

Matter of Horne v Wambua (2016 NY Slip Op 06958)





Matter of Horne v Wambua


2016 NY Slip Op 06958


Decided on October 25, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on October 25, 2016

Tom, J.P., Mazzarelli, Richter, Manzanet-Daniels, Webber, JJ.


2012 101134/13

[*1]In re Clarence Horne, Petitioner-Appellant,
vMatthew M. Wambua, etc., et al., Respondents-Respondents.


William E. Leavitt, New York , for appellant.
Zachary W. Carter, Corporation Counsel, New York (Marta Ross of counsel), for respondents.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered November 26, 2013, denying the petition to annul a determination of respondent Department of Housing Preservation and Development (HPD), dated April 8, 2013, which denied petitioner succession rights to a Mitchell-Lama apartment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The determination denying petitioner succession rights to the subject apartment has a rational basis in the record and was made in accordance with lawful procedure (CPLR 7803). Petitioner failed to demonstrate that the apartment was his primary residence from the inception of his late wife's tenancy (less than two years before her death) and that he was listed on the income affidavit submitted during that time period (28 RCNY 3-02[p][3]; Yunayeva v Kings Bay Hous. Co., Inc., 94 AD3d 452, 453 [1st Dept 2012]). Petitioner did not submit any of the suggested proofs of primary residency, such as bank statements, voter registration statements, or bills addressed to him at the apartment, and the affidavits and 2011 W-2 form that he submitted do not conclusively establish co-residency during the relevant time period (see Matter of Hochhauser v City of N.Y. Dept. of Hous. Preserv. & Dev., 48 AD3d 288 [1st Dept 2008]).
Petitioner "may not invoke the doctrine of estoppel to  prevent HPD from executing its statutory duty to provide Mitchell-Lama housing only to individuals who meet the specified eligibility requirements'" (Matter of Quinto v New York City Dept. of Hous. Preserv. & Dev., 78 AD3d 559, 559-560 [1st Dept 2010], quoting Matter of Schorr v New York City Dept. of Hous. Preserv. & Dev., 10 NY3d 776 [2008]). Nor is he entitled to an evidentiary hearing since HPD's procedures pursuant to its regulations for determining succession rights satisfy due process
(see Matter of Hochhauser, 48 AD3d at 289; Matter of Pietropolo v New York City Dept. of Hous. Preserv. & Dev., 39 AD3d 406, 407 [1st Dept 2007]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 25, 2016
CLERK


