Matter of Oehling v Donovan
Annotate this CaseDecided on April 1, 2005
Supreme Court, Kings County
In the Matter of the Application of Kimberly Oehling, Petitioner,
against
Shaun Donovan, as Commissioner of the New York City Department of Housing Preservation and Development, and the N.Y.C. Department of Housing Preservation and Development, and Lindsay Park Housing Corp., Respondents.
41302/04
Ira B. Harkavy, J.
Petitioner, Kimberly Oehling moves for a judgment pursuant to CPLR Article 78 annulling and vacating the decision made by respondent, dated August 19, 2004, which issued a "Certificate of Eviction" based upon an allegation of petitioner not being in occupancy for two years immediately prior to the death of the tenant of record; and directing that respondents establish petitioner's tenancy and grant her a lease.
Petitioner is seeking equitable relief to compel the New York City Department of Housing and Preservation and Development ("DHPD") to review the record of the administrative hearing and reverse and vacate its determination to issue a "Certificate of Eviction" and deny petitioner her succession rights to a tenancy at 54 Boerum Street, Apt. 20G, Brooklyn, New York, a Mitchell Lama Cooperative.
The DHPD concluded, inter alia, that petitioner was not entitled to succession of the subject apartment after the death of her grandfather, Trino Borges, the tenant of record, on the allegation that petitioner did not occupy the premises for two years prior to the demise of Mr. Borges, December 1999 through November 2001, the relevant period.
Defendant Lindsay Park Housing Corporation ("Lindsay Park") is a limited profit housing company. Lindsay Park owns a Mitchell-Lama building located at 54 Boerum Street, Brooklyn, New York. Trino Borges was the tenant/cooperator of Apartment 20G at 54 Boerum Street, Brooklyn, New York ("subject premises"). Mr Borges permanently vacated the subject premises when he passed away on December 30, 2001. Petitioner, Kimberly Oehoing was Mr. Borges' granddaughter.
On or about November 20, 2003, after learning that Mr. Borgas had passed away and that petitioner, his granddaughter, was residing at the subject premises, Lindsay Park notified petitioner that she was not entitled to succession rights for the subject premises, in part, as she did not reside at the subject remises with Mr. Borges for the requisite two-year period prior to his [*2]permanent vacature of the subject premises. The letter further notified petitioner that if she did not vacate the subject premises withing the time period provided, that Lindsay Park would commence a proceeding before DHPD in order to obtain a Certificate of Eviction.
By Notice of Hearing, Notice of Grounds for Eviction and Petition dated December 16, 2003, Lindsay Park commenced a proceeding before DHPD requesting the issuance of a Certificate of Eviction for the subject premises.
On or about March 13, 2004, an administrative hearing was held by DHPD to determine whether a Certificate of Eviction should be issued for the subject premises.
At the hearing, petitioner testified that she moved into the subject premises in August 1999 in order to care for Mr. Borges as he was ill, and that she continued to reside there up to and after his death on December 30, 2001. In support of her claim of
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residency, petitioner submitted a letter dated August 23, 2001, signed by her grandfather
requesting that petitioner be added to his lease and a 2001 income tax return which was completed on April 11, 2002, 4 months after Mr. Borges' death. Petitioner also attempted to introduce a pool pass issued for 54 Boerum Street, Brooklyn, New York. However, it was not introduced into evidence as Lindsay Park objected to its relevance as the pool pass was issued in 2002, after Mr. Borges had permanently vacated the subject premises.
Petitioner's mother, testified at the hearing that petitioner moved into the subject premises in late 1998/1999 and continued to reside there after Mr. Borges passed away.
Lindsay Park introduced income affidavits for the subject premises for the years of 1997 through 2001 into evidence. Petitioner was on the 1999 income affidavit, but failed to appear on the 2000 income affidavit.
Lindsay Park also introduced an investigation report which listed five addresses for petitioner for the years 1994 through 2000 and the subject premises was not listed.
Additionally, Lindsay Park introduced two moving slips issued to petitioner for the subject premises. The first moving slip indicated that a hospital bed was removed from the subject premises on either February 21, 2002 or February 22, 2002. The second moving slip indicated that petitioner moved a bedroom set, 20 boxes, a televison, and a small table into the subject premises on February 21, 2002, after Mr. Borges passed away.
By decision dated August 19, 2004, Hearing Officer Helen Levy issued a Certificate of Eviction finding that petitioner "failed to establish that she resided with Mr. Borges as her primary residence for the two years before his death."
Hearing Officer Levy found as follows:
In order to obtain succession rights...an individual must be approved from a waiting list or qualify as a family member who has co-occupied the apartment as a primary
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residence with the tenant of record for two years prior to the vacature of the tenant (28 RCNY 3-02(p)).
The HPD rule in effect prior to February 1, 2003 provided that failure... to appear on the appropriate income affidavits... created a presumption that [the family member] did not reside in the apartment as a primary residence. Family members who had not appeared on the appropriate income [*3]affidavits... were allowed to rebut this presumption by submitting additional documentation to prove co-occupancy with the tenant/cooperator for the relevant time period.
Petitioner's property manager testified that an investigation requested by petitioner revealed various addresses for Ms. Oehling in the years 1994 through 2000, but not the address for the subject apartment.
Kimberly Oehlig testified that she moved into her grandfather's apartment in August of 1999... She acknowledged residing at most of the addresses listed in the investigation report... However, she denied that she had ever resided at a listed Forest Hills address which was linked to her in both 1998 and 2000.
Ms. Oehling could provide no documentary evidence of any kind to support her application for succession rights. Although she testified that she had been employed during the period in question she produced no income tax returns or W-2 forms. The 2001 tax return submitted was filed after her grandfather's death and thus is not relevant. She provided no telephone bills, credit card receipt, voter registration, driver's license of state ID, medical records of any other documents that might be expected, including mail received at the premises.
Ms. Oehling appeared on one income affidavit before her grandfather's death but a letter from him supports her contention that she also resided in the apartment the following year. Her mother also testified on her behalf. However, I find this is outweighed by the lack of any supporting documentation of any kind.
By Notice of Petition and Petition dated December 17, 2004, petitioner commenced this proceeding challenging DHPD's decision issuing a Certificate of Eviction.
CPLR 7803 provides for very limited judicial review of administrative actions, providing in part: "The only questions that may be raised in a proceeding under this article are: whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed..."
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The Court of Appeals stated in Pell v. Bd. of Educ., 34 NY2d 222, 231;
"the arbitrary or capricious test chiefly "relates to whether a particular action should have been taken or is justified... and whether the administrative action is without foundation in fact.' (1 NY Jur., Administrative Law, § 184). Arbitrary action is without sound
basis in reason and is generally taken without regard to the facts."
A court may overturn an administrative action only if the record reveals no rational or reasonable basis for it. The reviewing court does not examine the facts de novo to reach an independent determination. Marsh v. Hanley, 50 AD2d 687. Moreover, the reviewing court "may not substitute its own judgment of the evidence for that of the administrative agency, but should review the whole record to determine whether there exists a rational basis to support the findings upon which the agency's determination is predicated." Purdy v. Kreisberg, 47 NY2d 354, 358. Indeed, "[t]he determination of an agency, acting pursuant to its authority and in its area of expertise, is entitled to deference." Nelson v. Roberts, 304 AD2d 20.
A rational or reasonable basis for an administrative agency determination exists if there is evidence in the record to support its conclusion. Sewell v. City of New York, 182 AD2d, appeal [*4]denied, 80 NY2d 756. Unless the reviewing court finds that the agency
acted in excess of its jurisdiction, in violation of a lawful procedure, arbitrarily, or in abuse of its discretion, the court has no alternative but to confirm the agency's decision. (See, Pell v. Bd. of Educ., 34 NY2d 222 at 231.)
DHPD's determination here was rational and reasonable. DHPD denied petitioner's appeal after a full review the entire administrative code and finding that petitioner failed to prove that she resided with her grandfather at the subject premises for the requisite two years.
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Accordingly, the petition is denied, and the within Article 78 proceeding is dismissed.
This constitutes the decision, order and judgment of the court.
Dated: April 1, 2005
______________________________
IRA B. HARKAVY
J.S.C.
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