Opinion
2012-10-4
In re KWAN FONG FUNG, et al., Petitioners–Appellants, v. NEW YORK CITY HOUSING AUTHORITY, Respondent–Respondent.
Kwan Fong Fung appellant pro se. Pak Fung, appellant pro se.
Kwan Fong Fung appellant pro se. Pak Fung, appellant pro se.
Kelly D. MacNeal, New York (Melissa Renwick of counsel), for respondent.
ANDRIAS, J.P., SWEENY, CATTERSON, MOSKOWITZ, MANZANET–DANIELS, JJ.
Judgment, Supreme Court, New York County (Alexander W. Hunter, J.), entered September 2, 2011, denying the petition to annul respondent's determination, which denied petitioners succession rights as remaining family members to the subject apartment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The determination that petitioners did not qualify as remaining family members for purposes of succession rights to the subject apartment has a rational basis. The evidence shows that petitioner Kwan Fong Fung did not become an authorized occupant of her father's apartment prior to his death in 2009 ( see Matter of Valentin v. New York City Hous. Auth., 72 A.D.3d 486, 898 N.Y.S.2d 130 [1st Dept.2010] ).
Contrary to petitioners' contention, respondent did not implicitly approve of their residence in the subject apartment. A governmental agency cannot be estopped from discharging its statutory duties when a claimant does not meet the eligibility requirements for succession rights to an apartment, even if the managing agent acquiesced in an unauthorized occupancy ( see Matter of Schorr v. New York City Dept. of Hous. Preserv. & Dev., 10 N.Y.3d 776, 778–779, 857 N.Y.S.2d 1, 886 N.E.2d 762 [2008];Matter of Adler v. New York City Hous. Auth., 95 A.D.3d 694, 695, 943 N.Y.S.2d 892 [1st Dept.2012] ). Moreover, petitioners' age, declining health, and claim that they have nowhere else to live are mitigating factors and hardships that the hearing officer was not required to consider ( see Matter of Fermin v. New York City Hous. Auth., 67 A.D.3d 433, 889 N.Y.S.2d 137 [1st Dept.2009] ). Nor did the payment of rent by petitioners confer succession rights to them ( see Matter of Muhammad v. New York City Hous. Auth., 81 A.D.3d 526, 527, 917 N.Y.S.2d 173 [1st Dept.2011]; see also Matter of Garcia v. Franco, 248 A.D.2d 263, 264–265, 670 N.Y.S.2d 436 [1st Dept.1998], lv. denied92 N.Y.2d 813, 680 N.Y.S.2d 906, 703 N.E.2d 764 [1998] ).
Finally, despite petitioners' compelling living situation, this Court has no interest of justice authority in reviewing the agency's determination ( see Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554, 720 N.Y.S.2d 93, 742 N.E.2d 607 [2001] ).
We have considered petitioners' remaining contentions and find them unavailing.