Opinion
10-25-2016
In re Clarence HORNE, Petitioner–Appellant, v. Matthew M. WAMBUA, etc., et al., Respondents–Respondents.
William E. Leavitt, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Marta Ross of counsel), for respondents.
William E. Leavitt, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Marta Ross of counsel), for respondents.
TOM, J.P., MAZZARELLI, RICHTER, MANZANET–DANIELS, WEBBER, JJ.
Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered November 26, 2013, denying the petition to annul a determination of respondent Department of Housing Preservation and Development (HPD), dated April 8, 2013, which denied petitioner succession rights to a Mitchell–Lama apartment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The determination denying petitioner succession rights to the subject apartment has a rational basis in the record and was made in accordance with lawful procedure (CPLR 7803 ). Petitioner failed to demonstrate that the apartment was his primary residence from the inception of his late wife's tenancy (less than two years before her death) and that he was listed on the income affidavit submitted during that time period ( 28 RCNY 3–02[p][3]; Yunayeva v. Kings Bay Hous. Co., Inc., 94 A.D.3d 452, 453, 941 N.Y.S.2d 591 [1st Dept.2012] ). Petitioner did not submit any of the suggested proofs of primary residency, such as bank statements, voter registration statements, or bills addressed to him at the apartment, and the affidavits and 2011 W–2 form that he submitted do not conclusively establish co-residency during the relevant time period (see Matter of Hochhauser v. City of N.Y. Dept. of Hous. Preserv. & Dev., 48 A.D.3d 288, 853 N.Y.S.2d 22 [1st Dept.2008] ).
Petitioner “may not invoke the doctrine of estoppel to ‘prevent HPD from executing its statutory duty to provide Mitchell–Lama housing only to individuals who meet the specified eligibility requirements' ” (Matter of Quinto v. New York City Dept. of Hous. Preserv. & Dev., 78 A.D.3d 559, 559–560, 913 N.Y.S.2d 23 [1st Dept.2010], quoting Matter of Schorr v. New York City Dept. of Hous. Preserv. & Dev., 10 N.Y.3d 776, 857 N.Y.S.2d 1, 886 N.E.2d 762 [2008] ). Nor is he entitled to an evidentiary hearing since HPD's procedures pursuant to its regulations for determining succession rights satisfy due process (see Matter of Hochhauser, 48 A.D.3d at 289, 853 N.Y.S.2d 22 ; Matter of Pietropolo v. New York City Dept. of Hous. Preserv. & Dev., 39 A.D.3d 406, 407, 836 N.Y.S.2d 16 [1st Dept.2007] ).