Opinion
402227/10.
March 16, 2011.
DECISION, ORDER and JUDGMENT
In this CPLR article 78 proceeding, pro se petitioner Elijah Boyd (Petitioner) seeks to reverse an order that denied his application for succession rights to his mother's apartment in a Mitchell-Lama building located at 2080 First Avenue in Manhattan. For the reasons below, the petition is denied.
BACKGROUND
Petitioner's mother, Leola Boyd, was the tenant of record in apartment 709 at 2080 1st Avenue. The building is owned by East River Landing 1199 Housing Corporation (1199 Housing), which is a company organized under Article II of the Private Housing Finance Law, also known as the Mitchell-Lama Law. The building is managed by respondent Marion Scott Real Estate, Inc.
The Mitchell-Lama Law was enacted to encourage the creation of housing for people of low and middle incomes by offering long-term, low interest financing and real estate tax exemptions. In exchange for financial assistance under the Mitchell-Lama Law, property owners accept limits on profits, and are subject to regulations concerning tenant income and tenant selection requirements. Respondent NYC Department of Housing Preservation and Development (HPD) is the City agency charged with overseeing compliance the Mitchell-Lama properties (New York City Charter § 1802[6][d]). Its duties include promulgating rules with respect to tenant selection and continued occupation of apartments (Rules of the City of New York, Title 28, Chapter 3), and supervision to ensure enforcement of those rules. These rules set forth the occupancy and succession rights of a tenant's family members (28 RCNY § 3-02 [o] [3] [I] and § 31-02 [p]).
Each year, the tenant of an apartment in a Mitchell-Lama building is required to provide affidavits certifying household income. A family member who is elderly or disabled, and who occupied the apartment for at least year before the named tenant dies, may qualify for succession rights to the apartment if he or she meets eligibility requirements and appeared as a resident in the household income certification (28 RCNY § 3-02 [p] [3]). A family member who does not appear on the household income certification cannot claim to be an occupant of the apartment for purposes of asserting succession rights in the event the named tenant dies.
In this proceeding, Petitioner alleges that he lived with his mother in apartment 709 at 2080 1st Avenue. He was born in 1939, and is considered a senior citizen under the Rules. By a letter dated February 28, 2009, Petitioner and his mother requested that petitioner be added to the family composition of record in the apartment. Petitioner's mother died on April 5, 2009.
According to a letter from the managing company, dated April 16, 2009, an "occupancy specialist" spoke to Petitioner regarding his request to be added to the apartment's household composition, and he informed the caller that his mother was very sick in the hospital and might not come home, and that he stated that he was not interested in the apartment. The April 16 letter states that the management company determined that he was not entitled to succession rights to the apartment.
Petitioner sought to establish his succession rights to the apartment with HPD (Verified Answer, Ex. F). By an order dated April 9, 2010, HPD hearing officer Frances Lippa found that Petitioner was not entitled to succession rights to the apartment, principally because he had not established that the apartment was his primary residence for at least one year before his mother died, and he was not included in the household income certification (Verified Answer, Ex. I). Petitioner commenced this Article 78 proceeding seeking to overturn HPD's April 9, 2010 determination.
He argues in part that HPD's determination is based in part on a verbal miscommunication. While not specified, it appears that he refers to the management company's April 16, 2009 letter, reporting that Petitioner had said he had no interest in the apartment. The HPD determination, however, makes no mention of a verbal miscommunication, and is based instead upon documentation provided by petitioner and the managing agent. Petitioner submitted documentation to support his claim, specifically copies of records showing that material from the New York City Retirement System (NYCERS), regarding his pension, were addressed to him at the apartment. The HPD hearing officer noted that he did not submit other material to support his claim, such as utility bills, voter registration, department of motor vehicles documentation, credit card bills or bank statements. Also, it is unrefuted that he was not included as a family member in any relevant household income certification by the tenant.
The court's review of an administrative determination is limited to those factors set forth in CPLR 7803. It is well settled that "a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion" ( Matter of Pell v Board of Education, of Union Free member (28 RCNY § 3-02[p] [3]). Petitioner provides no explanation for this failure. The HPD determination rationally adhered to the relevant rules, and it is not arbitrary or capricious. Accordingly, it hereby is
ORDERED and ADJUDGED that the petition is denied, and the proceeding is dismissed.