Opinion
12233 Index No. 153890/19 Case No. 2019-04151
10-29-2020
In re Jennifer HALCOMB, et al., Petitioners, v. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, et al., Respondents.
Goetz L. Vilsaint, Bronx, for petitioners. James E. Johnson, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent.
Goetz L. Vilsaint, Bronx, for petitioners.
James E. Johnson, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent.
Renwick, J.P., Gesmer, Kern, Singh, JJ.
Determination of respondent New York City Department of Housing Preservation and Development (HPD), dated December 19, 2018, which denied petitioners' application for succession rights to the subject Mitchell–Lama apartment of which their mother had been tenant of record, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Arthur F. Engoron, J.], entered September 18, 2019), dismissed, without costs.
Supreme Court should not have transferred the proceeding to this Court, because it does not seek review of a determination "made as a result of a hearing held ... pursuant to direction by law" ( CPLR 7803[4] ; see Batyreva v. New York City Dept. of Educ. , 50 A.D.3d 283, 854 N.Y.S.2d 390 [1st Dept. 2008] ). Nevertheless, this Court will retain jurisdiction and review the proceeding in the interests of judicial economy (see Matter of Bigler v. Cornell Univ. , 266 A.D.2d 92, 93, 698 N.Y.S.2d 472 [1st Dept. 1999], lv dismissed 95 N.Y.2d 777, 710 N.Y.S.2d 837, 732 N.E.2d 944 [2000] ). On review, the proper standard is not substantial evidence, but whether the determination was rationally based in the record, and not arbitrary and capricious (see Matter of Kaufman v. Anker , 42 N.Y.2d 835, 836–37, 397 N.Y.S.2d 376, 366 N.E.2d 77 [1977] ; Matter of Storman v. New York City Dept. of Educ. , 95 A.D.3d 776, 778, 945 N.Y.S.2d 281 [1st Dept. 2012], appeal dismissed 19 N.Y.3d 1023, 951 N.Y.S.2d 718, 976 N.E.2d 247 [2012] ).
Here, HPD rationally concluded that petitioners failed to prove they resided in the apartment with the tenant of record as a primary residence for the two years prior to the record tenant's vacatur. The letter submitted by the primary tenant in support of the application contained statements that were both internally inconsistent and inconsistent with petitioners' statements in their application and with the supporting documents. Petitioners failed to present evidence establishing when the tenant of record had resided in the apartment as her primary residence with them and when she vacated, and thus could not establish that they had resided in the apartment with her for two years immediately preceding her vacatur (see Ryan v. New York City Dept. of Hous. Preserv. and Dev. , 173 A.D.3d 642, 642, 104 N.Y.S.3d 626 [1st Dept. 2019] ; Matter of Pietropolo v. New York City Dept. of Hous. Preserv. & Dev. , 39 A.D.3d 406, 406–407, 836 N.Y.S.2d 16 [1st Dept. 2007] ). Petitioners did not supply any New York City income tax return filed by the record tenant using the apartment's address, or proof that she was not obligated to file such a return (see 28 RCNY 3–02[n][4][iv]), any of the primary tenant's bank or utility statements, voter registration records (see Matter of Jacobowitz v. New York City Dept. of Hous. Preserv. & Dev. , 160 A.D.3d 417, 70 N.Y.S.3d 839 [1st Dept. 2018] ), or proof of her residency elsewhere as of a particular date. Petitioners' presentation of the income affidavits was insufficient, without more, to establish their entitlement to succession rights ( Pietropolo , 39 A.D.3d at 406–407, 836 N.Y.S.2d 16 ).
We have considered petitioners' remaining contentions and find them unavailing.