Kwan Fong Fung v. New York City Housing Authority

99 A.D.3d 452, 952 N.Y.2d 21

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 2012
• Status: Published

Opinion

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 AD3d 486 [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 NY3d 776, 778-779 [2008]; Matter of Adler v New York City Hous. Auth., 95 AD3d 694, 695 [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 AD3d 433 [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 AD3d 526, 527 [1st Dept 2011]; see also Matter of Garcia v Franco, 248 AD2d 263, 264-265 [1st Dept 1998], lv denied 92 NY2d 813 [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 NY2d 550, 554 [2000]).

We have considered petitioners’ remaining contentions and find them unavailing. Concur — Andrias, J.E, Sweeny, Catterson, Moskowitz and Manzanet-Daniels, JJ.