Matter of Gramby v New York City Dept. of Hous. Preserv. & Dev.
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Matter of Gramby v New York City Dept. of Hous. Preserv. & Dev. 2013 NY Slip Op 32168(U) September 10, 2013 Supreme Court, New York County Docket Number: 65168/13 Judge: Cynthia Kern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. '/ IFILED: NEW YORK COUNTY CLERK 09/11/2013 [* 1] ~ ________________________ ~ ______ ~ INDEX NO. 651698/2013 _ _ _ _ _ _ _ _ _ _- J NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 09/11/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART _ __ PRESENT: Justice ---------------------~~, I " : : x Number: 651698/2013 INDEX NO. _ _ _ _ __ . GRAMBY, MILTON MOTION DATE _ _ __ ~EW YORK CITY DEPARTMENT OF MOTION SEQ. NO. _ __ Sequence Number: 001 i ARTICLE 78 . . " . \1R:"'Tollowmg'p~num6ered 1" to _ _ , were read on this motion to/for ___________________________ I No(s).,_ _ _ _ __ I No(s). _ _ _ _ _ __ I No(s). ________ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits ________________________________ Replying Affidavits _________________________________________ Upon the foregoing papers, it is ordered that this motion is . he annexed decision. is decided in accordance with t w () i= U) ..., ::l o l- e w 0:: 0:: W u.. W 0:: ¢. >- ...J~ ...J Z u.. U) ::l 0 I- () W 3; < W 0:: (!) W Z 0:: U) ;: - 0 U) ...J W ...J < () Z o i= o ::E 0 u.. W :I: I- 0:: 0 u.. __~e,--~~~~~~~__, . Dated: 1. CHECK ONE, ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢.. ¢ ¢. ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢. ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ J.S.C. ~ CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: [J GRANTED 3. CHECK IF APPROPRIATE: ................................................ ~" S· D DENIED D SETTLE ORDER [J DO NOT POST C~~"{~ 0 J.S, C , NON-FINAL DISPOSITION D GRANTED IN PART D OTHER D SUBMIT ORDER D FIDUCIARY APPOINTMENT D REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ----------------------------------------------------------------------x In the Matter of the Application of MILTON GRAMBY, Petitioner, Index No. 651698113 DECISION/ORDER For an Order Pursuant to Article 78 of the Civil Practice Law and Rules, -againstNEW YORK CITY DEPARTMENT OF HOUSING PRESERV ATION AND DEVELOPMENT, Respondent. ----------------------------------------------------------------------x HON. CYNTHIA S. KERN, J.S.c. Recitation, as required by CPLR 22 I 9(a), of the papers considered in the'review of this motion I for: -------------------------------------Papers Notice of Motion and Affidavits Annexed.................................... Answering Affidavits.................................................................... Replying Affidavits ..................................................................... . Exhibits. ...... ... ............ ... ........... ......... ....... ........... ... ..... ............ ... Numbered ;1 ~2 .13 Petitioner Milton Gramby brought the instant petition pursuant to' Article 78 of the Civil Practice Law and Rules ("CPLR") seeking to reverse a determination made by respondent New York City Department of Housing Preservation and Development ("HPD") denying petitioner's application for succession rights to a certain apartment. For the reasons set forth below, the i petition is denied. 1 The relevant facts are as follows. Lindsay Park Housing Corporation ("Lindsay Park") is an Article II housing company organized under the Private Housing Finance Law ("PHFL"), also [* 3] known as the Mitchell-Lama Law, and is the owner of the apartment located at 30 Montrose Avenue, Apt. 5F, Brooklyn, New York (the "subject apartment"). Catherine Taylor (the "tenant") became the tenant of record for the subject apartment on March 5, 1984. Since 2009, the tenant submitted income affidavits from calendar years 2009, 2010 and 2011 listing herself ! and plaintiff, her son, as the occupants of the subject apartment. The tenant died on September 7, 2012 and subsequently, petitioner submitted an application to Lindsay Park requesting succession rights to the subject apartment. By letter dated October 18,2012, Lindsay Park denied petitioner's request for successio~ rights to the subject apartment on the grounds that petitioner "[f]ailed to establish the required co-residency. Applicant's 2011 Social Security Benefit Statement states that applicant resided at 1000 Grand Concourse, Apt. 5-D, Bronx, NY" and the landlord's "skip trace report shows only the Bronx address for the applicant, and not Lindsay Park." The October 18, 20121etter advised petitioner that he may appeal the landlord's decision to HPD within thirty days. Lindsay Park also sent the denial letter to HPD. ; By letter dated October 18, 2012, HPD Hearing Officer Frances Lippa ("HO Lippa") I informed petitioner that she had received Lindsay Park's denial of petitioner's request for succession rights to the subject apartment. In the letter, HO Lippa stated that according to the HPD rules, an occupant must be included on the relevant income affidavits or income recertifications in order to be eligible for succession rights. The letter al~o advised that any appeal of Lindsay Park's denial must include proof that the applicant is a family member of the tenant and that the applicant co-resided with the tenant in the subject apartment as his primary residence for the required period, even if he had been included on the relevant income affidavits 2 [* 4] or income recertifications. The letter further informed petitioner that by November 26,2012, he should "submit as many of the listed succession documents as [he] can, since this is [his] only I " j opportunity to present [his] succession rights claim for administrative review." Additionally, HO Lippa informed Lindsay Park that if it wished to provide any additional documentation that it wanted HPD to consider, it must do so by November 26,2012. On November 19,2012, HPD received a letter from petitioner's former counsel Steven E. Ginsberg, dated November 14,2012, and documentation in support of petitioner's succession rights claim. Upon review of all the documentation submitted, HO Lippa rendered a decision dated March 26, 2013 denying petitioner succession rights to the subject apartment and issuing a Certificate of Eviction against the petitioner. HO Lippa found that althotigh petitioner was I included on the tenant's income affidavit for calendar year 2011, that inclusion was not sufficient as he still had to prove the required co-residency of one year in order to be granted succession rights. HO Lippa found that there was a significant lack of credible and sufficient documentation proving that petitioner resided in the subject apartment as his primary residence during the requisite co-residency period and that there was evidence that petitioner resided in the Bronx during the co-residency period instead. Additionally, HO Lippa found that the majority of petitioner's documents were either undated or dated after or before the r~quired co-residency period and that the documents addressed jointly to the tenant and petitioner were not considered i to be credible or sufficient proof. Therefore, HO Lippa found that petitioner failed to meet his burden of proving that he resided in the subject apartment as his primary residence during the required co-residency period and was thus not entitled to succession rights to the subject apartment. 3 [* 5] By a Notice of Petition and Verified Petition dated May 10,2013, petitioner commenced the instant proceeding seeking to (1) reverse HPD's March 26, 2013 decision denying him succession rights and vacate the Certificate of Eviction; or, in the alternative (2) remand this matter back to HPD and require "HPD to review petitioner's claim de novo and requir[e] HPD to hold an evidentiary hearing at which Petitioner may present further evidence in support of his claim for succession to the Subject Apartment;" and (3) stay any and all proceedings and/or actions enforcing the Certificate of Eviction and Notice of Termination against petitioner until a decision has been entered by this ~ourt. On review of an Article 78 petition, "[t]he law is well settled that the courts may not overturn the decision of an administrative agency which has a rational basis and was not arbitrary and capricious." Goldstein v Lewis, 90 A.D.2d 748, 749 (1 sl Dep't 1982)'. "In applying the 'arbitrary and capricious' standard, a court inquires whether the determination under review had a rational basis." Halperin v City of New Rochelle, 24 A.D.3d 768, 770 (2d Dep't 2005); see Pell v Board ofEduc. of Union Free School Dist. No. I of Towns ofScarsdale & Mamaroneck, Westchester County, 34 N.Y.2d, 222, 231 (1974)("[r]ationalityis what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard."). "The arbitrary or capricious test chiefly 'relates to whether a particular action should have been taken or is justified ... and whether the administrative action is without foundation in fact.' Arbitrary action is without sound basis in reason and is generally taken without regard to facts." Pell, 34 N.Y.2d at 231 (internal citations omitted). In the instant action, the court finds that HPD's decision denying petitioner's application I for succession rights to the subject apartment was made on a rational basis. HPD has established 4 [* 6] rules and regulations that set forth the requirements for family members seeking succession rights to a shareholder's lease ofa Mitchell-Lama apartment. First, the o'ccupant must be a qualified family member as defined by 28 RCNY § 3-02(p )(2)(ii). Second, where the person seeking succession rights is a senior citizen, the qualified family member! must have (a) resided with the tenant in the apartment as a primary residence, as defined in 28 RCNY § 3-02(n)(4), for ; a period of at least one year; and (b) appeared on the income affidavit for at least the reporting period immediately prior to the permanent vacating of the apartment by the tenant. Pursuant to 28 RCNY § 3-02(n)(4), in determining primary residence, HPD may consider, inter alia, (1) whether the family member specifies an address other than the subject apartment in a tax return, motor vehicle registration, driver's license or other document filed with apublic agency; (2) whether the family member gives an address other than the subject apartment as his or her voting address; and (3) whether the family member filed New York City tax ret~rns listing the subject apartment as his or her primary residence. Additionally, as proof that the subject apartment is his or her primary residence, the applicant must provide certified New York State income tax returns, utility bills and voter registration data. See 28 RCNY § 3-02(n)(4)(iv). In the instant action, it was rational for HPD to find that petitioner failed to prove his qualification for succession rights to the subject apartment. The relevant co-residency period I ended on September 7, 2012 when the tenant passed away. As petitioner is a senior citizen, the one-year co-residency period applies in this case. Accordingly, to be eligible for succession rights to the subject apartment, petitioner had to co-reside with the tenant at the subject apartment as his primary residence from September 7,2011 to September 7, 2012. However, respondent rationally found that the majority of petitioner's documents reflecting his:address as the subject 5 [* 7] apartment were undated, or dated before or after the required one-year co-residency period. I Further, respondent rationally found that documents such as a newspaper subscription and a telephone statement addressed jointly to petitioner and the tenant were not credible and did not consist of sufficient proof that petitioner himself actually resided in the subject apartment as his primary residence during the relevant one-year period. Petitioner provided limited documentation relevant to the required co-residency period including (1) a letter from Phillip Sohn, D.O., dated October 3, 2011 seeking that petitioner be excused from jury duty; (2) a form dated November 6, 2011 from the Human Resources Administration addressed to petitioner at the subject apartment; and (3) a copy of petitioner'S 2011 Individual Income Tax Refund issued on November 1,2012. However, petitioner failed to submit any bank statements, credit card statements, voter registration documents or Department of Motor Vehicle documents as proof that he occupied the subject apartment as his primary residence throughout the required coresidency period. Additionally, HO Lippa rationally relied on evidence that petitioner was residing in the Bronx during the co-residency period, including petitioner's two personal Apple Bank checks dated August 21,2012 and September 17,2012, which indicate that his address was 1000 Grand Concourse #50, Bronx, NY 10451. Furthermore, the "skip trace" report submitted by Lindsay Park links petitioner to the 1000 Grand Concourse address from January 1,2001 to September 2012. Thus, HPD rationally denied petitioner's request for succession rights to the subject apartment and properly issued a Certificate of Eviction against petitioner. Accordingly, the petition is denied and dismissed in its entirety. This constitutes the decision and order of the court. Dated: ~ h h? 0 Enter: __________ fi.uO)< l J.S.C. ~~4_------------ CYNTHIA 8m KERN 6 J.S.c.
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