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Matter of Westbrook v HPD & Riverbend Hous. 2013 NY Slip Op 30292(U) February 4, 2013 Sup Ct, New York County Docket Number: 401907/11 Judge: Michael D. Stallman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: Hon. MICHAEL D. STALLMAN
Justice

PART 21

In the Matter of the Application of

INDEX NO.

401907111

TRACl WESTBROOK,
Petitioner,
-v-

MOTION DATE

I l 5112 Il

MOTION SEQ. NO.

001

HPD and RIVERBEND HOUSING,
Respondents.

Affidavit of Support of P e t i t i o k ? a o of Law In Support of P ttw *eii - Exhibits 1- 5, 6 [Affidavits] ~. , " , ,,~., dZ+.mwb- dad-*-"-n Verified Answer-Affidavit

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.u.kyIh@Y')' ' 8-1I

of Service

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12-13

Upon the foregoing papers, it isADJUDGEDthat this petition is denied, and the proceeding is dismissed. In this Article 78 proceeding, petitioner challenges the determination of the New York City Departmentof Housing Preservationand Development, sued herein as respondent HPD,which denied petitioner's appeal to succession rights to a Mitchell-Lamaapartment in the building locatedat 2301 FifthAvenue in Manhattan, owned by Riverbend Housing Co., Inc., sued herein as respondent Riverbend Housing. The tenant of record, petitioner's father, died on March 27,2009.

Ina determination dated March 28,2011, the HearingOfficer ruled, based on documentary evidence,
"Traci Westbrook has the burden of proving her entitlement to succession rights to the subject apartment. The extremely limited documentation reflectingthe subject apartmentas Ms. Westbrook's (Continued.
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Matter of Westbrook v HPD andRiverbendHous., Index No. 401907/201I
address is not sufficient to prove the required co-residency. Ms. Westbrook maintained a bank account, received unemployment compensationand was employed during the co-residency period but she failed to submit any bank statements, unemployment compensation records or W-2s as proof of her primary residence in the subject apartment during the requisite co-residency period. Furthermore, the conflicting addresses for Ms. Westbrook on the transcripts of her 2008 federal tax returns calls into question her actual primary residence in 2008.

I note, based on the documentation, that even if a one year
co-residency period were applied in this case, Ms. Westbrook would still have failed to prove the required co-residency. Traci Westbrook is a family member of the tenant and she was included as an occupant of the subject apartment on the relevant income affidavits. However, Ms. Westbrook has failed to provethe required co-residency and therefore she is not entitled to success ion rights ." (Verified Petition, Ex A; HPD Verified Answer, Ex I.) Judicial review of an agency's determination is limited to whether the determination was arbitrary and capricious or an abuse of discretion or made in violation of a lawful procedure or was affected by an error of law. (CPLR 7803; Flacke v Onondaga Landfill Sys., 69 NY2d 355 [9871); MatterofPell I v Board of Educ. of Union Free School Dist. No. I of Towns of Scarsdale & Mamaroneck, Westchester Comfy, 34 NY2d 222 (1974). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken "without sound basis in reason and without regard to the facts." (Matterof Pell, 34 NY2d at 231.) In order to succeed to leasehold rights in this Mitchell-Lama apartment pursuant to 28 RCNY 5 3-02(~)(3),petitioner bore the burden of establishing that she resided there with her father, as her primary residence (28 RCNY 5 3-02 [n] [4]). (Pietropolo vNew York City Depf. of Hous. Preserv. & Dev., 39AD3d 406,407 [lst Dept 20071.) The period of primary residency is not less (Continued. . . )
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Mafferof WesfbrookvnPDandRiverbendHous.,Index No. 4019071201I than two years prior the tenant's permanent vacating of the apartment, but where the personseeking succession rights is a disabled person, the period of residency is not less than one year. (28 RCNY 3-02[p] [3].) Here, petitioner argues that the HearingOfficer should have applied the one year period of co-residency because she is disabled. In support of her contention that she is disabled, petitioner submits excerpts of a six page decision dated January 6,201 Ifrom Social Security Administration Office of , Disability Adjudication and Review, which found that petitioner has been disabled since December 5, 2008. (Verified Petition, Ex C.)

As HPD indicates, the determinationof the SocialSecurity Administration
was not and could not have been presentedto the Hearing Officer. By letter dated October 19,2010, the Hearing Officer informed petitioner, "You must submit all documentsyou wish to have considered inthis appeal by November 24,201 0." (VerifiedAnswer, Ex C.) Becausethis evidence was not presented to the HearingOfficer, the Court cannot considerthis in support of petitioner's contention that the Hearing Officer ought to have determined, based on the Social Security Administration's decision that petitioner was disabled.

In any event, the Hearing Officer stated, "I note, based on the documentation,that even if a one year co-residency periodwere applied in this case, Ms. Westbrook would still have failed to provethe required co-residency."
The determination that petitioner did not sustain her burden was not affected by an error of law, and was not irrational, unreasonable, or arbitrary and capricious. "[A]n agency has great discretion in deciding which evidence to accept and how much weight should be accorded particular documents or testimonial statements, and its determinationin that respect is subject only to the legal requirement that the administrative finding be rationally based or, where appropriate, supported by substantial evidence." (MafterofKoganv Popolizio, 141 AD2d 339 [ " IDept 19881.) Here, the HearingOfficer found that the evidencethat could affirmatively substantiate any portion of the period of co-residency, whether it be one year or two years, was insufficient. Petitionerwas apparentlysent a suggested list of documentsto assist her in proving the requisite primary residency. (Verified (Continued.. . )
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Mafterof Westbrook v H P D andRiverbendHous., Index No. 4019071201' I

Answer, Ex C [L`DocumentSto Prove Primary Residency"].) The list includes 15 categories of documents, and states at the bottom, "FAILURE TO SUBMITTAX RETURNS COULD RESULT INA FINDINGTHATTHE SUBJECTAPARTMENT WASAS NOT YOUR PRIMARY RESIDENCE." (/ti) Many documents that petitioner submitted to the Hearing Officer fall within the category of publications and other general correspondence addressedto petitioner, but many of those mailings did not have US postmarks which bore dates to corroborate the period of primary residence. (Verified Answer, Ex D.) As the Hearing Officer noted, petitionersubmittedtwo copies of petitioner's tax return transcript for the 2008 tax year, but one copy bears a different address for petitioner than the apartment at issue. (/d) The Hearing Officer apparently drew negative inferences based on petitioner'sfailureto submit documents which the Hearing Officer would have expected petitioner to have in her possession, which were among the categories of documents on the suggested list. The Hearing OfFicer's decision states, "Additionally, significant documents that would have reflected Ms. Westbrook's address were not provided as proof of the required residency." (VerifiedAnswer, Ex I.) For example, the HearingOfficer's decision states that petitioner did not provide W ~ S , documentationfrom her employer, pension or annuity documents despite tax returnsand transcripts indicatingthat petitioner had earned income, including taxable income from a pension orannuity. The Hearing Officer again noted that petitionerdid not submit any bank statements, even though unemployment compensation was deposited directly into petitioner's bank account.

On this Article 78 petition, petitioner submits unsworn statements
([Reply] Mem. of Law, Ex 5), and affidavits from the Assistant PropertyManager at RiverbendHousing Co., and from a board memberfrom the RiverbendBoard of Directors. However, these submissions are unavailing, "since review of an agency determination is limited to the `facts and record adduced before the agency."' (Belok vNew York City Dept. ofHous. Presew. & Dev., 89 AD3d 579, 580 [ l s t Dept 20111 [citation omitted].) As petitioner's attorney notes, the Hearing Officer's determination was (Continued.. . )

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Matter o f Wesfbrook ~HPDandRiverbendHous., Index No. 401907/201I

largely based on weighing the probative value and reliability of documentary evidence, against petitioner's contention that she necessarily resided in the apartment as her primary residence in order to care for her dying father. As HPD indicates, "petitioner's challenges to the credibility determinationsof the administrativeagency are unavailing because, in an Article 78 proceeding,the reviewing court may notweigh the evidence, choose between conflicting proof, or substitute its assessment for that of the administrativefact finder." (Matter ofPorfervNew YorkCify Hous. Auth., 42AD3d 314 [Ist Dept 20071; Matter of Aponfe v New York City Hous. Auth., 48 AD3d 229 [ " 20081.) IDept ` Contrary to petitioner's argument, petitioner was not entitled to an evidentiary hearing, because the regulation underwhich she claimssuccession rights ``did not provide for a hearing." (Pietropolo,39ADSd at 407.) Therefore, the petition is denied and the proceeding is dismissed.

The Court's efforts to persuadethe agency to reevaluate its determination were to no avail.

Dated:

/@/I New York, New York
CASE DISPOSED GRANTED DENIED

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................................................................ 2. Check if appropriate:............................ PETITION 3. Check if appropriate:................................................
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ISfJ

0GRANTED IN PART 0OTHER 0SUBMIT ORDER

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