Matter of Arroyo v Donovan

Matter of Arroyo v Donovan 2010 NY Slip Op 01422 [70 AD3d 517] February 18, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

In the Matter of Juan Arroyo et al., Petitioners,
v
Shaun Donovan, as Commissioner of the New York City Department of Housing Preservation and Development, et al., Respondents.

—[*1] Joan L. Beranbaum, New York (Richard S. Cempa of counsel), for petitioners.

Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for Shaun Donovan, respondent.

Fingerit & Fingerit, LLP, New York (Eric B. Schultz of counsel), for Woodstock Terrace Mutual Housing Corp., respondent.

Determination of respondent Department of Housing Preservation and Development (HPD), dated April 24, 2008, which, after a hearing, granted respondent Woodstock Terrace Mutual Housing Corp.'s request for a certificate of eviction, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Jane S. Solomon, J.], entered November 6, 2008) dismissed, and the stay of eviction vacated, without costs.

HPD's determination that the subject apartment is not petitioners' primary residence is supported by substantial evidence, including the facts that they own a home in Florida and that petitioner Juan Arroyo's driver's license and car registration were issued by the State of Florida (see 28 RCNY 3-02 [n] [4]; Matter of O'Quinn v New York City Dept. of Hous. Preserv. & Dev., 284 AD2d 211 [2001]; Matter of Studley v New York City Dept. of Hous. Preserv. & Dev., 277 AD2d 101 [2000]). Petitioners submitted no documentation in support of their allegation that their grandchild, who is listed on the income affidavit as an occupant of the apartment, is home-schooled (see 8 NYCRR 100.10 [detailing reporting requirements]). Moreover, neither petitioners' and their witnesses' testimony nor the documentary evidence was sufficient to refute the finding that petitioners did not reside in the subject apartment for the required 183 days per year (28 RCNY 3-02 [n] [4] [iv]).

Petitioners were provided with sufficient notice of the charges against them (see 28 RCNY 3-18 [a] [3]). They were not entitled to an opportunity to cure their nonprimary residence (see 28 RCNY 3-18 [b]; Matter of O'Quinn, 284 AD2d at 212).

We have considered petitioners' remaining arguments and find them unavailing. Concur—Andrias, J.P., Catterson, Renwick, DeGrasse and Manzanet-Daniels, JJ.