Matter of Ayvazayan v City of N.Y. Dept. of Hous. Preserv. & Dev.

Matter of Ayvazayan v City of N.Y. Dept. of Hous. Preserv. & Dev. 2015 NY Slip Op 04929 Decided on June 11, 2015 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 June 11, 2015
Mazzarelli, J.P., Sweeny, Gische, Clark, JJ.
15382 100453/14

[*1] In re Marina Ayvazayan also known as Marina Vance, Petitioner,

v

The City of New York Department of Housing Preservation and Development, et al., Respondents.

Goldberg, Scudieri & Lindenberg, P.C., New York (Samuel Evan Goldberg of counsel), for petitioner.

Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for City of New York Department of Housing Preservation and Development, respondent.

Gallet Dreyer & Berkey, LLP, New York (Michelle P. Quinn of counsel), for East Midtown Plaza Housing Company, Inc., respondent.

Determination of respondents, dated December 23, 2013, issuing a certificate of eviction upon a finding that the apartment at issue was not petitioner's primary residence, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Paul Wooten, J.], entered June 13, 2014), dismissed, without costs.

Substantial evidence supports respondents' determination that the subject apartment was not petitioner's primary residence (see Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County , 34 NY2d 222, 230-231 [1974]). By submitting tax returns for 2008 through 2011 that listed two different addresses, petitioner failed to "provide[s] proof that ... she ... filed a New York City Resident Income Tax return at the claimed primary residence for the most recent preceding taxable year for which such return should have been filed" (28 RCNY 3-02[n][4][iv]). Petitioner's W-2 forms also showed two different addresses, and various other documents admitted into evidence at the hearing listed yet a third address. Moreover, the hearing officer found that petitioner's and petitioner's son's testimony was not credible, and that determination is entitled to deference (see Matter of Berenhaus v Ward , 70 NY2d 436, 443-444 [1987]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 11, 2015

CLERK