Opinion
2012-12-4
In re Shireen RAHJOU, et al., Petitioners, v. John B. RHEA, etc., Respondent.
William E. Leavitt, New York, for petitioners. Kelly D. MacNeal, New York (Seth E. Kramer of counsel), for respondent.
William E. Leavitt, New York, for petitioners. Kelly D. MacNeal, New York (Seth E. Kramer of counsel), for respondent.
SAXE, J.P., FRIEDMAN, ACOSTA, RENWICK, FREEDMAN, JJ.
Determination, dated December 29, 2010, which denied petitioners a tenancy by succession as remaining family members, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Eileen A. Rakower, J.], entered October 13, 2011), dismissed, without costs.
Regardless of whether this proceeding was properly transferred to this Court ( seeCPLR 7804[g] ), we retain jurisdiction of it in the interest of judicial economy ( see Matter of Sexton v. Kelly, 95 A.D.3d 544, 943 N.Y.S.2d 516 [1st Dept.2012] ).
Petitioners failed to demonstrate that the tenant of record received written consent for them to reside in the subject apartment and that they were authorized occupants of the apartment for a one-year period before the tenant of record's death. Thus, respondent's decision to deny petitioners remaining family member status was not arbitrary and capricious ( see Matter of Adler v. New York City Hous. Auth., 95 A.D.3d 694, 943 N.Y.S.2d 892 [1st Dept.2012] ). Even if respondent apparently acquiesced in petitioners' residency in the apartment, he is not estopped from denying them remaining family member status ( 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] ).
The hearing officer correctly concluded that petitioners lack standing to argue that they are exempt from respondent's remaining family member policy because respondent failed to comply with the notice provisions of the deceased tenant's lease. Petitioners were not parties to the lease and had no other contractual relationship with respondent ( see Matter of Lakins v. New York City Hous. Auth., 67 A.D.3d 604, 888 N.Y.S.2d 407 [1st Dept.2009] ). Moreover, the evidence supports the conclusion that petitioners had actual notice of the policy requiring management's written permission before they could become authorized occupants of the apartment.
We have considered petitioners' remaining arguments and find them unavailing.