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

Matter of Sherman v New York State Div. of Hous. & Community Renewal 2016 NY Slip Op 07753 Decided on November 17, 2016 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 November 17, 2016
Acosta, J.P., Renwick, Moskowitz, Feinman, Kahn, JJ.
2222 101407/14

[*1]In re Richard Sherman, Petitioner-Appellant,

v

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

Herrera Law Firm, New York (Nicomedes Sy Herrera of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York (Bethany Davis Noll of counsel), for New York State Division of Housing and Community Renewal, respondent.

Gutman, Mintz, Baker & Sonnenfeldt, LLP, New Hyde Park (Moses Ginsberg of counsel), for Southbridge Towers, Inc., respondent.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered March 25, 2015, granting respondent New York State Division of Housing and Community Renewal's (DHCR) cross motion to dismiss the petition to annul DHCR's determination, dated July 31, 2014, which upheld the denial of petitioner's claim to succession rights to his deceased mother's apartment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The determination that the subject apartment was not petitioner's primary residence for at least two years prior to the death of his mother in November 2010 has a rational basis (see e.g. Matter of Martino v Southbridge Towers, Inc., 68 AD3d 412 [1st Dept 2009]). The record shows petitioner was not named on the income affidavits during the relevant time period and, other than an affidavit from a friend of petitioner's mother, who said that the apartment was petitioner's primary residence, petitioner failed to submit any other documentary evidence showing that the apartment was his primary residence (see Matter of Renda v New York State Div. of Hous. & Community Renewal, 22 AD3d 382 [1st Dept 2005]; see also 9 RCNY 1727-8.2[a][2]; compare Matter of Murphy v New York State Div. of Hous. & Community Renewal, 21 NY3d 649 [2013]). Furthermore, "persons seeking succession may only have one primary residence" (9 NYCRR 1727-8.2[a][2][ii]), and here, petitioner does not dispute that he frequently traveled to his home in California to take care of a family business, while also taking care of his mother in New York.

We have considered petitioner's remaining contentions, including that respondent Southbridge Towers should be estopped from contesting him succession, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2016

CLERK