Matter of Otero v Housing Preserv. & Dev.
Annotate this CaseDecided on March 26, 2018
Supreme Court, New York County
In the Matter of the Application of Jay A. Otero, Petitioner,
against
Housing Preservation and Development, Respondents.
102075/2015
Petitioner: appeared pro se
Attorneys for Respondent: Zachary W. Carter, Corporation Counsel of the City of New York, 100 Church Street, Admin Law Div., New York, New York, 10007, by Frances Polifione
Carmen Victoria St. George, J.
In this CPLR Article 78 proceeding, pro se petitioner Jay A. Otero seeks to challenge respondent Housing Preservation and Development's ("HPD") determination dated November 2, 2015 denying petitioner's request for succession rights to Apartment 617 at 2110 First Avenue, New York, New York, 10029 (the "Apartment"). HPD in their verified answer seeks to deny and dismiss the Article 78 petition. For the reasons stated below, the petition is denied.
Background
The relevant facts are as follows. East River Landing 119 Housing Corporation ("East River Landing") is a housing company organized under the Mitchell-Lama Law, and is the owner of the Apartment located at 2110 First Avenue. Petitioner's grandfather, Julio Reyes, was the tenant and shareholder of the Apartment from 1978 until he passed away on February 20, 2013. Subsequent to his grandfather's death, petitioner sought to obtain the succession rights to the Apartment from East River Landing. Among the documents petitioner included in support of his application for succession rights are as follows: (1) tenant's death certificate; (2) birth [*2]certificates of petitioner and his mother; (3) 2011 and 2012 HUD Owner Tenant Eligibility Compliance forms; and (4) New York City Housing Authority Section 8 income certification notifications for 2008, 2009, and 2010. Of note, petitioner's application also included a notarized letter from petitioner to East River Landing, sworn to on March 7, 2011, requesting that he be removed from the tenant's income affidavit because he was moving out of the Apartment and listed his new address as 18 Chauncey Place, Woodbury, New York, 11979.
By letter dated May 16, 2013, East River Landing requested that HPD review petitioner's application for succession rights and advise East River Landing if it should approve petitioner's request. On or about March 5, 2014, HPD informed East River Landing that petitioner had not met the requirements necessary to succeed the tenancy in that he failed to demonstrate that he was a family member of the tenant and that he had resided in the Apartment with the tenant during the required two-year co-residency period before the tenant died. HPD therefore recommended that East River Landing deny petitioner's request for succession rights. East River Landing adopted HPD's recommendation and notified petitioner that his request for succession rights to the Apartment was denied based on the grounds stated above.
In a subsequent letter dated March 26, 2014, HPD Hearing Officer Frances Lippa ("H.O. Lippa") informed petitioner that he could appeal East River Landing's decision and submit additional documentation in support of his appeal. H.O. Lippa's letter further stated that petitioner's appeal must include proof that petitioner was a family member of the tenant as defined by HPD rules, that he co-resided with the tenant of record in the Apartment as his primary residence for the required period prior to the death of the tenant, and that petitioner was included as an occupant of the Apartment on relevant income affidavits.
Petitioner appealed East River Landing's denial of succession rights and submitted the following documentation: his W-2 forms from 2009-2013 listing the Apartment as his address; a copy of petitioner's grandparents' Certificate of Marriage; a copy of petitioner's mother's obituary; an undated letter from petitioner's aunt stating that petitioner was the grandson of the tenant and that the petitioner had been living with the tenant; a copy of the tenant's NYCHA application dated July 7, 2005, stating petitioner was his grandson and lived with him in the Apartment; copies of petitioner's 2008, 2011, and 2012 taxes listing the Apartment as his address; and other supporting documents.[FN1] By letter dated May 15, 2015, East River Landing provided HPD with additional documents including a notarized letter from Janice Fuzzi, petitioner's aunt, sworn to on June 6, 2011, stating that petitioner was residing at her residence at 18 Chauncey Place, Woodbury, New York.
H.O. Lippa reviewed petitioner's documentation and in a decision dated November 2, 2015, affirmed East River Landing's denial of succession rights to the Apartment. H.O. Lippa found that petitioner established that he was the grandson of the tenant and therefore satisfied this requirement of succession in that he qualified as a family member according to HPD rules. However, H.O. Lippa found that there was a discrepancy between the documents reflecting petitioner residing at the Apartment and where the petitioner was actually residing during the co-residency period. In particular, H.O. Lippa noted petitioner's letter to East River Landing sworn [*3]to March 7, 2011, and Janice Fuzzi's letter, which was sent almost five months after the start of the co-residency period. These documents led H.O. Lippa to conclude that the Apartment was not petitioner's primary residence for the entire two years immediately preceding the death of the tenant. Moreover, H.O. Lippa explained that documents dated either before or after the required co-residency period were insufficient to prove that the subject apartment was the petitioner's primary residence during the statutorily defined co-residency period. As such, H.O. Lippa determined that petitioner failed to prove that he resided in the Apartment as his primary residence during the two years preceding the tenant's death, February 20, 2011 to February 20, 2013.
Petitioner asks this Court to reverse H.O. Lippa's determination in denying his request for succession rights to the Apartment. In its answer, HPD contends that its determination to deny petitioner succession rights is rational and in accordance HPD's rules and regulations.
In reply, petitioner maintains that while it was his intention to move out of the Apartment and move in with his aunt, he never actually moved out of the Apartment. Petitioner concedes that he slowly started moving his belongings to his aunt's home at 18 Chauncey Place around May and June of 2011. However, petitioner claims that his grandfather fell ill during this time frame and, as such petitioner decided to stay in the Apartment in order to take care of him. Petitioner points to the following documentation in support of his position: (1) his signed 2011 and 2012 HUD Owner Tenant Eligibility Compliance forms listing him as the "other adult" in the household; (2) his 2011 and 2012 Income Tax Returns addressed to him at the Apartment; (3) his unemployment benefit statement from April 2012 addressed to said Apartment; (4) his employment termination letter from April 2012 addressed to the Apartment; and (5) his 2011 and 2012 W-2 forms addressed to him at said Apartment. Petitioner contends that the above-mentioned documentation post-dates his March 2011 letter of intent to move out of the Apartment. Additionally, petitioner states that he went to East River Landing's management office and notified the manager that he was not going to move out of the Apartment. Therefore, petitioner argues, that he has submitted adequate proof to demonstrate that the Apartment was his primary residence for two years before his grandfather passed away.
Discussion
Generally, judicial review in an Article 78 proceeding is limited to whether the administrative determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR § 7803 (3); see Peckham v Calogero, 12 NY3d 424, 431 [2009]; Pell v Board of Educ., 34 NY2d 222, 231 [1974]. "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Peckham, 12 NY3d at 431; see Pell, 34 NY2d at 231). "If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency" (Peckham, 12 NY3d at 431; see Terrace Ct., LLC v New York State Div. of Hous. & Comm. Renewal, 18 NY3d 446, 454 [2012]).
In the instant action, the court finds that HPD's decision denying petitioner's application for succession rights to the Apartment was made on a rational basis. HPD has established rules and regulations that set forth the requirements for family members seeking succession rights to a shareholder's lease of a Mitchell-Lama Apartment. First, the person seeking succession rights must be a qualified "family member" as set forth in under 28 RCNY § 3-02(p)(2)(ii)(A). Second, the occupant must be included on any income documentation submitted to HPD for the last two [*4]consecutive years immediately prior to the tenant's permanent vacating of the apartment (28 RCNY § 3-02[p][3]). However, the submission of income affidavits identifying the petitioner as a resident does not, in and of itself, establish the existence of succession rights as a matter of law (see Matter of Pietropolo v New York City Dept. of Hous. Preserv. & Dev., 39 AD3d 406, 406-407 [1st Dept 2007]). Third, the family member seeking succession rights must have resided in the apartment with the former legal tenant for two years immediately prior to the tenant's permanent vacatur of the apartment (28 RCNY § 3-02[p][3]).
"The burden of proof is on said family member to show use of the apartment as his primary residence during the required period to be eligible to succeed to possession" (28 RCNY § 3-02[n][4][iv]). To determine an applicant's primary residence, HPD may consider, among other things, certified New York State income tax returns, utility bills, and voter registration data.
Although petitioner may disagree with the findings of H.O. Lippa, this Court is unable to find that the determination denying him succession rights was arbitrary or capricious. H.O. Lippa evaluated the evidence submitted and articulated rational reasons why petitioner failed to establish that he co-resided in his grandfather's apartment for the required two years before his death. While H.O. Lippa noted that petitioner did submit some documentation listing the Apartment as his address, it was the affirmative statements by petitioner and his aunt that raised doubts as to where petitioner was actually residing for the duration of the required two-year period. Inconsistent documentation contributes to an agency's reasons to refuse succession rights (Matter of Hochhauser v City of NY Dept. of House. Preserv. & Dev., 48 AD3d 288 [1st Dept 2008]). Here, the record reveals that H.O. Lippa rationally determined that because of the conflicting evidence regarding petitioner's residence, petitioner did not establish that the Apartment was his primary residence for the entire co-residency period of February 20, 2011 through February 20, 2013.
Accordingly, it is hereby
ORDERED and ADJUDGED that the petition to annul HPD's determination is denied and the proceeding is dismissed.
This constitutes the Decision and Order of the Court.
Dated: March 26, 2018
ENTER:
_______________________________________
CARMEN VICTORIA ST. GEORGE, J.S.C. Footnotes
Footnote 1: Although petitioner was instructed on how to appeal East River Landing's denial of his request for succession rights to HPD, petitioner never submitted an appeal to HPD. Instead, petitioner submitted his appeal to East River Landing. East River Landing then forwarded petitioner's appeal and supporting documentation to HPD.
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