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

IN RE: Galina PLAZINSKA, et al., petitioners, 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 (Kossoff Alper & Unger, New York, N.Y. [Stacie Bryce Feldman] of counsel), for petitioners. 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 16, 2002, which, after a hearing, granted the application of Trump Village Section 3, Inc., for a certificate authorizing eviction proceedings against the petitioners.

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.

There is substantial evidence in the record to support the determination of the respondent New York State Division of Housing and Community Renewal that the petitioners were subject to eviction from the public housing apartment they occupied (see 9 NYCRR 1727-1.1[e];  1727-1.3[b][3], [c], [h];  1727-5.3 [b][1];  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 hearing officer properly rejected the petitioners' defense sounding in equitable estoppel (see Matter of Daleview Nursing Home v. Axelrod, 62 N.Y.2d 30, 33, 475 N.Y.S.2d 826, 464 N.E.2d 130;  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;  F.A.S.A. Constr. Corp. v. Village of Monroe, 14 A.D.3d 532, 534, 789 N.Y.S.2d 175).

The petitioners' argument that their due process rights were violated by the hearing officer's reliance upon regulations not cited in the application seeking authorization for eviction proceedings against them 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), and, in any event, is without merit (see Matter of D'Ambrosio v. Department of Health of 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;  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 petitioners' remaining contention is without merit.

Accordingly, and for the reasons stated in Matter of Kiselgof v. New York State Div. of Hous. & Community Renewal, 22 A.D.3d 853, 803 N.Y.S.2d 166 [decided herewith], the determination must be confirmed.

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