| Matter of Martino v Southbridge Towers, Inc. |
| 2009 NY Slip Op 08870 [68 AD3d 412] |
| December 1, 2009 |
| Appellate Division, First Department |
| In the Matter of Krista Martino, Appellant, v SouthbridgeTowers, Inc., Respondent, and New York State Division of Housing and Community Renewal,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York (Robert C. Weisz of counsel), for Divisionof Housing and Community Renewal, respondent.
Order and judgment (one paper), Supreme Court, New York County (Edward H. Lehner, J.),entered January 14, 2008, which denied petitioner's application to annul respondent Division ofHousing and Community Renewal's (DHCR) denial of her appeal from a housing company'srejection of her application for succession rights to an apartment, and granted DHCR's crossmotion to dismiss the proceeding brought pursuant to CPLR article 78, unanimously affirmed,without costs.
The determination that petitioner did not have the right to succeed to the subject apartmentupon the death of the tenant of record has a rational basis. The housing company was nevernotified in writing that petitioner had assumed occupancy in the apartment (see 9NYCRR 1727-3.6), and when the tenant of record died on January 6, 1999, the only credibleevidence that the apartment was petitioner's primary residence was the affidavit of income filedby the tenant of record in April 1998 listing petitioner as a resident of the apartment.Accordingly, even accepting petitioner's claim that she should be considered disabled, she failedto demonstrate that the unit was her primary residence for the required time period (see 9NYCRR 1727-8.2 [a] [5]; 1727-8.3 [a] [two years, or one year if a disabled person]; Matter of Greichel v New York State Div.of Hous. & Community Renewal, 39 AD3d 421 [2007]; Matter of Johnson v Stateof N.Y. Div. of Hous. & Community Renewal, 213 AD2d 345 [1995]). Contrary topetitioner's argument, the listing of her name on the affidavit of income filed in April 1998 didnot establish her occupancy of the apartment in 1997.[*2]
We have considered petitioner's remaining contentions,including that she was denied due process in the proceedings before DHCR, and find themunavailing. Concur—Tom, J.P., Sweeny, Moskowitz, Acosta and Abdus-Salaam, JJ.