Opinion
2011-11-17
Adam BELOK, Petitioner–Appellant, v. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, et al., Defendants–Respondents.
Lewis & Greer, P.C., Poughkeepsie, (Veronica A. McMillan of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Alyse Fiori of counsel), for New York City Department of Housing Preservation and Development, respondent.
Lewis & Greer, P.C., Poughkeepsie, (Veronica A. McMillan of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Alyse Fiori of counsel), for New York City Department of Housing Preservation and Development, respondent. Barry Mallin & Associates, P.C., New York (Michael Schwartz of counsel), for Mutual Redevelopment Houses, Inc., respondent.MAZZARELLI, J.P., SWEENY, MOSKOWITZ, ACOSTA, ABDUS–SALAAM, JJ.
Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), entered December 29, 2009, which denied petitioner's application to annul a determination of respondent New York City Department of Housing Preservation and Development (HPD), dated March 16, 2009, denying petitioner succession rights to the subject cooperative apartment and issuing a certificate of eviction against petitioner, and dismissed this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs. Order, same court (Saliann Scarpulla, J.), entered November 15, 2010, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to renew and reargue, deemed to be an order denying a motion only to reargue, and, so considered, the appeal therefrom unanimously dismissed, without costs, as taken from a nonappealable order.
The determination that petitioner did not sustain his burden of establishing his entitlement to succession rights to his deceased parents' apartment had a rational basis in the record ( see Matter of Quan v. New York City Dept. of Hous. Preserv. & Dev., 70 A.D.3d 528, 895 N.Y.S.2d 75 [2010], lv. denied 17 N.Y.3d 703, 2011 WL 2314418 [2011]; Matter of Hochhauser v. City of N.Y. Dept. of Hous. Preserv. & Dev., 48 A.D.3d 288, 853 N.Y.S.2d 22 [2008] ). The governing regulatory agreement required that persons seeking succession rights be listed on annual income affidavits for the two years prior to the departure of the cooperator of record. Petitioner's mother died in August 2007, and he concedes that he did not provide the Hearing Officer with a copy of an income affidavit for calendar year 2006. Petitioner's submission of a copy of the affidavit with his article 78 petition is unavailing, since review of an agency determination is limited to the “facts and record adduced before the agency” ( Matter of Yarbough v. Franco, 95 N.Y.2d 342, 347, 717 N.Y.S.2d 79, 740 N.E.2d 224 [2000] [internal quotation marks and citation omitted] ). In any event, even apart from the missing income affidavit, the documentary evidence reviewed by the Hearing Officer contained numerous inconsistencies relating to petitioner's address, including inconsistencies in the addresses given in tax returns filed by petitioner during the relevant time period ( see Hochhauser, 48 A.D.3d at 289, 853 N.Y.S.2d 22).
Petitioner was not entitled to an evidentiary hearing. The regulatory agreement under which he sought succession rights does not provide for a hearing, and the procedures adhered to by HPD afforded petitioner due process ( see Quan, 70 A.D.3d at 528, 895 N.Y.S.2d 75). The evidence petitioner claims he would have provided at an evidentiary hearing could have been provided as documentary evidence, and petitioner does not assert that he was denied an opportunity to submit such evidence ( see Matter of Mayfield v. Esplanade Gardens, Inc., 30 A.D.3d 296, 817 N.Y.S.2d 275 [2006], appeal dismissed 7 N.Y.3d 864, 824 N.Y.S.2d 607, 857 N.E.2d 1138 [2006] ).
The record does not support petitioner's claim that HPD or Supreme Court discriminated against him because he lived in the subject apartment while his wife and children lived in Dutchess County. HPD and the court merely found that petitioner had not proven that he engaged in that living arrangement for the relevant time period.
Petitioner's motion to renew and reargue raised no new facts and is therefore properly viewed as one for reargument only, the denial of which is not appealable ( Pizarro v. Evergreen Estates Hous., 5 A.D.3d 143, 143–144, 772 N.Y.S.2d 508 [2004] ).