| Matter of Rivera v New York City Hous. Auth. |
| 2009 NY Slip Op 01873 [60 AD3d 509] |
| March 17, 2009 |
| Appellate Division, First Department |
| In the Matter of Vicente Rivera, Petitioner, v New YorkCity Housing Authority, Respondent. |
—[*1] Ricardo Elias Morales, New York (Joseph P. Fusco of counsel), for respondent.
Determination of respondent, dated January 3, 2007, which denied petitioner's grievanceseeking to succeed to the tenancy of the deceased tenant as a remaining family member,unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLRarticle 78 (transferred to this Court by order of the Supreme Court, New York County, RichardF. Braun, J., entered Oct. 15, 2007), dismissed, without costs.
The determination is supported by substantial evidence. Petitioner did not qualify as aremaining family member, since he did not enter the apartment lawfully, respondent never gavethe tenant of record written permission for petitioner to join her household, and petitioneracknowledged that no such permission was ever obtained prior to the tenant's death (see Jamison v New York City Hous.Auth.-Lincoln Houses, 25 AD3d 501, 502 [2006]). The record, including, inter alia, theannual income affidavits submitted by the tenant of record from 1995 until her death in 2001 andher transfer request to respondent two years prior to her death, showed that she listed onlyherself and her minor daughter as occupants of the apartment. The housing assistant also testifiedthat the tenant's folder contained no indication that she ever requested respondent's permissionfor petitioner to move into the subject apartment (see Matter of Abreu v New York City Hous. Auth. E. Riv. Houses, 52AD3d 432, 433 [2008]).
Petitioner's argument that both he and the tenant of record were unable to register hisoccupancy because of respondent's failure to make reasonable accommodations for their severedisabilities in violation of the Americans with Disabilities Act (ADA) (see 42 USC§ 12132) is unavailing. Petitioner cannot invoke the Act because he is not a "qualifiedindividual with a disability" as that term is defined (see 42 USC § 12131 [2]),since he does not meet the essential eligibility requirements for admission into public housing,i.e., he never submitted an application for public housing, he was neither born nor adopted intoan existing tenancy, and the tenant of record never applied for or obtained respondent's writtenpermission for his occupancy. Furthermore, even if petitioner was a "qualified individual," boththe lease and respondent's rules and regulations place the obligation on the tenant of record toobtain written permission before allowing someone to move into the apartment.
Petitioner's attempt to invoke the ADA on behalf of the tenant of record (his companion)fails since he does not have standing to assert such a claim (see Willson v Association of[*2]Graduates of U.S. Military Academy, 946 F Supp 294,296 [SD NY 1996]). In any event, although the evidence at the hearing established that thetenant was physically debilitated because of cancer, no evidence was presented to indicate thatshe lacked the mental capacity to request written permission for petitioner's occupancy. Thetenant remained in telephone contact with her housing assistant as recently as two weeks beforeher death, and at no time did she mention petitioner's occupancy. There is also no explanation asto why the tenant was unable to seek written permission to add petitioner to her household at anytime between 1995 when he allegedly moved in, and the onset of her illness in 1998.Concur—Friedman, J.P., Nardelli, Catterson and DeGrasse, JJ.