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

Matter of Matter of Gottlieb v New York State Div. of Hous. & Community Renewal 2011 NY Slip Op 09032 Decided on December 15, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 15, 2011
Tom, J.P., Friedman, Freedman, Richter, Manzanet-Daniels, JJ.
6363 110160/09

[*1]In re Stephen Gottlieb, Petitioner-Appellant,

v

New York State Division of Housing and Community Renewal, Respondent-Respondent, Southbridge Towers, Inc., Respondent.




Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New
York (Paul N. Gruber of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York (Patrick J.
Walsh of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.), entered June 17, 2010, denying the petition to annul respondent Division of Housing and Community Renewal's determination, dated March 20, 2009, that petitioner did not qualify for succession rights to the tenancy of his deceased father's Mitchell-Lama apartment, unanimously affirmed, without costs.

Petitioner did not submit income affidavits or a notice of change demonstrating that he lived in the subject apartment with his father for two years preceding his father's death in March 1994. To the contrary, the income affidavit that he submitted for 1992 notes that he began residing in the apartment "as of 10/1/92" — less than two years before his father died. Thus, DHCR's determination that petitioner failed to demonstrate that the apartment was his primary residence for two years before his father's death was rationally based in the record and was not arbitrary and capricious (see Taylor v New York State Div. of Hous. & Community Renewal, 73 AD3d 634 [2010]; Matter of Greichel v New York State Div. of Hous. & Community Renewal, 39 AD3d 421, 422 [2007]).

Notwithstanding that respondent Southbridge Towers, Inc. accepted maintenance payments from petitioner and permitted him to occupy the apartment for more than 13 years after his father died, estoppel cannot be invoked to prevent DHCR from carrying out its statutory duties (Matter of Schorr v New York City Dept. of Hous. Preserv. & Dev., 10 NY3d 776 [2008]; [*2]Taylor, 73 AD3d at 634).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2011

CLERK