Matter of Domb v Cestero

Matter of Domb v Cestero 2011 NY Slip Op 08189 Decided on November 15, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 15, 2011
Saxe, J.P., Sweeny, Catterson, Freedman, Manzanet-Daniels, JJ.
5427 112951/09

[*1]In re Sam Domb, et al., Petitioners,

v

Rafael Cestero, Commissioner of the Department of Housing Preservation and Development of the City of New York, et al., Respondents.




Robinson, Brog, Leinwand, Greene, Genovese & Gluck, P.C.,
New York (Philip T. Simpson of counsel), for petitioners.
Michael A. Cardozo, Corporation Counsel, New York (Norman
Corenthal of counsel), for respondents.

Determination of respondent Department of Housing Preservation and Development, dated May 13, 2009, which denied petitioners' application for a certificate of no harassment, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Marcy S. Friedman, J.], entered March 19, 2010), dismissed, without costs.

The denial of petitioners' application for a certificate of no harassment was proper. The record shows that the ALJ's finding that petitioners engaged in harassment, as the term is defined by Administrative Code of City of NY § 27-2093(a), was
supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-180 [1978]). "Substantial evidence" is merely "relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact . . . and it is of no consequence that the record would have also supported a contrary conclusion" (Matter of Verdell v Lincoln Amsterdam House, Inc., 27 AD3d 388, 390 [2006]). The testimony adduced at the hearing showed that conditions at the premises during the 36-month period prior to petitioners' application (see Administrative Code § 27-2093[c]) included, inter alia, leaks in tenants' apartments and lead-paint and mold conditions in another tenant's apartment (see Matter of Hersh v City of N.Y. Dept. of Hous. Preserv. & Dev., 44 AD3d 525 [2007]). No basis exists to disturb respondents' findings of credibility (see Matter of Berenhaus v Ward, 70 NY2d 436, 443 [1987]), which, in any event, are generally unreviewable by the courts (id.; see also Silbergarb v Bd. Of Coop. Educ. Servs., Third Supervisory Dist., Suffolk County, 60 NY2d 979, 981 [1983]; Matter of Vaughn v Michetti, 176 AD2d 144 [1991]).

That being said, we agree with petitioner that respondent Department of Housing, Preservation and Development's (HPD) modification of the ALJ's findings to include three additional instances of harassment rejected by the ALJ is not supported by substantial evidence. Indeed, HPD acknowledges in its brief that no finding of harassment is warranted in one of those [*2]instances.

Contrary to petitioners' contention, the fact that the final determination was issued by the Deputy Commissioner, as opposed to the Commissioner, does not render it defective (see 28 RCNY 10-01; 28 RCNY 10—07).

We have considered petitioners' remaining contentions and find them to be unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 15, 2011

CLERK