| Belok v New York City Dept. of Hous. Preserv. & Dev. |
| 2011 NY Slip Op 08306 [89 AD3d 579] |
| November 17, 2011 |
| Appellate Division, First Department |
| Adam Belok, Appellant, v New York City Department ofHousing Preservation and Development et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Alyse Fiori of counsel), for NewYork City Department of Housing Preservation and Development, respondent. Barry Mallin & Associates, P.C., New York (Michael Schwartz of counsel), for MutualRedevelopment Houses, Inc., respondent.
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 YorkCity Department of Housing Preservation and Development (HPD), dated March 16, 2009,denying petitioner succession rights to the subject cooperative apartment and issuing a certificateof eviction against petitioner, and dismissed this proceeding brought pursuant to CPLR article78, unanimously affirmed, without costs. Order, same court (Saliann Scarpulla, J.), enteredNovember 15, 2010, which, to the extent appealed from as limited by the briefs, denied plaintiff'smotion to renew and reargue, deemed to be an order denying a motion only to reargue, and, soconsidered, the appeal therefrom unanimously dismissed, without costs, as taken from anonappealable order.
The determination that petitioner did not sustain his burden of establishing his entitlement tosuccession 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 AD3d 528 [2010], lv denied 17 NY3d 703 [2011];Matter of Hochhauser v City of N.Y.Dept. of Hous. Preserv. & Dev., 48 AD3d 288 [2008]). The governing regulatoryagreement required that persons seeking succession rights be listed on annual income affidavitsfor the two years prior to the departure of the cooperator of record. Petitioner's mother died inAugust 2007, and he concedes that he did not provide the hearing officer with a copy of anincome affidavit for calendar year 2006. Petitioner's submission of a copy of the affidavit withhis 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 NY2d342, 347 [2000] [internal quotation marks and citation omitted]). In any event, even apart fromthe missing income affidavit, the documentary evidence reviewed by the hearing officercontained numerous inconsistencies relating to petitioner's address, including inconsistencies inthe addresses given in tax returns filed by petitioner during [*2]the relevant time period (see Hochhauser, 48 AD3d at 289).
Petitioner was not entitled to an evidentiary hearing. The regulatory agreement under whichhe sought succession rights does not provide for a hearing, and the procedures adhered to byHPD afforded petitioner due process (see Quan, 70 AD3d at 528). The evidencepetitioner claims he would have provided at an evidentiary hearing could have been provided asdocumentary evidence, and petitioner does not assert that he was denied an opportunity to submitsuch evidence (see Matter of Mayfield vEsplanade Gardens, Inc., 30 AD3d 296 [2006], appeal dismissed 7 NY3d 864[2006]).
The record does not support petitioner's claim that HPD or Supreme Court discriminatedagainst him because he lived in the subject apartment while his wife and children lived inDutchess County. HPD and the court merely found that petitioner had not proved that he engagedin that living arrangement for the relevant time period.
Petitioner's motion to renew and reargue raised no new facts and is therefore properly viewedas one for reargument only, the denial of which is not appealable (Pizarro v Evergreen Estates Hous., 5AD3d 143, 143-144 [2004]). Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Acostaand Abdus-Salaam, JJ.