| Matter of Meyers v New York State Div. of Hous. & CommunityRenewal |
| 2009 NY Slip Op 09588 [68 AD3d 1518] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Joel Meyers, Respondent, v New YorkState Division of Housing and Community Renewal et al.,Appellants. |
—[*1] Aaron D. Frishberg, New York City, for respondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Teresi, J.), entered April 9, 2009in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLRarticle 78, to annul a determination of respondent Division of Housing and Community Renewaldenying petitioner succession rights to an apartment.
Petitioner seeks succession rights to a Mitchell-Lama apartment located in Manhattan inwhich his father resided from 1992 until his death in 1995 (see Matter of Schorr v New YorkCity Dept. of Hous. Preserv. & Dev., 10 NY3d 776, 777 n 1, 778 [2008] [briefly describingthe Mitchell-Lama Law]). Respondent Division of Housing and Community Renewal(hereinafter DHCR) has interpreted its regulation (see 9 NYCRR 1727-8.3 [a]) asessentially setting forth the following three requirements for a person seeking succession rights:(1) the person must be a member of the vacating tenant's family; (2) the person must haveresided with the tenant as a primary residence for the shorter of two years (one year for a seniorcitizen or disabled person) or from the inception of the tenancy or commencement of therelationship; and (3) the person must have been listed on a notice of change to the tenant's familyand/or on the tenant's income affidavit during the applicable one or two-year period. The failureof a tenant to provide written notice of a new occupant is not fatal when such person is listed insubsequent annual affidavits.[*2]
Petitioner, who asserts he is disabled, was not included asa new occupant by his father and was not listed on his father's income affidavits during the timehis father resided in the apartment. Petitioner's application for succession rights was thus refused.That determination was upheld on administrative appeal in a decision that also noted a numberof discrepancies in petitioner's documentation. He then commenced this CPLR article 78proceeding arguing, among other things, that DHCR's action and its interpretation of theregulation was arbitrary. Supreme Court found that the language of the pertinent regulationunambiguously established that, as to a disabled person, such person need only show, first, thatthe person was a member of the tenant's family and, second, that the person had been disabledfor at least a year before the tenant's death. Based upon this interpretation of the regulation,Supreme Court granted the petition. Respondents appeal.
In a recent case involving a DHCR determination, the Court of Appeals reiterated theapplicable rational basis standard for judicial review of administrative agency action, noted thatif a rational basis exists then the reviewing court "must sustain the determination even if [it]concludes that it would have reached a different result than the one reached by the agency," andacknowledged that "courts must defer to an administrative agency's rational interpretation of itsown regulations in its area of expertise" (Matter of Peckham v Calogero, 12 NY3d 424,431 [2009]). The pertinent portion of the relevant regulation provides: "if the tenant haspermanently vacated the housing accommodation, any member of such tenant's family, asdefined in section 1727-8.2 (a) (2) of this Subpart, who has resided with the tenant in the housingaccommodation as a primary residence for a period of not less than two years, has been listed onthe income affidavit and/or on the Notice of Change to Tenant's Family as required under section1727-3.6 of this Part, or where such person is a senior citizen or a disabledperson as defined in section 1727-8.2 (a) (3) and (4) of this Subpart, respectively, for aperiod of not less than one year, immediately prior to the permanent vacating of the housingaccommodation by the tenant, or from the inception of the tenancy or commencement of therelationship, if for less than such periods, may request to be named as a tenant on the lease"(9NYCRR 1727-8.3 [a]).
This regulation is not a model of clarity. While the interpretation of the regulation urged bypetitioner and used by Supreme Court is perhaps feasible, we are unpersuaded that thelong-standing interpretation ascribed to the regulation by DHCR lacks rationality. Theconvoluted language can be read consistent with DHCR's construction of the regulation. DHCR'sinterpretation is not at odds with earlier cases (see e.g. Rent Stabilization Assn. of N.Y. Cityv Higgins, 83 NY2d 156, 167, 171 [1993] [noting in parenthesis that the co-residencyrequirement of two years is shortened to one year in the cases of the elderly or disabled];Matter of Greichel v New York State Div. of Hous. & Community Renewal, 39 AD3d421, 422 [2007] [no right to succession where not listed on income affidavits of tenant]). WhenDHCR's interpretation is read in context and in conjunction with the other relevant regulations(see e.g. 9 NYCRR 1727-8.2, 1727-8.3, 1727-8.4), its interpretation is rational (seeMatter of Pletcher v New York State Racing & Wagering Bd., 35 AD3d 920, 921-922[2006], lv denied 9 NY3d 802 [2007]). Moreover, as described by respondents at somelength, the established interpretation of succession rights strikes a balance among variouscompeting policies, including the interests of those on the long waiting lists for housing as wellas those family members who have actually lived with a tenant and whose income was properlyreported during such time so as to arrive at a fairly allotted rent.
Petitioner's further arguments, including his contention that DHCR's determination was notsupported by substantial evidence, have been considered and found unavailing.[*3]
Cardona, P.J., Kavanagh, McCarthy and Garry, JJ.,concur. Ordered that the judgment is reversed, on the law, without costs, and petition dismissed.[Prior Case History: 23 Misc 3d 1102(A), 2009 NY Slip Op 50549(U).]