Ortiz v Rhea

Ortiz v Rhea 2015 NY Slip Op 03609 Decided on April 30, 2015 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 April 30, 2015
Sweeny, J.P., Andrias, Manzanet-Daniels, Clark, JJ.
14922 401515/13

[*1] In re Carmen Ortiz, Petitioner-Respondent,

v

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

David I. Farber, New York (Seth E. Kramer of counsel), for appellants.

Kirkland & Ellis LLP, New York (Thomas Matthew of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Andrea Masley, J.), entered May 19, 2014, annulling respondent's determination, dated May 8, 2013, which denied petitioner succession rights to an apartment formerly leased to her mother, unanimously reversed, on the law, without costs, the determination reinstated, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.

The determination that petitioner is not entitled to succession rights as a remaining family member (RFM) is rationally based and is not arbitrary and capricious (see generally Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363 [1987]). The only written consent petitioner ever acquired to occupy the apartment was as a temporary resident, which did not

qualify her for RFM status (see Matter of Rodriguez v Hernandez, 51 AD3d 532 [1st Dept 2008], lv denied 11 NY3d 707 [2008]; Matter of Powell v Franco, 276 AD2d 430 [1st Dept 2000]). On July 29, 2010, petitioner's mother requested permission for petitioner to permanently reside in the apartment. Petitioner's mother died less than six months later, on January 9, 2011. Thus, even if the request had been granted immediately, petitioner would not have met the requirement of continuous residence in the apartment with respondent's written consent for at least one year preceding her mother's death that would entitle her to succession rights (see Matter of Saad v New York City Hous. Auth., 105 AD3d 672 [1st Dept 2013]; Matter of Ponton v Rhea, 104 AD3d 476, 477 [1st Dept 2013]). Petitioner's mitigating circumstances do not provide a basis for annulling respondent's determination (see Matter of Saad, 105 AD3d at 672). Petitioner may not invoke

estoppel against respondent (see Matter of Schorr v New York City Dept. of Hous. Preserv. & Dev., 10 NY3d 776 [2008]; Matter of Hutcherson v New York City Hous. Auth., 19 AD3d 246 [1st Dept 2005]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 30, 2015

CLERK