Timing is everything in succession cases, and a decision issued by the Appellate Division, First Department, drives that point home.
In Torres v. New York City Housing Authority , Lillibea Torres sought permission to continue living in her deceased sister's apartment, which was located in the Lincoln Houses, a New York City Housing Authority (NYCHA) owned and operated housing development for low-income families. Torres, along with her husband and 11 year-old daughter, moved into the apartment in 2002 when Hannah Lane -- Torres's sister -- was diagnosed with a metastatic lung cancer that required 24-hour care.
In December of 2002, Lane asked the management office to allow Torres and her family to "join the household" and filed a written request with NYCHA for that purpose. NYCHA denied the request, "citing insufficient proof that [Torres] was actually Lane's sister."
In May of 2003, Torres submitted a second written request, along with documentation of Lane's physical condition and proof that the two were related. Although NYCHA eventually approved Torres's request to join the household on June 18, 2003, Lane died the following day.
Upon Lane's death, Torres requested that her family be allowed to continue living in the apartment as remaining family members. The property manager found Torres ineligible, as she had not lived in the unit for at least one-year following written permission to join the household; an outcome with which NYCHA's district director concurred.
After a "Remaining Family Member Grievance Hearing," a hearing officer again concluded that Torres hadn't satisfied the "one-year rule."
In response, Torres filed an Article 78 proceeding in the New York County Supreme Court seeking to overturn NYCHA's decision. She contended that the agency "failed either to provide proper notice of the adoption of the one-year rule or to modify the lease agreement in writing as required by its terms." The New York Supreme Court believed that NYCHA should have posted the one-year rule in each development's office, and that the omission violated Lane's lease. As a result, the Supreme Court found NYCHA's decision to deny Torres a lease "arbitrary and capricious," and found Torres entitled to succeed to the apartment.
NYCHA appealed to the Appellate Division, First Department, arguing that the Supreme Court should not have considered the objection, as Torres had not preserved that issue for judicial review. The record clearly indicated that Torres asserted two theories at her grievance hearing, neither of which related to the lease violation. As a consequence, the AD1 refused to consider the arguments which she subsequently proffered in her appeal. [1]
In addition, because Torres had not complied with the governing occupancy requirements, the AD1 did not find NYCHA's decision to be "arbitrary and capricious," and reinstated the eviction order.
A rather torrid outcome, wouldn't you agree?
For a copy of the Appellate Division's decision, please use this link: Torres v. New York City Housing Authority[1] Appellate courts will typically reject any attempts to raise issues for the first time on appeal. In this instance, for example, the AD1 concluded that "for a court to consider evidentiary submissions as to circumstances after the [Housing] Authority made its determination would violate [a] fundamental tenet of CPLR article 78 review, namely that judicial review of administrative determinations is confined to the facts and record adduced before the agency (citation omitted)."