Matter of 315 E. 72nd, St. Owners, Inc. v New York State Div. of Hous. & Community Renewal

Matter of 315 E. 72nd, St. Owners, Inc. v New York State Div. of Hous. & Community Renewal 2012 NY Slip Op 09175 Decided on December 27, 2012 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 27, 2012
Mazzarelli, J.P., Moskowitz, DeGrasse, Manzanet-Daniels, Clark, JJ.
8905 109077/11

[*1]In re 315 East 72nd, Street Owners, Inc., Petitioner-Appellant,

v

New York State Division of Housing and Community Renewal, et al., Respondents-Respondents.




Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New
York (Paul N. Gruber of counsel), for appellant.
Gary R. Connor, New York (Eu Ting-Zambuto of counsel), for
New York State Division of Housing and Community Renewal,
respondent.
Himmelstein McConnell Gribben Donoghue & Joseph, New
York (David Hershey-Webb of counsel), for Morton Drosnes,
respondent.

Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.), entered January 19, 2012, which denied the petition seeking to annul the determination of respondent State of New York Division of Housing and Community Renewal (DHCR), dated June 6, 2011, denying petitioner's application to deregulate a rent-stabilized apartment, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Supreme Court properly dismissed the petition seeking to annul DHCR's denial of petitioner's application for high-income rent deregulation. Contrary to petitioner's contention, DHCR was not required to conduct any further investigation prior to reaching its determination (see e.g. Matter of Classic Realty v New York State Div. of Hous. & Community Renewal, 298 AD2d 201 [1st Dept 2002]). The record before DHCR permitted it to rationally and reasonably find that respondent Morton Drosnes' daughter, Carrie, had been an occupant of the apartment on a temporary basis only in the two years preceding service of the income certification form (ICF), and had vacated the unit in April 2008, approximately one year prior to the March 3, 2009 service of the ICF. The operative date for determining occupancy is the date when the ICF is served (see Matter of 103 E. 86th St. Realty Corp. v New York State Div. of Hous. & Community Renewal, 12 AD3d 289, 290 [1st Dept 2004]; Matter of A.J. Clarke Real Estate Corp v New York State Div of Hous. & Community Renewal (307 AD2d 841 [1st Dept 2003]). DHCR properly denied the petition for high income deregulation as Carrie's income should not have been considered in the calculation of Drosnes' total household income (see Matter of Chatsworth Realty Corp. v New York State Div. of Hous. & Community Renewal, 56 AD3d 371 [1st Dept 2008]). [*2]

Petitioner's contention that DHCR improperly accepted Drosnes' unsworn statement regarding his daughter's occupancy lacks merit, as State Administrative Procedure Act § 306(1) provides, in part, that "[u]nless otherwise provided by any statute, agencies need not observe the rules of evidence observed by courts, but shall give effect to the rules of privilege recognized by law." Pursuant to State Administrative Procedure Act § 306(1), the burden of proof was on petitioner - as the party who initiated the proceeding — to establish that Drosnes' daughter did not reside in the apartment on a temporary basis.

Drosnes' supplemental response, made one day after the 60-day period, was the result of DHCR's request for clarification of his initial submission. Any delay may be properly excused (see Matter of Elkin v Roldan, 260 AD2d 197 [1st Dept 1999]), as New York City Administrative Code § 26—504.3(c)(1) does not divest DHCR of "authority to forgive a late filing or excusable default in the sound exercise of its discretion" (Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359, 371-372 [1999]).

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

ENTERED: DECEMBER 27, 2012

CLERK