| Matter of Murphy v New York State Div. of Hous. & CommunityRenewal |
| 2012 NY Slip Op 00115 [91 AD3d 481] |
| Jnury 12, 2012 |
| Appellate Division, First Department |
| In the Matter of Paul Murphy, Respondent, v New YorkState Division of Housing and Community Renewal, Appellant, et al.,Respondent. |
—[*1] Himmelstein, McConnell, Gribben, Donoghue & Joseph, New York (David Hershey-Webbof counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.),entered November 5, 2010, which, among other things, granted the CPLR article 78 petition toannul respondent New York State Division of Housing and Community Renewal's (DHCR)determination, dated October 14, 2009, denying petitioner's appeal from respondent housingcompany's rejection of his application for succession rights to an apartment, unanimouslyaffirmed, without costs.
Supreme Court properly determined that petitioner submitted ample evidence to establishthat he occupied the subject apartment with his parents as a "primary residence" in 1998 and1999, the two years immediately before his parents permanently vacated the apartment (9NYCRR 1727-8.2 [a]). It was arbitrary and capricious for DHCR to deny his appeal solely on theground that no annual income affidavits were filed in 1998 and 1999. While the regulation atissue mandates that tenants of record file annual income affidavits, listing as an occupant thefamily member seeking succession rights (9 NYCRR 1727-8.2 [a] [2] [a]), the relevant inquiry isprimary residency during the relevant time period (Matter of Martino v Southbridge Towers, Inc., 68 AD3d 412, 412[2009]; Matter of Renda v New YorkState Div. of Hous. & Community Renewal, 22 AD3d 382, 382 [2005]). Accordingly,the failure to file the requisite annual income affidavit is not fatal to succession rights, providedthat the party seeking succession proffers an excuse for such failure (Matter of Gilbert v Perine, 52 AD3d240, 241 [2008]; Matter ofCallwood v Cabrera, 49 AD3d 394, 395 [2008]) and demonstrates residency with otherdocumentary proof listed within 9 NYCRR 1727-8.2 (a) (2) (b). Here, petitioner's mother offeredsuch an excuse which was supported by the record. Moreover, petitioner submitted a host ofother documents evincing that the subject apartment was in fact his primary residence for the[*2]relevant time period, namely 1998 and 1999. Respondent'sdetermination, denying petitioner succession rights to the subject apartment, was thus arbitraryand capricious.
We have considered DHCR's remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Andrias, Saxe, Freedman and RomÁn, JJ. [Prior CaseHistory: 29 Misc 3d 1213(A), 2010 NY Slip Op 51816(U).]