Opinion
400202/11.
Decided June 15, 2011.
Cardozo Bet Tzedek Legal Services for Petitioner.
Barry Mallin Associates, P.C. for respondent Mutual Redevelopment Houses, Inc.
New York City Law Department for respondents Cestero and HPD.
Eleanor Herman ("Petitioner") brings this Article 78 challenging the September 27, 2010 determination of the New York City Department of Housing Preservation and Development ("HPD"), which denied her application for succession rights to Apartment 3A of 311 West 24th Street in New York County. According to the Petition, Albert Cohen was the tenant of the subject apartment from August 13, 1980 until his death on March 27, 2007. Petitioner, a 69 year-old woman, states that she moved into the apartment full-time and lived there with Cohen from 2003 until his death. She first met Cohen at a Jewish center in January 1982; they began to routinely attend together and, as their relationship developed, Petitioner began staying at Cohen's apartment "for a few days every week." Petitioner further claims that she and Cohen requested that the landlord add her to the lease. However, "[t]he request was denied without explanation."
Although never formally married, Petitioner states that she and Cohen were both financially and emotionally committed and interdependent. For example, She and Cohen shared household expenses and held two joint bank accounts together, from which they jointly paid rent, cable and other utilities. Petitioner notes that their joint checking account statements were mailed to Cohen and her at the subject apartment. With respect to their emotional bond, Petitioner states that she and Cohen would routinely care for one another if the other fell ill. She routinely took Cohen to doctors' appointments and help him perform daily functions when his health began to decline in 2003. They also traveled together, often enjoying museums, parks and zoos. Petitioner further states that she and Cohen held themselves out as a family unit to their families, their community, and their synagogue.
When Cohen died, Petitioner was listed as Cohen's "domestic partner" on his death certificate. Cohen named Petitioner as executor of his will, and "bequeath[ed] the apartment and all its contents, as well as fifty percent of the remainder of his estate to her."
Petitioner applied for succession rights to respondent Mutual Redevelopment Houses, Inc. ("Mutual"), owner of the building. By letter dated April 12, 2010, Mutual denied her application. Mutual found that (1) Petitioner was not a "family member" as that term is defined by Section 210(a)(i) or (ii) of the governing Amendatory Agreement ("Agreement") between Mutual and the City of New York; (2) Petitioner was not listed on at least two consecutive income affidavits for the period prior to Cohen's death, as required by Section 210(d)(iii) of the Agreement; and (3) Petitioner failed to prove that the subject apartment was her primary residence.
On June 7, 2010, Petitioner filed an appeal with HPD, submitting correspondence from her attorney, her affidavit, and documentary evidence in support of her claim.
As noted above, HPD denied Petitioner's appeal for succession rights by way of a decision dated September 27, 2010. In her decision, Administrative Hearing Officer ("AHO") Frances Lippa noted that the issue of whether Petitioner was entitled to succeed Cohen to the apartment was governed by Section 210(a)(ii) of the Agreement. That section provides, in relevant part, as follows:
210. Occupancy Rights of Family Members.
(a)Tenant/cooperator(s) and Family Members of tenant/cooperator(s) as defined herein, shall have the right to occupy the tenant/cooperator(s)' apartment subject to the following qualifications:
For purposes of this Paragraph 210, "Family Members" shall mean:
(ii)any . . . person 18 years of age or older who at the time determination of such status is made has been residing with the tenant/cooperator(s) in the apartment as a primary residence ( as delineated in paragraph 209(c) of this Agreement) for at least two years, who has been listed on the income affidavit of the tenant/cooperator for at least two (2) consecutive reporting periods immediately prior to the date of such determination . . . (emphasis added)
Section 210(a)(ii) goes on to provide that the putative successor family member must prove "emotional and financial commitment and interdependence" between him/her and the tenant through a non-exhaustive list of criteria.
Section 209(c) of the Agreement provides that a tenant must maintain his/her apartment as his/her primary place of residence, and provides that factors as to whether a tenant does in fact occupy his/her unit as a primary place of residence include, without limitation:
(1) whether he/she specifies an address other than the dwelling unit as his/her residence on "any tax return, motor vehicle registration, driver's license or other document filed with a public agency;"
(2) whether he/she provides a different address as his/her voting address; or
(3) whether he/she spends less than 183 days out of the year in the unit.
While Section 209(c) provides that the foregoing are "factors to be considered" in determining whether or not a person occupies the subject unit as a primary place of residence, the subsection further provides as follows:
However, no dwelling unit may be considered the primary residence of the tenant/cooperator unless the tenant/cooperator provides proof that he or she either filed a New York City Resident Income Tax Return at the claimed primary residence for the most recent preceding taxable year for which such return should have been filed or that the tenant/cooperator was not legally obligated to file such tax return.
Relying on these provisions, AHO Lippa noted that Petitioner "acknowledges owning a house in Tenafly, New Jersey which she inherited from her mother. . . . [Petitioner] filed her Federal tax returns for 2005, 2006, and 2007 using the Tenafly address and the daytime telephone number that the provided in those tax returns is . . . associated with the New Jersey house." AHO Lippa further noted that "Petitioner acknowledged that she also filed New Jersey state income [tax returns] in 2005, 2006 and 2007 using the Tenafly address." AHO Lippa continued, "According to the rules of Mutual regarding primary residence, applicable to an applicant for succession rights under Section 210(a)(ii), since [Petitioner] did not file New York City Resident Income tax returns from the subject apartment in 2005, 2006 and 2007, the subject apartment cannot be considered her primary residence in those years."
AHO Lippa further noted other factors which she found warranted the denial of succession rights. For one, she noted that Petitioner is registered to vote in New Jersey, further observering that she voted in New Jersey in 2004, despite her claiming to have moved into the subject apartment in 2003. In addition,
[Petitioner's] investment documents are all addressed to her at the New Jersey address. Based on the submitted evidence, [Petitioner] maintained a bank account and a credit card during the co-residency period. However, [she] did not submit any bank statements from her [HBSC] account or any credit card statements addressed to her at the subject apartment during the co-residency period. Since no proof was submitted as to [her] address on her [HSBC] and credit car statements during the co-residency period, it is reasonable to conclude that such bank statements and credit card bills were sent to her at her New Jersey home.
AHO Lippa further found that"[d]ocumentation reflecting the subject apartment as Ms. Herman's address during the co-residency period is limited." She found that three letters submitted by neighbors stating that Petitioner resided in the subject apartment failed to sufficiently set forth the factual bases for their assertions that Petitioner resided in the subject apartment. She further found that the writers of two of the letters demonstrated their lack of objectivity in expressing their hopes that Petitioner would be allowed to remain in the apartment. AHO Lippa also found that a letter from Petitioner and Cohen's Rabbi, wherein he stated that he knew Petitioner to live at the subject apartment, to be lacking in "facts or details to support the basis of his knowledge. . . ."
It is well settled that the "[j]udicial review of an administrative determination is confined to the facts and record adduced before the agency'." ( Matter of Yarborough v. Franco, 95 NY2d 342, 347, quoting Matter of Fanelli v. New York City Conciliation Appeals Board, 90 AD2d 756 [1st Dept. 1982]). The reviewing court may not substitute its judgment for that of the agency's determination but must decide if the agency's decision is supported on any reasonable basis. ( Matter of Clancy-Cullen Storage Co. v. Board of Elections of the City of New York, 98 AD2d 635,636 [1st Dept. 1983]). Once the court finds a rational basis exists for the agency's determination, its review is ended. ( Matter of Sullivan County Harness Racing Association, Inc. v. Glasser, 30 NY2d 269, 277-278). The court may only declare an agency's determination "arbitrary and capricious" if it finds that there is no rational basis for the determination. ( Matter of Pell v. Board of Education, 34 NY2d 222, 231).
Here, the court finds that HPD's determination was supported by a rational basis and thus cannot be disturbed. It is undisputed that Petitioner has not demonstrated that she filed New York City Resident Income tax returns from the subject apartment, or alternatively, that she was not legally obligated to do so. Accordingly, she has failed to demonstrate that the subject apartment was her primary place of residence under Section 209(c) of the Agreement, which is expressly incorporated into Section 210(a)(ii) of the Agreement as a necessary criterion for establishing "Family Member" status. While Petitioner claims that this failure should not, ipso facto, disqualify her from succession rights, the language of the Agreement is unambiguous. Whereas other factors concerning primary residence are "to be considered" and are not necessarily dispositive of the issue, the Agreement clearly provides that, notwithstanding any other factors, "no dwelling unit may be considered the primary residence . . . unless" the putative family member demonstrates that he/she filed New York City Resident Income tax returns for the most recent preceding year, or was not legally obligated to do so. The language of this requirement mirrors 28 RCNY § 3-02(n)(4)(iv), which the First Department upheld as constitutional in Nole v. HPD, (2006 NY Slip Op 00687, *1 [1st Dept. 2006]).
Moreover, aside from the preclusive effect of Petitioner's failure to file New York City Resident Income tax returns, the court would nevertheless find that AHO Lippa's determination is entitled to deference. While Petitioner did submit evidence supporting her claim, including a sworn affidavit, letters from neighbors and her Rabbi, and documentary proof listing her address at the subject apartment, "courts may not weigh the evidence or reject the conclusion of the administrative agency where the evidence is conflicting and room for choice exists" ( Jenkins v. Novello, 2008 NY Slip Op 3114, *1 [1st Dept. 2008]).
Lastly, Petitioner was not entitled to an evidentiary hearing ( see Quan v. HPD, 2010 NY Slip Op 1439 [1st Dept. 2010]; Pietropolo v. HPD, 39 AD3d 406 [1st Dept. 2007]).
Wherefore, it is hereby
ADJUDGED that the Petition is denied and the proceeding is dismissed.
This constitutes the decision and order of the court. All other relief requested is denied.