IN RE: Starkisha ADAMS (2022)

Determination of respondent New York City Housing Authority (N.Y.CHA), dated December 2, 2019, which, after a hearing, denied petitioner's application to succeed to the subject apartment as a remaining family member (RFM) of the tenant of record, 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 [John J Kelley, J], entered November 24, 2021), dismissed, without costs.

The Hearing Officer's decision is supported by substantial evidence (see CPLR 7803[4]).  There is no dispute that petitioner and tenant failed to comply with NYCHA's written consent requirement to be eligible for succession.  While the courts have not always required strict compliance with NYCHA's rules on written consent (see Matter of Porter v. New York City Hous. Auth., 169 A.D.3d 455, 460, 95 N.Y.S.3d 2 [1st Dept. 2019];  Matter of Gutierrez v. Rhea, 105 A.D.3d 481, 486, 964 N.Y.S.2d 1 [1st Dept. 2013]), petitioner here did not show a reasonable excuse for failing to comply.

Although petitioner argues that NYCHA had knowledge of, and thus implicitly consented to, her occupancy through conversations with housing assistants, and through her membership in the tenant association since 2015, there is no evidence that any NYCHA representative verbally or impliedly consented to her occupancy nor that they knew of her membership on the tenant association prior to her nomination as an officer less than a year prior to the death of the tenant of record in 2016.  Additionally, the tenant of record never listed petitioner on her annual income affidavits, and petitioner provided evidence of another address on her May 2016 permission request, the first completed request submitted by the tenant, less than a year before the death of the tenant in November 2016.

Furthermore, notwithstanding petitioner's testimony that a housing assistant advised petitioner in 2015 not to submit a request for permission to move into the subject apartment due to petitioner's criminal conviction, stating that it would not be approved, even if a representative of an agency provides misleading statements or incorrect information, the agency cannot be estopped from enforcing its policies (Matter of Cole v. New York City Hous. Auth., 122 A.D.3d 527, 528, 997 N.Y.S.2d 390 [1st Dept. 2014]).