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Decided on March 23, 2011
Supreme Court, New York County

115416/2010
Petitioner Roderick Rowan was pro se.
Respondent Esplanade Gardens, Inc. was represented by Tanya M. Owens, Esquire, of Kagan Lubic
Lepper Lewis Gold & Colbert, LLP.
Respondent NYC HPD was represented by Jacqueline Hui, Esquire, Assistant Corporation Counsel,

of the Corporation Counsel of the City of New York. Anil C. Singh, J.
Petitioner Roderick Rowan ("Rowan") brings this Article 78 proceeding to vacate the determination of respondent New York City Department of Housing Preservation and Development ("HPD") denying him succession rights to his sister and brother-in-law's apartment. Respondents oppose the petition.
Respondent Esplanade Gardens is a housing company organized under the Mitchell-Lama Law. It owns the building at 2569 Seventh Avenue (the "subject building") in Manhattan.
Cheryl Rowan Ellis and James Ellis were the tenants of apartment 24C. Mr. Ellis died on January 5, 2004.
In order to obtain occupancy rights in Mitchell-Lama housing, an individual must be approved from a waiting list or qualify for succession rights according to the HPD rules set forth at in the Official Compilation of the Rules of the City of New York (RCNY).
Subsequent to the death of James Ellis, petitioner requested succession rights from Esplanade Gardens pursuant to HPD's rules and regulations.
By letter dated March 16, 2010, Esplanade Gardens notified petitioner that he could not retain possession of the apartment based on his failure to meet the eligibility requirements set forth in section 3-02(p) of the RCNY. The letter stated in pertinent part:
Esplanade is denying your request for succession rights based on the following:
The original Stock Certificate and Occupancy Agreement for the Apartment is in the name of Cheryl Rowan Ellis and James Ellis; [*2]
Upon information and belief you have not submitted documentation to prove that you co-resided in the Apartment as your primary residence for at least two (2) years prior to the vacature of Cheryl Rowan Ellis and/or James Ellis (the last tenants of record);
Neither Cheryl Rowan Ellis nor James Ellis have appeared on the income affidavits since at least calendar year 2005; and
No one else was granted permission or consent to occupy and/or reside in the Apartment.
(Verified Answer, exhibit A, p. 1)
By letter dated March 22, 2010, HPD notified petitioner that he could contest Esplanade Gardens' decision denying succession rights and that he could "submit additional relevant information even if not previously provided to the housing corporation." HPD's determination would be based on the documentation petitioner submitted.
In response, petitioner notified HPD that he wanted to contest the landlord's denial, and he submitted some documents to prove that he met the succession criteria.
Administrative Hearing Officer Frances Lippa issued a Denial of Succession Rights dated July 28, 2010. The Hearing Officer's decision stated:
James Ellis and Cheryl Ellis are the tenant/cooperators for the subject apartment (hereinafter also referred to as the tenants) pursuant to an undated Occupancy Agreement. James Ellis died on January 5, 2004. According to his death certificate, his usual residence at the time of his death was Highland Lake, New Jersey and not the subject apartment. Additionally, Cheryl Ellis, as the informant on her husband's death certificate, was listed as residing at the same New Jersey address as her husband. For purposes of this decision, I shall apply January 5, 2004 as the date that both tenants vacated the subject apartment. Therefore, the required co-residency period is January 5, 2002 through January 5, 2004.
Caroline Rowan, Roderick Rowan's mother, lived in apartment 2 C in the same building as the subject apartment. Ms. Rowan wrote that Mr. Rowan moved into the subject apartment in 2003 and Mr. Rowan wrote that he co-resided with his brother-in-law since late 2002. Based on the statements of Carolina Rowan and Roderick Rowan, Roderick Rowan could not have co-resided with either tenant for two years before their January 4 2004 vacatur of the apartment.
Mr. Rowan acknowledges receiving mail at his mother's apartment after he claimed to have moved into the subject apartment. Roderick Rowan's paystub dated September 26, 2003 reflects his address as apartment 2 C, his mother's apartment, at the subject building.
The first page of Mr. Rowan's uncertified New York State tax return for 2003 reflects his address as the subject apartment. However, this return is not dated and there is no way of knowing if it was filed before the tenant's January 4, 2004 death.
With the exception of the copy of the first page of his 2003 New York State tax return, [*3]Mr. Rowan did not submit any documentation reflecting the subject address as his address during the co-residency period.
Mr. Rowan did submit some limited documentation reflecting the subject building as his address, but that documentation does not include an apartment number. Since Mr. Rowan's mother resided in a different apartment at the subject building, documents that do not include an apartment number for Mr. Rowan, including his New York State driver's licence, are not credible, reliable proof of the required co-residency.
Mr. Rowan did not submit W-2s, bank statements or general correspondence addressed to him at the subject apartment at any time during the requisite co-residency period. No other applicant submitted any proof of the required co-residency.
Roderick Rowan has failed to prove the required co-residency. Thus, regardless of any family relationship to the tenants, Mr. Rowan is not entitled to succession rights to the subject apartment.
The succession rights appeal is denied and a certificate of eviction is hereby issued against Roderick Rowan, Iesha Johnson a/k/a Iesha Rowan and John Doe and Jane Doe.
(Verified Answer, exhibit I).
Several months later, petitioner sent a letter to the hearing officer dated October 28, 2010. It stated:
I am writing to appeal the denial of my request for succession rights to apartment 24C. My mother was looking in some papers and found the affidavit for the year 2002[.] I was listed on the affidavit for two years prior to my sister Cheryl Ellis moving out and prior to the death of her husband passing in 2004. [E]nclose[d] please find a copy of the affidavit for 2002. I have lived in apartment 24C from 2002 until present. I hope this will help with my appeal for succession rights, and to please put my name on the stock certificate.
(Verified Answer, exhibit J).
In a letter dated November 3, 2010, the hearing officer notified petitioner that the copy of the income affidavit for calendar year 2002 did not provide a basis to alter the decision denying succession rights.
Petitioner commenced the instant Article 78 proceeding by filing a verified petition in the Supreme Court on November 24, 2010. Mr. Rowan alleges that the landlord deliberately withheld evidence showing that petitioner was listed on the annual household income affidavits from 2002 onward. According to Rowan, the instant Article 78 petition is based on "newly found evidence." He contends that the tenant/shareholder annual household income affidavit for calendar year 2002 lists him as a resident of the subject apartment. Furthermore, he is listed on every tenant/shareholder income affidavit for calendar years 2004, 2005 and 2006. Mr. Rowan [*4]states that he cannot find the affidavit for 2003. He alleges that Esplanade Gardens is in possession of the 2003 affidavit and has intentionally withheld it.
Petitioner exhibits several documents in support of the petition. The specific documents exhibited are: 1) sworn affidavits dated January 20, 2011, signed by his sister Cheryl Rowan Ellis and his mother Caroline Rowan; 2) a copy of a letter dated March 23, 2002, signed by an assistant to Assemblyman Herman D. Farrell, Jr.; 3) a notarized letter dated January 19, 2011, signed by Carter Avery, an employee of Assemblyman Farrell; 4) the sworn affidavit of Earnestine B. Temple; 4) a notarized letter signed by Gabriela Rosa; 5) tax returns; and 6) household income affidavits for calendar years 2001, 2002 and 2004.
Discussion
The role of a court in reviewing a decision of an administrative agency, such as HPD, is limited, with the standard of review being whether the administrative determination was in violation of a lawful procedure or was affected by an error of law or was arbitrary and capricious and without a rational basis in the administrative record (see, CPLR 7803; Matter of Pell v. Board of Educ., 34 NY2d 222, 231 [1974]). The court cannot conduct a de novo review of the facts and circumstances or substitute the court's judgment for that of the agency's determination (see, Greystone Management Corp. v. Conciliation and Appeals Bd., 94 AD2d 614, 616 [1st Dept. 1983], affd. 62 NY2d 763 [1994]). Instead, the court reviews the record as a whole to discern whether a rational basis exists to support the findings of the administrative agency (Nelson v. Roberts, 304 A.D.2 20 [1st Dept. 2003]). "If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency" (Peckham v. Calogero, 12 NY3d 424, 431[2009]).
Where an administrative determination necessitates an evaluation of the facts within an administrative entity's area of expertise, the determination must be accorded great weight and judicial deference (Nelson v. Roberts, 304 AD2d 20, 23 [1st Dep't 2003]; Flacke v. Onondaga Landfill Systems, Inc., 69 NY2d 335, 363 [1987]). While judicial review must be meaningful, it is not the role of the courts to weigh the desirability of any action or to choose among alternatives (6 NY Jur.2d Article 78 sec. 13). "The judicial function is at an end once it has been determined that an agency's conclusion has a sound basis in reason" (6 NY Jur.2d Article 78 sec. 15).
Petitioner asserts that he should be entitled to succession rights based on the Tenant/Shareholder Annual Household Income Affidavits. However, the inclusion of a petitioner in income affidavits does not, in and of itself, establish his entitlement to succession rights as a matter of law (Hochhauser v. City of New York Department of Housing Preservation and Development, 48 AD3d 288, 289 [1st Dept. 2008]). Rather, HPD is "entitled to consider the lack of objective documentary evidence supporting petitioner's claim" and "inconsistencies among the documents that were submitted" (Id.).
Here, HPD's determination denying petitioner succession rights is consistent with its own rules and precedents. Accordingly, there is a rational basis for the determination. In this regard, the court notes that HPD retains some measure of discretion in directing who may succeed to an apartment (Matter of Cadman Plaza N. v. New York City Dept. of Hous. Preserv. & Dev., 290 AD2d 344, 344 [1st Dept. 2002]).
Petitioner asserts that his newly-presented evidence shows that he should be entitled to [*5]succeed to the apartment. However, as we stated above, this court does not have the authority to conduct a de novo review of the facts and evidence in an Article 78 proceeding. Therefore, we cannot consider documents that were not part of the administrative record.
For the above reasons, the court finds that the hearing officer's determination was rationally based on the evidence and governing law and was, therefore, neither arbitrary nor capricious.
The petition is denied, and the proceeding is dismissed.
The foregoing constitutes the decision and order of the court.
Date:March 23, 2011______________________________
New York, New YorkAnil C. Singh

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