Kaplan v New York City Dept. of Hous. Preserv. & Dev.

[*1] Kaplan v New York City Dept. of Hous. Preserv. & Dev. 2012 NY Slip Op 52073(U) Decided on November 5, 2012 Supreme Court, Kings County Edwards, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2012
Supreme Court, Kings County

Dana Kaplan, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

New York City Department of Housing Preservation and Development and Cadman Towers, Inc., Respondents.



11274/12



Petitioner was represented by Alan J. Firestone, Esq., 32 Court Street, BKNY. Respondent HPD was represented by Thuy Vu Nguyen, Esq., Assistant Corporation Counsel, 100 Church Street, NY, NY. Respondent Cadman Towers Inc. was represented by Jeanne-Marie Williams, Esq. of Kellner Herlihy Getty & Friedman, LLP, 470 Park Avenue, NY, NY.

Genine D. Edwards, J.

Respondent HPD opposed the petition via an answer and memorandum of law; respondent Cadman Towers, Inc. (Cadman Towers) submitted an answer and affirmation in opposition. Petitioner submitted an affirmation in further support of the petition.

The facts reveal that petitioner's parents, and petitioner's sister and her family resided at 101 Clark Street, Brooklyn, New York. Petitioner's parents live in apartment 24H. Petitioner's sister and her family lived in apartment 11C and, later, the subject premises, apartment 18H. Petitioner was listed as an occupant of apartment 18H on the relevant annual income affidavits.

Petitioner's sister and her family vacated apartment 18H on June 14, 2011. Petitioner applied to Cadman Towers for succession rights based upon her co-residency in the subject apartment from June 14, 2009 to June 14, 2011. In support of the application, petitioner provided many documents, including uncertified copies of her 2007-2009 tax returns, 2010 bank statements, a New York State driver's license dated May 20, 2010, a New York State motor vehicle registration dated April 21, 2010, a social security card issued February 2010, a Certificate of Marriage and Certificate of Birth dated 2010, correspondence from the Teachers' Retirement System of the City of New York dated 2009, and other miscellaneous correspondence. [*2]

After receiving petitioner's documents and conducting its own investigation, Cadman Towers rejected petitioner's claim on July 27, 2011. It found that petitioner failed to prove that apartment 18H was her primary residence. On August 17, 2011, petitioner requested a formal appeal to HPD. She annexed additional documentation including, but not limited to, a certified copy of her 2008 tax return and a transcript of her 2009 tax return, numerous affidavits from third parties, a printout from the Board of Elections with an inactive date of June 2010, correspondence from the Therapy and Learning Center dated August 2011, and 2008-2010 vouchers from Challenge and Early Intervention.[FN1] On April 10, 2012, HPD upheld Cadman Tower's denial of petitioner's succession rights and issued a certificate of eviction. Pursuant to its rules, HPD found that petitioner failed to demonstrate that apartment 18H was her primary residence.

It is well established law that judicial review of an agency's determination is limited to whether the determination was arbitrary and capricious or an abuse of discretion or made in violation of a lawful procedure or was affected by an error of law. CPLR 7803; Flacke v. Onondaga Landfill Systems, Inc., 69 NY2d 355, 514 N.Y.S.2d 689 (1987); Matter of Pell, 34 NY2d 222, 356 N.Y.S.2d 833 (1974); Halperin v. City of New Rochelle, 24 AD3d 768, 809 N.Y.S.2d 98 (2d Dept. 2005); Felton v. Halperin, 228 AD2d 595, 644 N.Y.S.2d 536 (2d Dept. 1996).

Apartment 18H is located in a Mitchell-Lama housing complex. Mitchell-Lama housing provides affordable housing to moderate and middle income families. To obtain an apartment, one must be on a waiting list for many years or be granted succession rights. Right of succession requires the person to be a family member, reside in the subject premises with the tenant for two years prior to the tenant's vacatur, and be documented on the income affidavits for at least two consecutive annual reporting periods prior to the tenant's vacatur. 28 RCNY 3-02(p). To be eligible to succeed to possession, the burden is on the family member to show use of the apartment as his or her primary residence during the required period. 28 RCNY 3-02(p)(3). The family member must provide certified tax records for the subject premises in order to demonstrate that the unit is his or her primary residence. 28 RCNY 3-02(n)(4).

Based upon the foregoing rules, this Court finds that petitioner sufficiently established family member status and was included on the relevant annual income affidavits. These two factors, however, did not absolve petitioner from demonstrating that apartment 18H was her primary residence. Alfred v. Barrios-Paoli, 251 AD2d 659, 676 N.Y.S.2d 185 (2d Dept. 1998). HPD's rules require Aa New York City Resident Income Tax return at the claimed primary residence for the most recent preceding taxable year. 28 RCNY 3-02(n)(4)(iv). In this case, petitioner's 2010 tax return would be the most recent; petitioner failed to proffer same. Instead, she proffered to HPD a 2009 tax return transcript that listed apartment 24H as her primary residence. That address contradicted the 2009 uncertified tax return petitioner submitted to [*3]respondent Cadman Towers, which listed apartment 18H as her primary residence. Petitioner's tax records alone preclude her from establishing primary residency, thus, the hearing officer could have ended the inquiry.

The hearing officer, however, reviewed all of petitioner's documentation during the co-residency period, June 14, 2009-June 14, 2011, and determined the documentation was replete with inconsistencies. Petitioner's New York State driver's licenses, one issued in February 2010, listed apartment 24H and the other, issued in May 2010, listed apartment 18H. Petitioner's voter registration information listed her address as apartment 24H in November 2009 and apartment 18H in 2011. Bank statements, dividend statements, and brokerage account statements dated 2009 and 2010 stated petitioner's address was apartment 11C. These inconsistencies may be considered when determining primary residency. 28 RCNY 3-02(n)(4)(i)-(ii). Moreover, the hearing officer has the discretion to find affidavits provided on behalf of petitioner to be unpersuasive and insufficient. Matter of Pell, 34 NY2d at 232.

This Court finds that HPD's determination was properly founded upon the evidence submitted. Indeed, petitioner failed to establish that apartment 18H was her primary residence as required by HPD's rules.

Accordingly it is, ADJUDGED that the petition is denied. The proceeding is dismissed.

This constitutes the decision, order and judgment of this Court

ENTER,

_______________________

Genine D. Edwards

A.S.C.J. Footnotes

Footnote 1: Having been given the list of acceptable proof of residency, including employment records like W-2 forms, one wonders why petitioner failed to proffer any records from her primary employer, the New York City Board of Education.