Matter of Hampton v Division of Hous. & Community Renewal
Annotate this CaseDecided on August 15, 2005
Supreme Court, New York County
In the Matter of the Application of Kyle Hampton, Petitioner,
against
Division of Housing and Community Renewal and NORTHTOWN ROOSEVELT ASSOCIATES, Respondents.
109565/05
Joan A. Madden, J.
In this Article 78 proceeding, petitioner Kyle Hampton challenges the determination of respondent New York State Office of Housing and Community Renewal (DHCR), denying his request for succession rights, and a lease in his own name, for Apt. No.136 located at 540 Main Street, New York, New York, 10044.
In reviewing an administrative determination, the Court must consider whether the agency's determination had a rational basis or whether it was arbitrary and capricious. CPLR 7803; Matter of Colton, 21 NY2d 322 (1967); Matter of Pell v. Board of Education, 34 NY2d 222 (1974). The reviewing court does not examine the facts de novo to reach an independent determination. Rather, the reviewing court must defer to the administrative fact finder's assessment of the evidence. Lindemann v. American Horse Shows Ass'n., 222 AD2d 248, 250
(1st Dept 1999). If the challenged determination is rational, it must be upheld, even though the Court, if viewing the case in the first instance, might have reached a different conclusion. Mid-State Management Corp. v. Conciliation & Appeals Board, 112 AD2d 72, aff'd 66 NY2d 1032 (1985).
Petitioner is seeking succession rights pursuant to DHCR's regulations for State-supervised limited-profit housing companies organized under Article II (also know as the "Mitchell-Lama Law") of New York State's Private Housing Finance Law. Those regulations set out the requirements that must be satisfied when a family member of a tenant is seeking to succeed to a tenancy and obtain a lease in his or her own name. 9 NYCRR §§1727-8.2, 1727-8.3.
DHCR's final determination denying petitioner's appeal, found that petitioner did not qualify for succession rights, as he failed to establish that he was a "family member" of the tenant [*2]within the regulations' two definitions of that term under 9 NYCRR §1727-8.2(a)(2), and failed to show that he was listed as an occupant of the apartment on the income certifications submitted by the tenant of record, during the two-year period immediately prior to her vacating the apartment, as required under 9 NYCRR §1727-8.3(a).
In the petition, petitioner, pro se, contends that his constitutional rights were violated when DHCR issued its decision denying his appeal, stating that he never responded by the November 4, 2004 deadline for submitting a reply to the landlord's answer.[FN1] Petitioner alleges that his due process rights were violated as he did submit a timely response which included
certain documents, and that DHCR admits it failed to consider such documents in reply. When the parties appeared for argument on the petition, this Court directed petitioner to provide the Court and the parties with copies of the papers he claims he timely submitted to DHCR in his reply.
Petitioner's papers in reply consist of a three-page letter from petitioner which is dated November 1, 2004, and is neither signed nor sworn. Annexed to the letter are copies of the following documents: 1) a September 8, 2004 affirmation that the landlord's attorney submitted to DHCR in opposition to petitioner's request for succession rights; 2) a report from the Roosevelt Island Housing Management Corporation (the "Housing Company"), dated July 15, 2004, regarding petitioner's unauthorized occupancy of the apartment and the agreement by Ms. Baba, the tenant of record of the apartment which petitioner shared, to move to a one-bedroom apartment and to enter into an in-house payment plan to pay the amount of $22,080 (a debt she acknowledges resulted from income from an unreported household member, i.e. petitioner), in monthly installments of $371; 3) a copy of the in-house payment plan signed by Ms. Baba and dated July 14, 2004, in which she acknowledges owing a debt of $22,080 and agrees to move immediately into a one-bedroom apartment; 4) an August 2, 2004 letter from the Housing Company to counsel, authorizing the commencement of a summary holdover proceeding against Mr. Hampton, "the tenant's unauthorized roommate"; and 5) a hand-written statement by Mr. Hampton, dated May 16, 2004, on the Housing Company's stationery, that he has been residing in the subject apartment since April 1, 1997 and paying monthly rent of $425, and stating that his annual income ranges from $20,000 to $30,000. Petitioner also submits a copy of check dated
June 14, 2005, in the amount of $1,521, payable to North Town Roosevelt Associates, with the notation "Re: Kyle Hampton." With the exception of petitioner's three-page letter, the documents which petitioner claims DHCR failed to consider are all included as part of DHCR's administrative return, and as such, were part of the record before DHCR when it determined petitioner's request for succession rights.
In opposition to the petition, DHCR submits an affirmation acknowledging that petitioner's response and the annexed documents were delivered to and received by DHCR, but "for reasons unknown, petitioner's mailing was somehow misplaced, and it was never received [*3]into the Administrative file." DHCR has now reviewed petitioner's submission, and asserts that "the additional material does not overcome the legal effect of his failure to be listed on the income certifications." DHCR further argues that petitioner has failed to demonstrate the existence of a familial relationship with the tenant of record, as he refers to Ms. Baba as his "roommate" or "former roommate."
After considering the administrative record and the totality of petitioner's submissions, including the submission which DHCR originally neglected to consider, the Court must conclude that DHCR's determination denying petitioner's application for succession rights, had a rational basis, and was not arbitrary, capricious, nor in violation of law. As petitioner was not the tenant of record, but claims succession rights based upon his residency with Ms. Baba, and as Ms. Baba has voluntarily moved to another apartment, it cannot be said that petitioner has succession rights independent of Ms. Baba. Furthermore, as noted above, with the exception of petitioner's November 1, 2004 letter, DHCR had copies of the documents in petitioner's reply. Thus, even though DHCR admits not reviewing his reply submission, for the foregoing reasons and for the reasons below, consideration of the reply submission would not render DHCR's decision arbitrary and capricious.
Under DHCR succession rights regulations, 9 NYCRR §1727-8.3(a), petitioner was required to make a three-part showing that: 1) he was a member of the tenant's family within the meaning of regulation section 1727-8.2(a)(2); 2) he resided with the tenant of record in the apartment as a primary residence for a period of not less than two years; and 3) he was listed on the income affidavit and/or on the Notice of Change to Tenant's Family as required under section 1727-3.6 of the regulations.
The record is devoid of any evidence that petitioner was listed on the income affidavit and/or the Notice of Change to Tenant's Family. Absent petitioner's inclusion in the tenant's income certifications, even with petitioner's letter which DHCR failed to consider, petitioner is not qualified for succession rights, independent of Ms. Baba's tenancy. 9 NYCRR §1727-8.3. [FN2]
In addition, while petitioner argues in his November 1, 2004 letter in reply, that the agreement between Ms. Baba and the Housing Company that she would pay the Housing Company $22,080 based on the income statement submitted by the petitioner, is evidence that he lived in the apartment for seven years, such proof alone does not vitiate the requirement that petitioner be listed in the income certification. Similarly, petitioner's statements, in the letter, concerning his relationship with Ms. Baba are insufficient to raise the issue of family relationship where Ms. Baba has moved to another apartment, and absent proof that petitioner was named on the income certification or on the Notice of Change in Tenant's Family, so as to render the agency's decision
arbitrary or capricious. See Gee v. New York City Housing Authority, 276 AD2d 444 (1st Dept 2000).
Accordingly, it is hereby [*4]
ORDERED AND ADJUDGED that the petition is denied and the proceeding is dismissed.
This constitutes the decision, order and judgment of the Court.
DATED: August 15, 2005ENTER:
______________________
J.S.C.
Footnotes
Footnote 1:The specific statements in the DHCR's decision, read as follows: "On October 5, 2004, the DHCR gave the Applicant [petitioner] notice of the Housing Company's answer and a chance to reply. However, the Applicant did not respond."
Footnote 2:In light of this determination, the Court need not resolve any question as to the timeliness of this proceeding.
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