Rosello v Rhea

Rosello v Rhea 2011 NY Slip Op 07734 Decided on November 3, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 3, 2011
Mazzarelli, J.P., Saxe, Acosta, DeGrasse, Manzanet-Daniels, JJ.
5940 400061/10

[*1]Ramona Rosello, Petitioner, --

v

John B. Rhea, etc., et al., Respondents.




Jeanette Zelhof, MFY Legal Services, Inc., New York (Sara J.
Fulton of counsel), for petitioner.
Sonya M. Kaloyanides, New York (Seth E. Kramer of counsel),
for respondents.

Determination of respondent The New York City Housing Authority, dated August 26, 2009, approving the decision of the Hearing Officer which denied petitioner's remaining-family-member (RFM) grievance, 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 [Marcy S. Friedman, J.], entered October 12, 2010), dismissed, without costs.

The determination has a rational basis and is supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-181 [1978]). Petitioner admits and the record reflects that her deceased husband, the tenant of record, never received written consent for her to reside in his apartment, and that she was not an authorized occupant of the apartment for a one-year period before his death (Matter of Echeverria v New York City Hous. Auth., 85 AD3d 580, 581 [2011]; Matter of Rivera v New York City Hous. Auth., 60 AD3d 509, 509 [2011]). The record does not support petitioner's claim that before the tenant of record's death, he asked respondent for assistance in adding petitioner to his household. In any event, respondent may not be estopped from denying RFM status even if it, among other things, failed to assist the tenant of record with the necessary forms or was aware of petitioner's occupancy (Matter of Schorr v New York City Dept. of Hous. Preserv. & Dev., 10 NY3d 776, 779 [2008]; Matter of Edwards v New York City Hous. Auth., 67 AD3d 441, 442 [2009]).

We reject petitioner's argument that respondent violated federal, city and state discrimination laws by failing to make reasonable accommodations for her and the tenant of record's disabilities. Petitioner lacks standing to assert disability claims on the tenant of record's behalf (see Matter of Filonuk v Rhea, 84 AD3d 502, 503 [2011]). Further, petitioner's alleged disability is irrelevant since, as she concedes, under respondent's rules, only the tenant of record [*2]could have requested and obtained written permission for her occupancy (see Rivera, 60 AD3d at 510).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 3, 2011

CLERK