Matter of Chawalko v New York State Div. of Hous. & Community Renewal

[*1] Matter of Chawalko v New York State Div. of Hous. & Community Renewal 2009 NY Slip Op 50689(U) [23 Misc 3d 1109(A)] Decided on March 18, 2009 Supreme Court, New York County Diamond, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 18, 2009
Supreme Court, New York County

Matter of Ann Chawalko, Petitioner,

against

New York State Division of Housing and Community Renewal and SOUTHBRIDGE TOWERS, INC., Respondents.



103817/08



The petitioner was represented by Candace C. Carponter, P.C., of Manhattan. DHCR was represented by Assistant Attorney General Charles Sanders.

Marylin G. Diamond, J.

It is ordered that In this article 78 proceeding, the petitioner challenges a determination of the respondent DHCR, dated July 29, 2008, which denied her appeal from a decision by respondent Southbridge Towers, Inc., the housing company which operates the Mitchell-Lama building at 100 Beekman Street in Manhattan where she resides in Apartment 12-D, finding that she was not entitled to succeed to the tenancy of the apartment's named tenants, William and Pearl Brill.

Under the applicable regulations which DHCR has promulgated, an individual seeking to obtain succession rights to a Mitchell-Lama apartment must be either a family member by consanguinity or marriage or someone who can establish the existence of an emotional and financial commitment and interdependence between her and the named tenant. See 9 NYCRR § 1727-8.2(a)(2)(i) and (ii). Such an individual may succeed to the tenancy if (1) the named tenant either moves out of the apartment or dies, (2) the apartment was the applicant's primary residence for at least the two years immediately preceding the date the tenant vacated the apartment through death or otherwise and (3) the applicant had been listed on the tenant's income affidavit submitted annually to the housing company or on a form known as the Notice of Change to Tenant's Family as having resided in the apartment during the two-year period at issue. See 9 NYCRR § 1727-8.3(a).

Here, the petitioner claimed that she and the named tenants, the Brills, had developed an emotional and financial commitment and interdependence with each other beginning in or around 1975. She also claimed that she had resided in the Brills' apartment since the middle of 1996 and that the Brills had permanently vacated the premises in the middle of 1998, thus entitling her to succeed to their tenancy. [*2]

The petitioner's application to Southbridge was denied on May 19, 2006 on the ground that she was not a family member entitled to succeed to the Brills' tenancy. Her subsequent appeal to DHCR was dismissed on January 14, 2008 on the ground that it was untimely since it had not been field within 30 days of service of Southbridge's letter of denial. Petitioner then brought an article 78 proceeding against DHCR and Southbridge challenging this dismissal. On May 9, 2008, the parties executed a stipulation withdrawing the petition and remanding the matter back to DHCR for a determination on the merits. On July 29, 2008, DHCR issued a decision in which it reaffirmed its initial determination finding that the appeal was untimely. However, it went on to address the merits, finding that petitioner had failed to establish that she had (1) developed the type of interdependent relationship with the Brills which entitled her to succeed to their tenancy and (2) lived in the apartment for at least the two years immediately preceding the date the Brills vacated the apartment. The agency also rejected the petitioner's argument that Southbridge, having permitted her to continue to reside in the apartment after the Brills had vacated the premises even though her tenancy was open and notorious, had waived its right to deny her application to succeed to the Brills' tenancy. This article 78 proceeding then followed.

Discussion

The court need not address the petitioner's challenge to DHCR's determinations that her appeal was untimely and that she had failed to establish that she resided in the apartment for the two years immediately preceding the date the Brills vacated the premises since the court has otherwise concluded that DHCR's determination that petitioner did not have the requisite relationship with the Brills to succeed to their tenancy was reasonable and supported by the record.

The regulations which DHCR has promulgated set forth eight evidentiary factors which should be considered in determining whether the applicant has established the existence of an emotional and financial commitment and interdependence between her and the named tenants: the longevity of the parties' relationship; their sharing or relying upon each other for the payment of household or family expenses; the intermingling of finances; engaging in family-type activities; the formalization of legal obligations; holding themselves out as family members; regularly performing family functions; and engaging in any other pattern of behavior that evidences the intention of creating a long-term, emotionally committed relationship. See 9 NYCRR § 1727-8.2(a)(2)(ii)(a-h).

The evidence before the DHCR clearly suggested that the petitioner had a longstanding and close relationship with the Brills and, indeed, DHCR found as such. The evidence showed that the petitioner's family moved into an apartment in the Southbridge Towers project in or about 1975, when she was 23 years old, and the families apparently became quite close. The petitioner continued to reside with her family until she married and moved away in 1987. According to the petitioner, she moved in with the Brills in 1996 in order to care for both her grandmother, who lived nearby, and Pearl Brill, who had become ill.

Although the petitioner showed that she had a close relationship with the Brills, a close relationship is not, by itself, sufficient to establish, under the applicable regulations, a right to succeed to a Mitchell-Lama tenancy. As to the other indicia of an emotional and financial commitment and interdependence, the evidence was sparse. Thus, the petitioner failed to submit any evidence showing that she and the Brills intermingled their finances, formalized any legal obligations, held themselves out as family members other than representing to Southbridge that [*3]petitioner was the Brills' niece, or that they performed any family functions together other than her caring for Pearl Brill. Indeed, as DHCR pointed out, after the petitioner moved into the apartment, the Brills spent an ever-increasing amount of time in their second apartment in Florida, where they finally moved to as their permanent residence in 1998. Given this record, it was entirely reasonable for DHCR to conclude that petitioner had failed to establish the existence of an emotional and financial commitment and interdependence between her and the Brills which was sufficient to warrant, within the contemplation of the applicable regulations, her succession to their tenancy. Petitioner's argument to the contrary is without merit.

Petitioner, however, also argues that irrespective of the evidence, there are two grounds for annulling the challenged determination. First, she argues that Southbridge failed to give her proper notice of the basis of its denial of her succession claims, merely stating that she was not a family member, as that term is defined under the applicable regulations. Petitioner suggests that absent meaningful notice, she was deprived of her due process rights. This argument cannot be considered since it was not raised before DHCR and is improperly made for the first time in this article 78 proceeding. See In re McNeal v. Hernandez, 58 AD3d 417 (1st Dept 2009). In any event, even though Southbridge could have given more specificity, the petitioner was nevertheless provided with ample opportunity to ascertain and rebut the basis of the denial. Her argument that she was deprived of her due process rights is without merit.

The petitioner also argues that Southbridge should have been estopped from denying her application to succeed to the Brills' tenancy since it took more than seven years for the Southbridge to respond to her and the Brills' request that she succeed to their tenancy, during which time she continued to openly reside in the apartment without the Brills. However, as the respondents point out, the Court of Appeals has expressly held that the general rule that estoppel cannot be invoked against a governmental agency to prevent it from discharging its statutory duties is applicable to the strict guidelines for tenant eligibility and succession prescribed under the Mitchell-Lama Law, "regardless of any actions or acquiescence" by a particular housing company. See Matter of Schorr v. HPD, 10 NY3d 776, 778-779 (2008).

Accordingly, the petition is denied and the proceeding hereby dismissed.

The Clerk Shall Enter Judgment Herein

Dated: 3/18/09MARYLIN G. DIAMOND, J.S.C.

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