Opinion
No. 5172.
February 5, 2009.
Determination of respondent Department of Housing Preservation and Development (HPD), dated September 7, 2006, which, after a hearing, granted respondent East Midtown Plaza Housing Co., Inc.'s request for a certificate of eviction, 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 [Judith J. Gische, J.], entered July 12, 2007) dismissed, without costs.
Jack L. Lester, New York, for petitioner. Gallet Dreyer Berkey, LLP, New York (Michelle P. Quinn of counsel), for East Midtown Plaza Housing Co., Inc., respondent.
Michael A. Cardozo, Corporation Counsel, New York (Cheryl Payer of counsel), for New York City Department of Housing Preservation and Development, respondent.
Before: Mazzarelli, J.P., Moskowitz, Renwick and Freedman, JJ.
Substantial evidence supports HPD's determination that petitioner failed to maintain the subject apartment as her primary residence, as required by the rules applicable to tenancies in Mitchell-Lama apartments ( see 28 RCNY 3-02 [n] [4]). Petitioner provided a Colorado address as her residence on a voting registration card completed in Colorado in 2004 and spent less than an aggregate of 183 days in the subject apartment in the calendar year preceding commencement of the eviction proceeding in November 2005 ( see 28 RCNY 3-02 [n] [4] [ii], [iv]). She admitted that she had not spent a night in the apartment since January 2002 and that in 2004 she had acquired a condominium in Colorado. Moreover, petitioner failed to provide a certified New York City resident income tax return for the year immediately preceding the commencement of the eviction proceeding or to show that she was not legally obligated to file such return ( see 28 RCNY 3-02 [n] [4] [iv]). Petitioner's claim that her prolonged physical absence from the apartment should be excused as medically required is unavailing.