| Matter of 315 E. 72nd St. Owners, Inc. v New York State Div. of Hous.& Community Renewal |
| 2012 NY Slip Op 09175 [101 AD3d 647] |
| December 27, 2012 |
| Appellate Division, First Department |
| In the Matter of 315 East 72nd Street Owners, Inc.,Appellant, v New York State Division of Housing and Community Renewal et al.,Respondents. |
—[*1] Gary R. Connor, New York (Eu Ting-Zambuto of counsel), for New York State Division ofHousing and Community Renewal, respondent. Himmelstein McConnell Gribben Donoghue & Joseph, New York (David Hershey-Webb ofcounsel), for Morton Drosnes, respondent.
Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.),entered January 19, 2012, which denied the petition seeking to annul the determination ofrespondent State of New York Division of Housing and Community Renewal (DHCR), datedJune 6, 2011, denying petitioner's application to deregulate a rent-stabilized apartment, anddismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, withoutcosts.
Supreme Court properly dismissed the petition seeking to annul DHCR's denial ofpetitioner's application for high-income rent deregulation. Contrary to petitioner's contention,DHCR was not required to conduct any further investigation prior to reaching its determination(see e.g. Matter of Classic Realty v New York State Div. of Hous. & CommunityRenewal, 298 AD2d 201 [1st Dept 2002]). The record before DHCR permitted it torationally and reasonably find that respondent Morton Drosnes' daughter, Carrie, had been anoccupant of the apartment on a temporary basis only in the two years preceding service of theincome certification form (ICF), and had vacated the unit in April 2008, approximately one yearprior to the March 3, 2009 service of the ICF. The operative date for determining occupancy isthe date when the ICF is served (seeMatter of 103 E. 86th St. Realty Corp. v New York State Div. of Hous. & CommunityRenewal, 12 AD3d 289, 290 [1st Dept 2004]; Matter of A.J. Clarke Real EstateCorp. v New York State Div. of Hous. & Community Renewal, 307 AD2d 841 [1st Dept2003]). DHCR properly denied the petition for high income deregulation as Carrie's incomeshould not have been considered in the calculation of Drosnes' total household income (see Matter of Chatsworth Realty Corp. vNew York State Div. of Hous. & Community Renewal, 56 AD3d 371 [1st Dept 2008]).[*2]
Petitioner's contention that DHCR improperly acceptedDrosnes' unsworn statement regarding his daughter's occupancy lacks merit, as StateAdministrative Procedure Act § 306 (1) provides, in part, that "[u]nless otherwise providedby any statute, agencies need not observe the rules of evidence observed by courts, but shall giveeffect to the rules of privilege recognized by law." Pursuant to State Administrative ProcedureAct § 306 (1), the burden of proof was on petitioner—as the party who initiated theproceeding—to establish that Drosnes' daughter did not reside in the apartment on atemporary basis.
Drosnes' supplemental response, made one day after the 60-day period, was the result ofDHCR's request for clarification of his initial submission. Any delay may be properly excused(see Matter of Elkin v Roldan, 260 AD2d 197 [1st Dept 1999]), as New York CityAdministrative Code § 26-504.3 (c) (1) does not divest DHCR of "authority to forgive alate filing or excusable default in the sound exercise of its discretion" (Matter of Dworman vNew York State Div. of Hous. & Community Renewal, 94 NY2d 359, 371-372 [1999]).Concur—Mazzarelli, J.P., Moskowitz, DeGrasse, Manzanet-Daniels and Clark, JJ.[Prior Case History: 2012 NY Slip Op 30137(U).]