IN RE: Ella KISELGOF

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Ella KISELGOF, petitioner, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., respondents.

Decided: October 31, 2005

A. GAIL PRUDENTI, P.J., HOWARD MILLER, ROBERT A. SPOLZINO, and ROBERT J. LUNN, JJ. Sidney Siller (Lossoff Alper & Unger, New York, N.Y. [Stacie Bryce Feldman] of counsel), for petitioner. Eliot Spitzer, Attorney-General, New York, N.Y. (Michelle Aronowitz and Gregory Klass of counsel), for respondent New York State Division of Housing and Community Renewal.

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Division of Housing and Community Renewal, dated October 22, 2002, which, after a hearing, granted the application of Trump Village Section 3, Inc., for a certificate authorizing eviction proceedings against the petitioner.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs payable to the respondent New York State Division of Housing and Community Renewal.

 The petitioner challenges the determination of the respondent New York State Division of Housing and Community Renewal (hereinafter the DHCR) granting the application of the respondent Trump Village Section 3, Inc., for a certificate authorizing eviction proceedings against her (hereinafter the eviction application).   Contrary to the petitioner's contention, there is substantial evidence in the record to support the DHCR's determination that she was subject to eviction from the public housing apartment she occupied (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183;  Matter of Jones v. Hudacs, 221 A.D.2d 531, 633 N.Y.S.2d 827).   The petitioner obtained occupancy in a manner not in conformity with the DHCR's regulations (see 9 NYCRR 1727-5.3 [b][1] ), which provide that public housing may be offered only to a prospective tenant whose name is properly selected from a waiting list and whose application is approved by the DHCR (see 9 NYCRR 1727-1.1[e];  1727-1.3 [b][3], [c], [h] ).

 In determining the eviction application, the hearing officer properly rejected the petitioner's defense sounding in equitable estoppel.   Under the circumstances of this case, such a defense, though asserted against a private party, would have, in effect, operated to estop the DHCR from discharging its statutory duties.   Generally, “estoppel is not available against a governmental agency in the exercise of its governmental functions” (Matter of Daleview Nursing Home v. Axelrod, 62 N.Y.2d 30, 33, 475 N.Y.S.2d 826, 464 N.E.2d 130;  see Matter of Parkview Assoc. v. City of New York, 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372, cert. denied 488 U.S. 801, 109 S.Ct. 30, 102 L.Ed.2d 9;  Scruggs-Leftwich v. Rivercross Tenants' Corp., 70 N.Y.2d 849, 851-852, 523 N.Y.S.2d 451, 517 N.E.2d 1337).   Moreover, “equitable estoppel cannot be invoked to relieve a party ‘from the mandatory operation of a statute’ ” (F.A.S.A. Constr. Corp. v. Village of Monroe, 14 A.D.3d 532, 534, 789 N.Y.S.2d 175, quoting Matter of Hauben v. Goldin, 74 A.D.2d 804, 805, 426 N.Y.S.2d 273).

 The petitioner's argument that her due process rights were violated by the hearing officer's reliance upon regulations not cited in the eviction application is not preserved for this court's review (see Matter of Sisco v. Board of Trustees of Vil. of Haverstraw, 288 A.D.2d 230, 732 N.Y.S.2d 377;  Matter of Eckerson v. New York State & Local Retirement Sys., 270 A.D.2d 705, 704 N.Y.S.2d 713).   In any event, a review of the eviction application and the relevant regulations reveals that the allegations against the petitioner were reasonably specific, in light of all the relevant circumstances, and thus sufficient to apprise the petitioner of the charges against her and to allow for the preparation of an adequate defense (see Matter of D'Ambrosio v. Department of Health of the State of N.Y., 4 N.Y.3d 133, 140-141, 791 N.Y.S.2d 63, 824 N.E.2d 494;  Matter of Block v. Ambach, 73 N.Y.2d 323, 333, 540 N.Y.S.2d 6, 537 N.E.2d 181).   To the extent that the hearing officer's reliance upon the additional, largely duplicative regulations constituted an amendment of the charges, the petitioner failed to demonstrate that she was prejudiced thereby (see Matter of Wohlleb v. Board of Educ. of Bridgehampton Union Free School Dist., 231 A.D.2d 643, 647 N.Y.S.2d 801;  Matter of Cerio v. New York City Tr. Auth., 228 A.D.2d 676, 645 N.Y.S.2d 822).

The petitioner's remaining contention is without merit.

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