights, and the agreement specifically stated that it was subject to HPD regulations. Equally unavailing is petitioner's argument that HPD should have challenged the housing company's transfer of his tenancy under 28 RCNY 3–18, and not pursuant to 28 RCNY 3–02(p), since no written lease was involved (compare Matter of Waldman v. New York City Dept. of Hous. Preserv. & Dev. , 36 A.D.3d 501, 830 N.Y.S.2d 28 [1st Dept. 2007] ).
Petitioner also claims that he was never provided with a translation of the documents. However, there is no evidence that an interpreter was requested (see Yunayeva v. Kings Bay Hous. Co., Inc. , 94 A.D.3d 452, 941 N.Y.S.2d 591 [1st Dept. 2012] ). Furthermore, "the regulation under which [petitioner] claimed succession rights (28 RCNY § 3–02(p) ) did not provide for a hearing" ( Pietropolo at 407, 836 N.Y.S.2d 16 ); nor was one warranted under the circumstances.