Matter of Jenkins v New York City Hous. Auth., Amsterdam Houses

Matter of Jenkins v New York City Hous. Auth., Amsterdam Houses 2015 NY Slip Op 04728 Decided on June 4, 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 June 4, 2015
Gonzalez, P.J., Mazzarelli, Acosta, Clark, Kapnick, JJ.
15340 401039/13

[*1] In re Isaiah Jenkins, et al. Petitioners,

v

New York City Housing Authority, Amsterdam Houses, Respondent.

Isaiah Jenkins, petitioner pro se.

David I. Farber, New York (Andrew M. Lupin of counsel), for respondent.

Determination of respondent, dated March 6, 2013, after a hearing, denying petitioner Edward Jenkins's remaining family member claim, filed by petitioner Isaiah Jenkins on Edward's behalf as his legal guardian, to succession rights to an apartment formerly leased to Edward's grandmother, Rosa Jenkins, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Alice Schlesinger, J.], entered April 16, 2014), dismissed, without costs.

Substantial evidence supports respondent's determination that Edward is not entitled to succession rights as a remaining family member because he failed to meet the requirement of continuous occupancy for at least one year preceding the death of

the tenant of record (see Matter of Fermin v New York City Hous. Auth., 67 AD3d 433 [1st Dept 2009]). Isaiah obtained custody of Edward, his nephew, in April 2003. Edward had previously lived with Rosa, the tenant of record, who died in January 2004. The evidence abundantly shows that petitioners generally lived in New Jersey while Edward, then a minor, was attending school there, apparently beginning almost nine months before Rosa's death. Moreover, Edward did not obtain the requisite written permission to rejoin the household after moving in with Isaiah in New Jersey in April 2003, less than one year before Rosa's death (see Ortiz v Rhea, __ AD3d __, 2015 NY Slip Op 03609 [1st Dept 2015]).

Petitioners' contention that they were deprived of due process by the preclusion of a witness at the hearing is unpreserved since it was not raised at the administrative level (see Green v New York City Police Dept., 34 AD3d 262 [1st Dept 2006]). Moreover, this claim was improperly raised for the first time in a memorandum of law submitted after respondent filed its answer.

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: JUNE 4, 2015

CLERK