Matter of Meyers v New York State Div. of Hous. & Community Renewal
Annotate this CaseDecided on March 24, 2009
Supreme Court, Albany County
In the Matter of the Application of Joel Meyers, Petitioner,
against
New York State Division of Housing And Community Renewal; DEBORAH VAN AMORENGEN, in her official capacity and individually, Respondents.
10184-08
APPEARANCES:
Aaron David Frishberg, Esq.
Attorney for Petitioner
116 W. 11th Street
New York, New York 10026
Andrew M. Cuomo, Esq.
Attorney General of the State of New York
Attorney for the Respondents
(Robert Blum, Esq. AAG)
The Capitol
Albany, New York 12224
Joseph C. Teresi, J.
Since at least 1996, petitioner, an allegedly disabled individual, has been living
in his father's apartment. The apartment is located within Southbridge Towers, which is a
housing cooperative that provides housing at below market rates to its leaseholders. Southbridge
Towers is organized under the Private Housing Finance Law and regulated by respondents.
Petitioner applied to Southbridge Towers to succeed his father's leasehold interest, as his father
passed away in 1995. Petitioner's application was denied, and on administrative appeal,
respondents likewise denied his appeal. Petitioner now brings this Article 78 proceeding,
claiming respondents' denial was arbitrary and capricious. Respondents answered the petition,
seeking its [*2]dismissal. Because respondents' application of its
rules and regulations to petitioner's succession application was affected by an error of law, it was
arbitrary and capricious, and is reversed.
This proceeding challenges the respondents' interpretation of its own regulation, and is in the nature of a mandamus to review. "The standard of review in such a proceeding is whether the agency determination was arbitrary and capricious or affected by an error of law." (Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758 [1991]). This Court's review is limited to the grounds "invoked by the agency" in its determination. (Matter of Scherbyn, supra at 758).
"It is axiomatic that deference should be given to an administrative agency's interpretations of its own regulations." (Medina v. Building Maintenance Service, 302 AD2d 774 [3d Dept. 2003]). "However, when the interpretation runs counter to the clear wording of the regulatory provisions, it should not be given any weight." (Hickey v. Sinnott, 277 AD2d 572 [3d Dept. 2000] internal quotations and citations omitted). Here, 9 NYCRR §1727-8.3(a) states: ...if the tenant has permanently vacated the housing accommodation, any member of such tenant's family, as defined in section 1727- 8.2(a)(2) of this Subpart,[-] who has resided with the tenant in the housing accommodation as a primary residence for a period of not less than two years,[-] has been listed on the income affidavit and/or on the Notice of Change to Tenant's Family as required under section 1727-3.6 of this Part,
[-] or [-] where such person is a senior citizen or a disabled person as defined in section 1727- 8.2(a)(3) and (4) of this Subpart, respectively, for a period of not less than one year, immediately prior to the permanent vacating of the housing accommodation by the tenant, or from the inception of the tenancy or commencement of the relationship, if for less than such periods,
may request to be named as a tenant on the lease and on the stock certificate. (emphasis
added) The regulatory text is unambiguous. By including the word "or" it plainly provides for a disjunctive reading of its several parts. (Daimler chrysler Corporation v. Spitzer, 26 AD3d 88 [3d Dept. 2005]; McKinney's Cons. Laws of NY Book 1, Statutes §235 [comment stating "[u]se of the conjunction or' in a statute usually indicates that the language is to be construed in an alternative sense"]).
Respondents' denied petitioner's appeal in its August 12, 2008 Order Denying Appeal, by wrongly interpreting 9 NYCRR §1727-8.3(a). The respondents' interpretation, failed to recognize the disjunctive nature of the regulation. Respondents' Order Denying Appeal quotes the regulation and inserts a bracketed "[and]" between its parts, which is simply not part of the text. Respondents incorrectly stated that "[o]nly claimants who prove that they meet all three requirements are eligible to succession rights." They went on to deny petitioner's succession rights by stating that because his "name does not appear on any of the Apartment's annual affidavits preceding the Tenant's death... the Applicant cannot obtain succession rights regardless of which qualification period applies." Petitioner's succession rights were foreclosed, under the [*3]respondents' interpretation, because he failed to sign and file annual income verifications for his father's apartment, prior to his father's passing.
Properly reading the regulation in the disjunctive, however, no such requirement is stated. A petitioner may prove succession rights by proof of family status, with the first two parts of the regulation "or" the third part. The portion of the regulation applicable to this petitioner requires him to demonstrate: (1) that he was a member of the tenant's family, and (2) that he was a disabled person for a period of not less than one year, immediately prior to the tenant's death.
Southbridge Towers acknowledged that petitioner was tenant's son, and as such is a member of the tenant's family. (9 NYCRR §1727-8.2[a][2]). Relative to petitioner's "disability" status, respondents found that petitioner failed to demonstrate "disability". However, such finding was premised upon a fundamental misreading of the regulation. Respondents failed to read the "disability" part of the regulation as a separate inquiry from the annual income affidavit part. With such error of law affecting respondents' denial of petitioner's appeal, the respondents' determination was arbitrary and capricious.
Accordingly, the petition is granted and the matter is hereby remanded to the respondents for further proceedings in accord with this Decision and Order.
Petitioner's remaining contentions have been examined and found to be lacking in merit or, considering the above, moot.
All papers, including this Decision and Order, are being returned to the attorney for the
petitioner. The signing of this Decision and Order shall not constitute entry or filing under CPLR
§ 2220. Counsel are not relieved from the applicable provisions of that section
respecting filing, entry and notice of entry.
So Ordered.
Dated: March, 2009
Albany, New York________________________________
JOSEPH C. TERESI, J.S.C.
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