Matter of Kwan Fong Fung v New York City Hous. Auth.

Matter of Matter of Kwan Fong Fung v New York City Hous. Auth. 2012 NY Slip Op 06654 Decided on October 4, 2012 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 October 4, 2012
Andrias, J.P., Sweeny, Catterson, Moskowitz, Manzanet-Daniels, JJ.
8178 400559/11

[*1]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.
Kelly D. MacNeal, New York (Melissa Renwick of counsel), for
respondent.

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 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 Featherstone v Franco, 95 NY2d [*2]550, 554 [2001]).

We have considered petitioners' remaining contentions and find them unavailing.

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

ENTERED: OCTOBER 4, 2012

CLERK